abroad in all suits for seamen's wages, pilot- 2. Of the proceedings in — 3. Miscellanea. 51. Neither the Governor of a British Colony, the Vice-Admiral on the station, nor the Lords Commissioners of the Admiralty, have of themselves any authority to appoint a Vice-Admiralty Court at such colony. The John, Buchanan, 1 Dodson, 380. 52. A Vice-Admiralty Court abroad is not a court of record. Smith v. Nicholls, 7 Scott, 147., 5 Bing. N. C. 208., 7 Dowl. P. C. 282., 1 Arn. 474. 53. A plea of a judgment recovered in the vice-admiralty court at Sierra Leone is no bar to an action brought for the same cause in this country. Ibid. 54. Semble, that a decree of a ViceAdmiralty Court, called an "interlocutory," is in effect final; and that such a decree, requiring a party to pay a certain sum, may be enforced in the Courts at Westminster. Obicini v. Bligh, 1 M. & Scott, 477., 8 Bing. 335. relating to the payment of army prize money, and the party in whose favour the decree has been incurred abroad, the penalties and forfeitures by made give bail to abide the event of the appeal by that act imposed are to be recovered by action, &c. two sureties in the amount of the value of the proin any of His Majesty's Courts of Record in the co-perty or subject in dispute, together with the furlony, &e., or in any of His Majesty's Vice- Admiralty ther sum of 1001. sterling, to answer costs, in the Courts having jurisdiction there. event of the same being awarded by the superior court. 39. The practice to be observed in suits and proceedings in the Courts of Vice-Admiralty abroad The party appealing, having complied with these is governed by certain rules and regulations esta- regulations, is then to cause the Judge and Registrar blished by an Order in Council under the 2 & 3 W. 4. to be served with an inhibition from the High Court c. 51., and printed and circulated by the Board of of Admiralty, restraining them from further proAdmiralty. The rules and regulations are accom-ceeding in the cause, and also with a monition to panied by tables of fees for the Courts of Vice-Admiralty in the various Colonies, and contain a copious appendix of forms of pleadings, &c. †40. All appeals from decrees of the Vice-Admiralty Courts are to be asserted by a party in the suit within fifteen days after the date of the decree, which is to be done by the proctor declaring the same in court, and a minute thereof is to be entered in the assignation book; and the party must also give bail within fifteen days from the assertion of the appeal, in the sum of 100l. sterling, to answer the costs of such appeal. In all cases, however, in which an appeal is asserted, except respecting slaves, the judge may proceed to carry his sentence into execution, provided transmit the process. This process will consist of a fair copy of the proceedings under seal of the Vice-Admiralty Court, to be made and signed by the Registrar at the expense of the party ordering the same, which is to be transmitted to the superior court, pursuant to the monition. The proceeds, if in court or in the hands of any individual, must, on a special monition for that purpose being served, be remitted to the Registrar of the High Court of Admiralty or court of appeal. Extract from the Rules and Regulations with reference to Proceedings in Vice-Admiralty Courts established by Order in Council under 2 & 3 W. 4. c. 51. 1. The affidavit to lead an application for further time to bring in proofs, in order to obtain the They should consist of a plain statement the case had been closed through inadof the facts and circumstances as the wit- vertence of the proctor, granted, the Court nesses themselves state them, and as they intimating, however, that it would view the would state them if examined in Court. affidavits introduced at such a stage of the The Court wishes always to have the state- cause with great suspicion; and that, withments of such witnesses in their own lan- out reference to the result of the suit, the guage. The Towan, 8 Jur. 222. party would be liable to the costs of the application, should the affidavits prove unnecessary. The Speed, 7 Jur. 1069. 2. Affidavits sworn before masters extraordinary in chancery must contain, in the jurat, the name of the place where they were sworn. Objection to affidavits irregularly sworn in this respect sustained. The Reward, Hogg, 1 W. Rob. 174. II. WHERE RECEIVED. 3. The declarations and affidavit of a deceased person, relating to matters in which he himself was concerned, admitted to proof. Robins v. Sir W. Wolseley, 2 Lee, 34. 443. 4. On an appeal from an award of magistrates in a salvage case, affidavits disclosing facts not put in evidence before the magistrates refused to be received. The Osiris, Shaken, 2 Hagg. 135. III. WHERE REJECTED.* 7. Affidavits impeaching the accuracy of depositions in preparatory rejected as inadmissible. The Minerva, Hay & Marriott, 235.; The Jungrfre Maria, Ibid.273. 8. In a case of blockade, an affidavit of the foreign master, denying an admission in his deposition, and impeaching the accuracy thereof, refused to be received. The Apollo, Karsdadt, 5 C. Rob. 286. 9. An affidavit explanatory of the depositions, and supplying the deficiencies therein, the examinations having been imperfectly taken, admitted; but afterwards held to be inadmissible, as containing merely a repetition of the depositions or a contradiction thereof. The Georgiana, Pitts, 1 Dodson, 399. 10. The Court will not receive, on the mere affidavit of the defendant, facts which might be a bar to the action. Such an affidavit rejected. The Lord Hobart, Gamage, 2 Dodson, 101. 5. On motion to expunge from affidavits matter which had not been embodied in the act on petition, on the ground that the opinion of Trinity Masters might be unduly biassed by such matter, the Court intimated it should reject the motion as to merely irrelevant matter which should be objected to at the hearing, and not before; but should grant it as to irrelevant matter of 11. In a cause of damage affidavits reso extraordinary a character that the Tri-lative to what transpired at the trial in an nity Masters might have such an undue impression made on their minds, as it would be out of the power of the Court to efface at the hearing. The Speed, 7 Jur. 1068., 2 W. Rob. 230. 6. Motion, after publication, to permit further affidavits to be given in, and to allow further time to procure them, the parties being at sea, on the ground that it had been intended originally to apply for time to procure these affidavits, but that action at law between the same parties in respect of damage arising out of the same collision rejected; the Court intimating that it could receive no evidence of such a nature as to the occurrences at the trial, and that the only authority to which it could resort, if requiring any such information, would be the notes of the judge who tried the action. The Ann & Mary, 7 Jur. 1001., 2 W. Rob. 196. See antè, No. 5. evidence of a particular witness, should state that the witness is a necessary witness, and that his evidence could not have been earlier obtained. The Gazelle, Nov. 1846. parties who had made affidavits in the principal cause, and counter affidavits would also be brought in, compelling the Court to try questions of fact occupying as much time, and leading to as much * 2. In a case of Damage an affidavit was made expense, as the real issue in the cause. It therefore by A., and when the affidavits had been exchanged postponed the question of the admissibility of the an application was made to the Court to admit an affidavit until the hearing of the cause, in order to affidavit, impeaching the credibility of A. The ascertain whether the merits of the case would be Court observed that its reception of this exceptive so essentially affected by the evidence of A. as to affidavit would create a difficulty in the future require of the Court to determine whether or not it practice of the Court; since, in similar suits, affida- could receive such an affidavit. H. M. S. S. Volvits would then be introduced in impeachment of | cano, 3 Notes of Cases, 210. IV. MISCELLANEA. 12. Affidavits to lead Primum Decretum should be sworn by commission or before a surrogate. An affidavit for such purpose sworn in Scotland before a commissioner for taking bail in prize causes is irregular. Affidavit so sworn refused. The Sylvan, Bell, 2 Hagg. 155. 13. The Court of Admiralty has no power to compel a person to make an affidavit. The Minerva, Crawford, 1 W. Rob. 171. 14. Affidavits as to the perishable condition of a cargo ought to be made by persons competent to form an opinion of the peculiar nature of the cargo. Anon. 7 Jur. 182. AGENTS.* I. HOW FAR REPRESENTING THEIR PRINCIPALS. VI. OF ACCOUNTS AND ADVANCES OF - see II. PRINCIPALS HOW FAR BOUND BY ACTS of SALVAGE (civil). III. PRINCIPALS HOW FAR LIABLE FOR ACTS VII. Of the Right of — to act as Salvors OF IV. MISCELLANEA. see SALVAGE (civil). V. DECLARATIONS OF HOW AFFECTING THEIR VIII. FOR NAVAL PRIZE, SLAVE SEIZURES, I. HOW FAR REPRESENTING THEIR PRINCIPALS. + 1. The act of the agent is the act of the principal. The Wasser Hundt, Lorentzen, 1 Dodson, 272. n. II. PRINCIPALS HOW FAR BOUND BY 2. Where persons put their property into the hands of their agent, they must be bound in the prize Court by the consequences of his acts as to the property so entrusted, whether they are immediately cognizant of his practices or not. The Calypso, Speck, 2 C. Rob. 154. 3. A principal is bound by all the acts of his general agent; but, where he appoints an agent for a particular purpose, he is only bound to the extent of the au 1. The law of principal and agent is elaborately discussed in Smith's Mercantile Law, book i. cap. 5. p. 87. et seq.; and see also thereon 2 Stephens' Black. Comm. 117., and the Scotch cases on this head in Shaw's Digest of the Scotch Reports, vol. i. p. 44. † 2. Payment, or tender of payment, to an agent in the course of his employment, is payment, or tender of payment, to the principal; but the payment or tender must be in the course of his employment. Smith's Mercantile Law, 124.; and see the cases there cited. 3. The principal is responsible for the negligence of his agent acting in the prosecution of his business, though not under his immediate direction; and this principle seems to extend to a sub-agent. The principal is not, however, responsible for the wilful and malicious trespass of his agent; but he has been thought responsible for his deliberate fraud, committed in the execution of his employment, though without the principal's authority. Smith's Mercantile Law, 127. et seq. IV. MISCELLANEA.* 5. A master at a foreign port appointed parties to act as agents of the ship, her owners having no agents there. His instructions (not in writing) from his owners were to bring the ship from thence homeward. Such agents held not authorized to assist the master, except for such purpose, without his producing an authority from the owners authorizing his employing the ship in other adventures, or investing him with a discretion therein, and that if they so assisted him for other adventures without such authority, they did so on his own credit and responsibility only, and thereby became his agents, and not agents of the owners. The Reliance, Hays, 3 Hagg. 69. 6. A company having assumed voluntarily, and without any particular appointment, the character and benefit of agent for the Crown, held to have assumed likewise all the responsibility and liabilities of an agent. Capture of Chinsurah, 1 Acton, 179. 7. An agent is not bound by the law merchant to advance money for the use of his principal on the expectation of receiving it back at some uncertain period. The Warrior, Peache, 2 Dodson, 294. 8. A foreign agent, upon whom the entire management of a ship devolves, and who acts bond fide, is entitled to be equitably supported, and his acts liberally construed according to the necessities of the case. The Tartar, Tharp, 1 Hagg. 1. 9. Reference ordered to the registrar and merchants of the accounts of a party appointed agent by the master, and claiming also in that capacity as salvor. The Happy Return, Woolcock, 2 Hagg. 207. 10. A Greenock ship having been repaired at Hull by order of the agents of the owner, at the instance and under the direction of the master, the account for such repairs was made out to "Captain Coward (the master) and owners of ship Jeanie," attested by Coward, and addressed to the agents for payment, which was not, however, demanded for some months. In the mean time the owner paid the agents for the repairs. The agents became embarrassed in their circumstances, upon which the shipwright applied for paymentto the owner: Held, that the owner was still liable, for he could be discharged only by the positive agreement, or by necessary inference that the shipwright had abandoned that security. Stewart v. Hall, 2 Dowl. 29., 1 Bell, 525. n. 5. I. GENERAL PRINCIPLES WITH REFERENCE | Mayor of Lyons v. The E. I. Company, TO 1. The introduction of the English law into a conquered or ceded country does not draw with it that branch which relates to aliens, if the acts of the power introducing it show that it was introduced not in all its branches but only sub modo, and with the exception of this portion. The 1 Moore, 175. 2. The status of a party resident in the Mauritius must be determined by the law of England, but the rights and liabilities incident to such status must be determined by the law of the colony. By the 13th article of the Code Civile (which prevailed in the Mauritius previous to its surrender to the British Crown) the do Comm. 120. 4. An agent is always incompetent, without | being delegatus non potest delegare. 2 Stephens' Black. special authority for that purpose, to appoint another person to act in his stead, the maxim of law 1. See on this head 2 Stephens' Black. Comm. 6. By sect. 13. persons naturalized before the passing of this act and resident five successive years in this country are entitled to such rights and privileges of British subjects as are conferred on aliens by this act. micile of an alien can only be obtained or privileges as they may be restricted "par l'autorisation du gouvernement," from in such certificate. which, according to the law and practice in France is an express and formal authority of the government, and not merely a tacit or permissive acquiescence for the residence of an alien friend in the island. Where, therefore, an alien friend had by an order of the governor and colonial council been deported and directed to quit the island within a month, it was Held by the judicial committee, to whom the case had been referred by the Crown, that such order was consistent with the law of France, and strictly legal, notwithstanding that it appeared that the party so deported had enjoyed the privileges and exercised the rights of a person duly domiciled in the island. In re Adam, 1 Moore, 460. 3. The prerogative of the Crown with regard to aliens must be determined by the laws of the particular colonies in which questions thereon arise, and not by the laws of England, which are only to be looked at in order to determine who are and who are not aliens. Donegain v. Donegain, 3 Knapp. 63. 4. It is a general rule that save as to real estate, an alien friend is entitled to sue on the same footing as a British subject. The Johann Friederich, 1 W. Rob. 37. II. STATUTORY REGULATIONS WITH REGARD TO — 5. By 7 & 8 Vict. c. 66. s. 6. aliens taking up their residence in the United Kingdom may become naturalized on obtaining the certificate, and taking the oath therein mentioned, and may thereupon enjoy all the privileges of natural born subjects, save being capable of being members of the Privy Council or of either house of parliament; and also save such other rights *2. See also the following statutes: 21 Hen. 8. c. 16., 32 Hen. 8. c. 13., 25 Eliz. st. 2., 11 & 12 W. 3. c. 6., 25 Geo. 2. c. 39., 6 Geo. 4. c. 16., 6 & 7 W. 4. c. 11. † 3. The general rule of the common law of England is, that an alien enemy cannot maintain, in his own name, an action in the courts of that country during war; and this rule is inflexible, except where the alien enemy is under the protection of the King, as where he comes into the kingdom after the war by licence, or, being there at the time of the war, is permitted to continue his domicil. Crawford et al. v. William Penn, Peters's (AMERICAN) Circ. C. Rep. 106. 4. So, also, a person beneficially interested in a suit, if an alien enemy, cannot support a suit in the name of his trustee, who is not an alien; but it is other 7. By sect. 16. women married to natural born subjects are to be deemed naturalized, and to have all the rights and privileges of natural born subjects.* III. ALIEN ENEMIES. 1. Who are to be considered as- et contra. see NATIONAL CHARACTER. 2. Of the proof of 8. To prove that a person was an alien enemy at the time of the action brought, it is not enough to show that he was some time before domiciled in a territory which he was a native of that territory. Harman had become hostile, without showing that v. Kingston, 3 Camp. 152. 3. Of the disabilities attaching to 9. Formerly an alien enemy might have maintained an action in this country for the recovery of a right claimed to be acquired in actual war. Ricord v. Bettenham (1764), 13 Burr. 1734.; S. C. 1 Bl. Rep. 563.; S. P. Corner v. Blackbeurn (1781), 2 Doug. 640. 10. But this doctrine has since been overruled. Anthon v. Fisher (1781), Ex. Chamb., 2 Dougl. 650. n. 11. And it is now clearly settled, that an action does not lie at the suit of an alien enemy. Brandon v. Nesbitt, 6 T. R. 23.; S. P. Bristow v. Towers (1794), 6 T. R. 35.; Potts v. Bell (1800), 8 T. R. 548.† wise if the contract upon which suit is brought arises out of a trade licensed by the government in whose courts redress is sought; and the taint of enemy interest will not defeat such a suit. Ibid. 5. But the rules of the common law in all their rigour do not apply to courts acting under the general law of nations, and proceeding according to the civil law. In these courts the only question is, has the plaintiff a persona standi in judicio ? — and this depends on the legality of the contract; the right to sue and to compel payment being a necessary incident to the right to contract. Ibid. 6. Where the pursuer of an action was an alien enemy, the court sisted procedure. Carron v. Cowan and Co. (1809); Wright v. Hutchinson (1810), 15 F. C. 435. foot-note (SCOTCH Rep.) |