question of costs. I think the question of costs ought not to depend on what the party will, or will not, do hereafter. If on the merits of the cause he is entitled to costs, I ought not to refuse them by way of punishment, because he objects to do what is considered as right in regard to future proceedings.(1)

The answer, though not evidence in the cause, may be read as to the point of costs; and I did read it for that purpose. The deposition cannot be read as to costs, not having been read as evidence in the cause. The bill must be dismissed, but without

costs.

[13] WEBBER v. HUNT. July 21, 1815.

On a decree against a mortgagee in possession to account, rests cannot be made by the Master, unless directed by the decree.

A bill was filed to redeem a mortgage, and the usual decree was made against a mortgagee in possession, viz., to take an account of what was due for principal, interest, and costs, and of what had been, or might have been, received by rents and profits.

[14] Mr. J. Martin moved, under the circumstances of the case, to rectify the minutes of the decree, and for a direction that the Master, in taking the account of rents and profits, should be directed to make rests.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. I have, upon inquiry, found a difference of practice amongst the Masters: some Masters make rests without any specific direction in the decree for that purpose, and some do not, but merely totalise the principal, interest, and costs, and the rents and profits. The Master is not at liberty to make rests unless directed to do so by the decree. In Robinson v. Cumming (2 Atk. 409, 410), the decree particularly directed annual rests to be made. In Gould v. Tancred (2 Atk. 533), Lord Hardwicke was of opinion that exceptions to a Master's report, because he had not made annual rests, could not be sustained, the decree not having directed them; and lately, the Master of the Rolls, in Davis v. May (2 May 1815), held that rests cannot be made, unless specially directed by the decree. In Fowler v. Wightwick (A. D. 1810), before Lord Eldon, the Master made rests, though the decree did not direct them, which the Chancellor held to be wrong. In Yates v. Hambly (2 Atk. 362), it appears, on consulting the register's book, that the form of the decree was, 'That an account should be taken of what shall be coming due on account of rents and profits, to be applied, in the first place, in payment of interest and principal, and in sinking the principal, and the Master to make annual rests; and in taking such account is to make all [15] just allowances." This is the proper form of the decree where rests are to be made, but rests can never be made by the Master unless specifically directed by the decree. In the present case annual rests are proper, and the minutes must be altered accordingly.(2)

66

[15] Ex parte LYNCH AND ANOTHER. July 25, 26, 1815.

Prohibition refused, to Judge of the Prize Court, to enjoin him from proceeding in a case involving a question of prize.

This was a petition to the Chancellor, directed by him to be heard by the ViceChancellor, praying that a writ of prohibition, returnable in the Court of King's Bench, might issue, directed to the Right Honourable the Judge of the Admiralty Prize

(1) His Honor, in the subsequent case of Thomson v. Leake and Others, expressed himself to the same effect.

(2) In Lord Harcourt's MS. Tables there is the following passage: "Accounts to be taken with an annual rest; each year's account to carry interest, in cases where trustee has paid off encumbrances with his money; likewise in cases of arrears of annuities, and old mortgages. Bradshaw v. Ashley, 2 April 1717." Dom. Proc. S. C. 4 Bro. P. C. 505, Tom. ed.

Court, to prohibit him from further proceedings, or holding plea before him in any manner touching or concerning the premises. The petition stated that the British ship "Harmony" sailed from Oporto for London, on the 26th of February 1815, and was taken as prize by an American privateer on the 2d July following, off Cape Finisterre, and all the crew, except John Nelson, the mate, were taken into the privateer; and an American prize-master and one other American, with five Frenchmen, were put on board the prize, with directions to the prize-master to [16] carry the ship into some port of the United States; and the prize-master shaped his course for that purpose. On the subsequent 24th of March, in latitude 42, 47 north, and longitude 28, 13 west, Nelson killed the prize-master (the Frenchmen not opposing him), and brought the ship and cargo to England, where he arrived on the 7th April. Proceedings were instituted in the Admiralty Prize Court, by Nelson, in respect of this recapture, and by the owners of the ship and cargo, when she was first captured; and on the 6th of May the Court pronounced the ship and cargo to be British property, and to have been taken by the enemy, and retaken by Nelson; and that one-tenth of the value was due to him for salvage, and accordingly condemned the ship for salvage and expenses; and directed that the ship and cargo should be restored to such owners on payment of salvage and expenses, which amounted to £1390 and were afterwards paid. On the 26th of the same month of May the commander of the American privateer obtained a monition in the Court of Prize against Nelson, the recaptor, and the owners of the ship and cargo, to shew cause why such ship and cargo should not be decreed to be released from the recapture and seizure, as having been effected after the period specified in the Treaty of Peace between Great Britain and the United States of America.(1) On the return of [17] the monition an appearance was entered on the part of the Petitioners (the owners of the ship and cargo at the time of the capture), to save contumacy, but under protest; and they in their defence submitted that the Prize Court had no jurisdiction to proceed to the cognizance of the matter, nor to try the question as to the recapture of the ship; and that the Court, as a Court of Prize, had no jurisdiction to take cognizance of any seizures made upon the High Seas during peace, but that its authority was limited by the King's commission to the entertaining questions of prize, where captures or recaptures, as prize, had been effected by British subjects during the continuance of hostilities; and that, during hostilities between Great Britain and America, no American subject could maintain any suit or action in any British Court; and that, after the conclusion of peace, no question of prize of war between Great Britain and America could arise in respect of any seizure by the subjects of either nation after the Treaty of Peace, not being in the nature of prize, nor cognizable as such by the Prize Court; and that whatever jurisdiction that Court might have of it had already been [18] exercised; and that the Court had no power to reverse its decree; but that, if any persons were injured, the High Court of Appeal was the Court to resort to. The petition further stated that, notwithstanding the jurisdiction of the Prize Court, as to American prizes, ceased with the war, and ended on the 17th February 1815, and had not been revived; yet the Right Honourable the Judge of

(1) The Treaty of Peace with the United States, which was signed the 24th of December 1814, and finally ratified the 17th of February 1815, contains the following clause :

"III. Immediately after the ratification of this treaty by both parties, as hereinafter mentioned, orders shall be sent to the armies, squadron officers, subjects and citizens of the two powers, to cease from all hostilities; and to prevent causes of complaint which might arise on account of the prizes which may be taken at sea after the ratification of this treaty, it is reciprocally agreed that all vessels and effects which may be taken after the space of twelve days from the said ratification, upon all parts of the coasts of North America, from the latitude of 28 degrees north, to the latitude of 50 degrees north, and as far eastward in the Atlantic Ocean as the 30th degree of west longitude from the meridian of Greenwich, shall be restored on each side; that the time shall be thirty days in all other parts of the Atlantic Ocean north of the equinoctial line or equator; and the same time for the British and Irish Channels, for the Gulf of Mexico, and all parts of the West Indies."

that Court was about to proceed to judgment in the cause, instituted by the American claimant.

Mr. Hart, Dr. Lushington and Mr. Heald, for the petition. We apply for this prohibition, because the subject is not within the jurisdiction of the Prize Court. Neither the commission issued on the breaking out of hostilities with America, (1) or the Prize Act 53 Geo. III. c. 63, [19] referring to and adopting the 45 Geo. III. c. 72, authorize a jurisdiction in a case like the present. The [20] commission did not entitle an American to make any claim under it. The authority of the Prize Court to condemn ceases with the Treaty of Peace. Its authority does not continue one hour after the cessation of hostilities. There cannot be a seizure as prize, except flagrante belli. If this American was entitled to the ship, and the recapture illegal, he should have brought an action of trover for it. It would be very inconvenient if (1) The commission was in the following terms:

In the Name and on the Behalf of His Majesty, George P. R.

George the Third, by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith: To our right trusty and well-beloved cousin and Chancellor, Robert Viscount Melville; our trusty and well-beloved William Domett, Esq., Vice-Admiral of the White Squadron of our fleet; Sir Joseph Sydney Yorke, Knight, Rear-Admiral of the White Squadron of our fleet; our right trusty and well-beloved Councillor William Dundas; our trusty and well-beloved George Johnstone Hope, Esq., Rear-Admiral of the White Squadron of our fleet, our trusty and well-beloved Sir George Warrender, Baronet; and our trusty and well-beloved John Osborn, Esquire; our Commissioners for executing the office of Lord High Admiral of our said United Kingdom of Great Britain and Ireland, and dominions thereunto belonging; and to the Commissioners for executing that office for the time being, greeting. Whereas we having taken into our consideration the injurious and hostile proceedings of the United States of America, as set forth in the declaration of this date, issued by our command, we therefore having determined to take such measures as are necessary for vindicating the honour of our Crown, and for procuring reparation and satisfaction, did by and with the advice of our Privy Council order that general reprisals be granted against the ships, goods and citizens of the United States of America, save and except any ships to which our licence has been granted, and which have been directed to be released from the embargo, and have not terminated the original voyage on which they were detained and released, so that as well our fleets and ships, as also all other ships and vessels that shall be commissionated by letters of marque or general reprisals, or otherwise, by you our Commissioners for executing the office of Lord High Admiral of our said United Kingdom of Great Britain and Ireland, and, for the time being, shall and lawfully may seize all ships, vessels and goods belonging to the United States of America, or to any persons being citizens of or inhabiting within any of the territories of the United States of America, save as before excepted, and bring the same to judgment in any of the Courts of Admiralty within our dominions, which shall be duly commissioned: these are therefore to authorize, and we do hereby authorize and enjoin you our said Commissioners, now and for the time being, or any three or more of you, to will and require our High Court of Admiralty of England, and the Lieutenant and Judge of the said Court and his surrogates, and also the several Courts of Admiralty within our dominions, which shall be duly commissioned, and they are hereby authorized and required to take cognizance of, and judicially to proceed upon, all and all manner of captures, seizures, prizes and reprisals of all ships, vessels and goods already seized and taken, and which hereafter shall be seized and taken, and hear and determine the same according to the course of admiralty and laws of nations; and to adjudge and condemn all such ships, vessels and goods, as shall belong to the United States of America, or to any persons being citizens of or inhabiting within any of the territories of the United States of America, save as before excepted. In witness whereof we have caused our Great Seal of our United Kingdon of Great Britain and Ireland to be put and affixed to these presents. Given at our Court at Carlton House, the 15th day of October, in the year of our Lord 1812, and in the 52d year of our reign.

after a lapse of years and many alienations, a Prize Court should have authority to restore a ship recaptured. All the authority of the Prize Court is derived from the commission, which only authorizes the Judge to condemn, and not to restore. doctrine of Lord Coke (4 Inst. 154) is applicable to shew that the American's remedy is in the Common Law Courts. The jurisdiction in the Prize Court (1) ought to be limited to a time of war, for it proceeds on principles not known to the [21] common law; and the King in Council has been said to have a legislative power over the Prize Court.(2)

The King's Advocate, Dr. Adams and Mr. Cooke, against the petition. The argument that the jurisdiction of the Prize Court immediately ends with the ratification of a treaty [22] of peace, and that it has no authority to restore, but only to condemn, is unwarranted. The warrant to the Judge of the Prize Court, in pursuance of the commission to the Lords of the Admiralty, directs him to proceed according to the course of the Admiralty and the law of nations. Several decided cases shew the practice of the Prize Court, and that the authority of that Court does not cease with hostilities, and that it has a power to restore, as well as to condemn. It may restore a cartel ship, or a neutral; that cannot be denied. The case of the "St. Helena"

(1) "The Judge of the Admiralty is appointed by a commission under the Great Seal, which enumerates particularly, as well as generally, every object of his judicial cognizance; but not a word is contained of prizes. To constitute that authority, or to call it forth in every war, a distinct commission under the Great Seal issues to the Lord High Admiral, to will and require the Court of Admiralty, and the Lieutenant and Judge of the said Court, his surrogate or surrogates; and they are thereby authorized and required to proceed upon all and all manner of captures, seizures, prizes and reprisals of all ships and goods that are, or shall be, taken and to hear and determine according to the course of the Admiralty and the law of nations. A commission issues to the Judge accordingly." 2 Wood. Lect. 452.

(2) I am not aware of any judicial authority, or text writer, laying down such a doctrine nor is it to be found, I apprehend, in the practice of the Prize Court. Possibly the following observations in an able tract were alluded to: " Royal instructions, from the time of their promulgation, of course become law to all executive officers acting under His Majesty's commission, so as absolutely to direct their conduct in relation either to the enemy, or the neutral flag. Their legislative force in the Prize Court also will not be disputed; except that if a royal order could be supposed to militate plainly against the rights of neutral subjects, as founded on the acknowledged law of nations, the Judge, it may be contended, ought not to yield obedience; but when the Sovereign only interposes to remit such belligerent rights as he might lawfully enforce, there can be no room for any such question; for 'volenti non fit injuria;' and the captor can have no rights but such as he derives from the sovereign, whose commission he bears." [War in Disguise, &c., p. 23.]

It seems very clear, though stated doubtfully in the passage quoted, that the Judge of the Prize Court is bound to decide according to the law of nations; and that no order in Council, which on the face of it appears clearly contrary to that law, would justify him in departing from it, unless such order was in relaxation or remission of belligerent rights. Sir William Scott, sitting in a Court of Prize, has thus expressed himself: "In forming my judgment, I trust it has not escaped my recollection for one moment, what it is that the duty of my situation calls for from me; namely, to consider myself stationed here, not to deliver occasional and shifting opinions, to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out, without distinction to independent states, some happening to be neutral and some belligerent. The seat of judicial authority is indeed locally here in the belligerent country, according to the known law and practice of all nations; but the law itself has no locality; it is the duty of the person who sits here to determine this question exactly as he would determine the same question as if sitting at Stockholm." [Maria, Capt. Paulzea, 1 Rob. Rep. 349.]

See, on this subject, the debate in the House of Lords, 8th March 1807, on the orders in Council respecting America.

V.-C. 1.-1*

(4 Rob. Adm. Rep. 3), the "Mentor" (1 Rob. 179), the "Adolphus [23] Frederick (mentioned by Sir William Scott, in his judgment in the case of the "Elsebe," 5 Rob. 189), which arose out of the war of 1747: the "Neustra Senora de Los Dolores" (1 Edwards' Adm. Rep. p. 60), and a decision, not reported, on the 8th of April 1809, where a case of plunderage was admitted, after costs and damages had been paid on a former sentence; are cases which shew that the Prize Court may act after hostilities have ceased. So, too, in the case of "La Bouche Harriet Munster," arising out of the Treaty of Utrecht in 1712. The proclamation for the cessation of hostilities was on the 21st August, and the capture was on the 30th September, off Newfoundland; the ship was released at Newfoundland by ransom, the captor taking an hostage but leaving all the questions of prize to be decided by the Prize Court. The hostage, on the 22d January, took out a monition, to inquire why he should not be released, and the ransom made void, reciting the events that had passed and the cessation of hostilities; and the Judge decreed the hostage, who was a Frenchman, to be released, and the ransom to be held null and void. So, likewise, in the case of the "Oceano,' decided by the Master of the Rolls, and other Lords Commissioners of Appeal, in February 1811, where the ship was taken into the Bermudas, and condemned; and on appeal, on the ground that the ship was unwarrantably taken after the ratification of a treaty of peace, the Lords Commissioners gave relief and costs. These cases shew what has for a century been the course of the Court. Capture and recapture are both determinable by the Prize Court; for recapture is capture. Wherever the seizure is made as prize, the Prize Court has jurisdiction. [24] He must shew a property, and that he took the ship flagrante bello. Can such inquiries be entertained by a Court of Common Law? The property may be a mixed property, and the legality of the capture must depend upon the construction of the treaty, according to the law of nations. The jurisdiction of the Prize Court is stated in Le Caux v. Eden (Dougl. 594), and the concurrent doctrine of all the cases there cited shew the Prize Court has jurisdiction over cases like the present.

Another objection to this application is that it is too late. The parties had time, during the last term, to apply to a Court of law for the prohibition, and therefore cannot now apply here. (Blackborough v. Davis, 1 P. Wms. 43, and Anon., 1 P. Wms. 475, and see more particularly, Montgomery v. Blair, 2 Sch. & Lefr. 136.)

Reply. In the case of the "Mentor" and the "Oceano," the question was not made; and in those cases, and the others in 1747 and in 1717, British owners were not personally concerned; they, therefore, are not in point.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. I shall not now give my final judgment upon a case of such magnitude and importance; but I will state the opinion I have at present formed of this case. The objection that the Courts of Common Law should have been applied to, there having been time for that purpose, and that it is too late to apply here, appears to me untenable. In applications of this nature the Court has no discretion whether or not it will hear the party. It is bound to grant the writ on a proper case being [25] made. It has, even in term time, a concurrent jurisdiction with a Court of Common Law. But this objection needs not be more fully considered, since I am of opinion that on other grounds the writ ought not to be granted. If it were a doubt with me whether the writ should be granted, I should be inclined to grant it, that a Court of Common Law might reconsider the question; but I have no doubt on this case. My decision will not preclude the parties from applying to a Court of Common Law, if they think proper.

With regard to the main question, two considerations arise: 1st. What is the jurisdiction of the Prize Court? 2dly. Whether this is a case falling within its jurisdiction, or, in other words, a question of prize or no prize? It is clear from Le Caux against Eden (Dougl. 594), and Key and Hubbard v. Pearce, Vanderwoodst v. Thompson, and the able judgment of Lord Mansfield in Lindo and Rodney, all cited in Le Caux v. Eden, (1) that the Prize Court has a sole and exclusive jurisdiction in all cases of prize. This has been the received doctrine from the time of Elizabeth.

Is this then, 2dly, a case within the jurisdiction of the Prize Court? That must

(1) See also what is said by the Judges in the case of Smart and Others v. Wolfe, 3 T. R. 323.