interest. If, therefore, I had to dispose of this case on principles
of law, I should have no hesitation in pronouncing against tlie
claim of the Lcda.
THE EL EAYO. [i Dod8. 42.]
Joint Capture — Head-mnnei/ — Ftret — (IviKnd Eiif/
rate Service.
In a general engagement the wholo fleet is entitled to head -money,
tliougli the formal surrender be made to one ship oidj' ; but the surrender
must bo a continuation of the general engagement.
Tins was tlie case of a claim set up on the part of liis Majesty's isii
sliip Leviathan, to share in the sum allotted for head-money \\\>o\\ "'•' ^'*'
the capture of this Spanish ship of war.
128 TIIK EL RAYO.
iHii Sru "W. Scott. — A docreo was originally made in this cause,
j/,n/i4^ entitling tho fleet generally to share in the head-money due on
Tub El Rayo. account of this capture. At the time when this decree was made,
Sir "W. Scott, no circumstances liad transpired which gave reason to suppose that
a peculiar claim would bo set up for any individual ship. It is
now, however, assorted on behalf of his Majesty's ship the Doncfjal^
that she was the sole captor, and a claim has also been made on the
part of the Leviathan to share as joint-captor with tlie Doncrjal, to
tlie exclusion of the rest of the fleet.
The first point to be decidt^d is, whether upon the statement of
facts now before the Court the whole fleet is or is not entitled to
share in the bounty of tho Crown. I accede to the principle laid
dowu by the King's Advocate, that if this captm-e could be con-
sidered as a continuation of the general action, then the whole fleet
would be equally entitled to head-money, notwithstanding the
formal surrender to one particular ship belonging to the fleet. If
the prize now in question before the Court had not gone into port
and come out again upon a uew enterprise, the captm-e might,
I think, very fairly have been considered as forming a continuation
of the general engagement. But here are two circumstances wliich
take it out of this principle ; first, the ship to which the surrender
was made had been detached on other service, and did not compose
a constituent part of the original fleet by which this memorable
engagement had been sustained ; secondly, the captured vessel was
not left after the action upon the field of battle, but had escaped
from her %'ictorious enemies and got into port, from whence she was
again sent out for the special purpose of assisting other vessels in
distress. Now these two circumstances do, I think, completely
destroy all supposition as to the continuity of the engagement.
Neither the capturing nor the captured vessel can be identified
with the respective fleets between which the contest had taken
place, and upon this broad and intelligible ground of distinction
I shall pronounce against the claim of the fleet to share in the
head-money.
The next question is with respect to the claim of the Leviathan,
and that certainly approaches much neai'er to the principle on
whieh the Court is in the habit of acting, nnd rests upon much
nicer distinctions of law. The Donegal had been dispatched from
THE KL KAYO, 123
the Britisli fleet for tlie purpose of securing prizes, and if it had I811
apf)eared that her attention had been in any manner directed to -^ ^^'
tlie El Rai/o, her claim woukl, I think, have been pretty nearly TheElRato.
made out. There was no combat between the prize and the actual Sir W. Scott,
captor, and all tliat was done on the part of the Donegal was the
mere form of taking possession. The Leviathan was in sight at the
time of the surrender, but her whole and undivided attention was
directed to one object, the assistance of the Monarca. The Levia-
tJian did, indeed, fire a gun, but this was merely as an admonitory
signal to the Monarca, without any intention of compelling the
surrender of the El llaijo, or of producing any effect upon that
si lip by intimidation or otherwise. The Leviathan was certainly
within reach, and might have given assistance if any had been
required, but she neither afforded any actual contribution of
endeavour, nor had she the most distant intention of so doing,
being wholly employed on another and different service. With
reference, then, to the rule applied to head-money, I think her
interest is not established. It is a case very different from that
put by Dr. Lushington of a pursuit by a frigate and a sevent}'-
fom* gun ship, where a siu'render was produced by the exertions
of both vessels. In such a case both would, undoubtedly, be
entitled to the head-money, although the actual surrender might
bo made to the frigate, and possession taken by her only. But in
this case there was no pursuit, and nothing was done by the
Leviathan to produce the event which has occurred. I shall there-
fore pronounce for the exclusive right of the Donegal ; but, as tliis
case has been very properly brought to the notice of the Court,
and has been conducted with the utmost fairness and propriety, I
shall decree the expenses on all sides to be paid out of the sum
allotted for head-money.
R. — VOL. IT.
1-5" I'm: MKi) i:i,wi\.
[1 DodH. r,o.] THE NTED ELAVIN.
Practice — Ihiil Bond — Linhilitij of Sitrctirs — Suhscquent War.
As bail is only given as a security pending the decision of all questions
before the Court at the time such bail is given : — I/eld, that sureties who
giivo bail for a neutral vessel are not liable in respect of such vessel if
war breaks out, and she thereby becomes belligerent property, and liable
to condemnation on tliis gi'ound.
1811 Tins vessol, sailing- under Danish colours, and laden with a
— '— cargo of sugar, coffee, elephants' teeth, and other articles, was
captured on the lOth September, 1806, by the private ship of war,
Jlapj)'/ licfiini. On the 14th of October, in the same year, the
ship was restored by consent, with freight and expenses. Claims
were given for the cargo on behali of Messrs. Kyberg & Co.,
of Copenhagen, and others, and on the 6th of May, 1807, the
cause came on for hearing, when the judge restored four-sevenths
of the general cargo, and ordered further proof of the remaining
three-sevenths, and of the elephants' teeth. On the 13tli of August,
1807, bail was given to the captor to answer adjudication in the
sum of 20,057/. 9.s\ 4r/., being double the appraised value of the
said three-sevenths of the general cargo and the elephants' teeth.
On the 12th of February, 1808, the judge pronounced the further
proofs to be sufficient, and the goods to be Danish property, and
directed the captor's general expenses to be paid. The King's
Advocate now moved for condemnation of the property to the
Crown, in consequence of the hostilities which had since been
declared between this country and Denmark ; and also for a
monition against Smith and Wolf, the bail, to answer the adjudi-
cation.
On behalf of the Crown, the Kimfs Advocate and Jeimcr
argued that the bail bond must be considered in all respects as a
substitute for the thing itself ; that it was not confined to the
individual captor to whom it was given, but was to answer all
qiiestions relative to the property which might arise before the
Tiltimate adjudication of the cause ; that bail bonds are never in
possession of the captors, but of the Court, and therefore it woidd
be too much to maintain that they can only be put in suit by the
TnE
XlED ElWIX.
THE NIED ELWIN. 131
persons to whom tliej are given by name ; that the Crown mn?t isii
for sucli purposes be considered in all respects as identifiel with - "'J ~ •
tlie captor ; that all right of capture proceeded from the Crown,
and tliat all right of prize vested originally in the Crown ; that iu
a case of joint captm-e, it could never for a moment be contended
that the bail would not be responsible to the joint captor, who had
subsequently proved his interest, as well as to the actual captor, to
whom alone the bond was given ; that in the case of property
condemned, under the provisions of the Prize Act, to the CroMH,
instead of the captor, by whom the proceedings were originally
instituted, the responsibility of the bail was indisputable. It was
further urged that it is the policy of this country to consider all
property depending in judgment before the Court as liable to
condemnation in case hostilities should supervene ; and that it was
just and reasonable that a bond taken for such property should be
subject to the same considerations, and tliat the possession of it
should be considered as equivalent to the possession of the property
itself.
For tlie bail. — Antohl and Achnns contended that bail bonds
were granted for a limited purpose only ; that they were given to
tlie captor, and not to the King ; that if the Court should decide
otlierwise, no bail would ever be given in future ; that the present
security w^as given merely to answer the point tlien before the
Court for its decision, namely, whether this was or was not Danish
property ; that the parties were induced to give such bail by tlie
establislied credit of Messrs. Kyberg & Co., on whose behalf the
goods were claimed, by the firm expectation that those gentlemen
would be able to establish their property" in the goods, and also by
tlie confidence they entertained tliat, in the event of condemnation,
tlie owners would furnish them with the means of discharging the
bond ; that at tho time when this security was given the parties
had not the least expectation of a war between this country and
Denmark ; that if the bond were to be enforced against tlioni,
they alone would be the sufferers, having no means of calling upon
the Danish merchanis for paym<'ut in consequence of the war with
Denmark.
K 2
NiED El\\t;n
SirW. S.'utt
132 jiii; Nii:i) i:lwix.
i.sii Siu W. Suoxr. — The quostion in tliis case is whether the parties
_J^^'-^ wlio liavc j^avcu bail to nnswor adjudication are subject to tliis
The domiiud of tlio Crown to bring in the amount of tlie value of tlio
goods for wliicli tlicy jiave become securities. At the time the
jtropcrty was delivered on bull, tlio question depending before
llio Court was whether that part of the cargo which was ordered
for further proof was or was not Danish property ; if it really
l)olonged to subjects of Denmark, the party making the claim
would at the time have been entitled to restitution, and upon due
proof of the property being made, the bail Avould have been equally
entitled to their dismissal. Now, I cannot entirely accede to the
position which has been laid down on behalf of the claimant, that
these bonds are mere personal securities given to the individual
captors ; because I think they are given to the Coiu't as securities
to abide the adjudication of all events at the time impending
before it. This Court is not in the habit of considering the effect
of bonds precisely in the same limited way as they are viewed by
the Courts of common law. In those Courts they are very pro-
perly considered as mere personal securities for the benefit of those
parties to whom they are given. In this place they are subject to
more enlarged considerations : they are here regarded as pledges or
substitutes for the thing itself, in all points fairly in adjudication
before the Court. The cases put by the King's Advocate fully
establish this point, and it would be easy to suggest others in
support of the same doctrine. Suppose a bond given to the actual
captor to answer the adjudication of property, which should, from
the locality of the captiu'e, be subsequently condemned to the King
in his Office of Admiralty : I have no hesitation in saying that
the bail would in such a case be answerable to the Admiralty.
But the question still reciu's, Has the Crown a right to enforce
payment from these parties in the event, which has since occun-ed,
of Danish hostilities ? I am of opinion that it has no such right ;
that is an event which, I am persuaded, was not in the contem-
jilation of the parties at the time they entered into this secm-ity ;
it has no connection with the question which this bail was given to
answer, namely, whether these goods were Danish property or not.
The present is an adjudication upon an entirely new question,
arising out of an entii-ely new state of things, and cannot be iden-
Sir W. Scott.
THE CKVLOX. 1-33
tifieJ with the original proceedings in the cause. The Court does, isii
indeed, upon the intervention of hostilities, accept the old pro- ' "'-^ ~ ^'
ceedings, and upon them pronounce for the interest of the Crown ; The
hut it does so merely for the purpose of saving time and expense,
and not with any view of fixing a responsibility on those who have
given hail to answer a very different question. If the Court were
to accede to the prayer of the Crown upon this occasion, the effect
would be monstrous ; it would extinguish altogether the practice of
delivering property upon bail, a mode so much encouraged by the
Court and by the legislature. No British luprehant would become
security for foreign claimants in any case if lie should be con-
sidered responsible to the extent of such a possible contingence as
that of a subsequent intervention of liostilities. How coidd this
Court expect it ? How could the neutral world expect it ? I am
clear that I have no autliority to compel these merchants to bring
in tlie amount of the property, and I pronounce for the dismissal
of the bail.
THE CEYLON. [iDod.. iu.3.]
Rtaipture — Prize — Eutmy Ship — Prize Act — Setting furth/or War — In formal
Commission — Offensive Operations — Recapture by Navy and Army — Con-
demnation.
In order to constitute "a setting forth fur war" within the Prize Act,
45 Goo. III. c. 72 (a), an informal commisfsion coupled with the use of a
ship in an offensive operation is sufficient {!>), and such ship on recapture
will be condemned to the captors.
Recapture may be effected by a combination of land and sea forces.
This was the case of an English East India ship which had isii
been captured by some French frigates, and carried to the ls\o of -^"'"'''^'j"' •^>
Johanna, wliere she was refitted and supplied witli two additional
carronades, and a Froncli crew consisting of seventy men. From
the Island of Johanna she was conveyed by the French captors tu
Port South-East, in the Isle of France; on her aiTival off tliat
place she was attacked by tlie British frigate the Nereid, and the
((() See now the Naval Prize Act, 18G4 (27 & 2S Vict. c. '2d), s. 40.
(/>) See the (feoryiana, j^ost, p. 19;J.
I'U 1 in; clvlcjn.
IS 11 guns ul' tlio Islo (lu I'asso, and having fired Keveral shots in letum
Nuvcn^Ur 1.;, ^^^ ^j^^^ frigato uiid fort, sho passed on to lier ancliorago at Port
Soutli-Kast; wliilst lying in that port sho was again attacked Ly
tlio British squadron employed in the blockade of the Isle of
France, when, with the assistance of some other French ships, she
sucecedt'd in repelling the attack, and in taking and destroying
the British squadron. She was afterwards earned round to Tort
Napoleon, where sho was dismantled, and fitted out as a prison ship
for the purpose of receiving English prisoners of war, in which
state she was found at the time of the capture of the island. The
question was, whether, under those circumstances, the ship was
sufHcieutly set forth for war to come witliin the terms of the Prize
Act which directs restitution, upon salvage, of British ships re-
captm-ed from the enemy, unless they shall have been " set forth
as ships or vessels of war by the enemy."
On a former day the judge thinking the evidence adduced not
suificient to establish the facts of the case, directed the cause to
stand over for the purpose of admitting further evidence, or of
affording some explanation why the proper evidence had not been
supplied.
AfRda\'its were now exhibited stating the circumstances attend-
ing the captui'e of this ship, her subsequent employment by the
enemy, and the belief of the witnesses as to the state in which
she was found at the time of recapture.
On behalf of the former British owners, the Advocate of the
Admivalti/ and Sfoddart.
For the captors, the Kintffi Adcocate and Joiner.
Sill W. Scott. — This ship is alleged to have been retaken by
his Majesty's land and sea forces employed in the caj)tm-e of the
Isle of France. Tlie cu'cumstauces attending the recapture are
very imperfectly detailed in the evidence before the Court, no
person who was present at the recaptiu-e being produced as a
witness. It is certainly the first time in which a cause of tliis
kind ever came on for hearing in such a form ; however, this is a
defect which cannot now be supplied, and I can only understand
generally, that the ship was employed, in conjunction with other
The Ckylox.
Sir W. Scott.
THE CEYLON. 135
vessels, iu defence of the Isle of France against the liritisli 1811
assailants. yovoila- 15,
A claim has hcen given for this ship, so taken and so employed,
on behalf of the former British proprietors. The former master
states the circumstances under which the ship was taken hy the
enemy. He says, " that she was taken and seized on the ord July,
1810, within sight of the Isle of Johanna, in the Indian sea, hy
the BcUone and Minerre, French frigates of war, and the French
corvette of war, Victor, after a very severe engagement of five
hours and a half, during which man}' guns were fired on both sides.
That the said ship was an English East India ship sailing under
English colours ; that the ship and goods were afterwards carried
into the Island of Johanna, where she was refitted and had
additional guns put on hoard h}' the French, hy Avhom she
was afterwards conveyed to the Isle of France ; that on her
arrival at Port South-East, on the 20th of August, 1810, she
was attacked by the Nereid, British frigate, and the guns of the
Isle du Passe, then in possession of the English ; that she fired
several shots at the frigate and fort, and then passed on to her
anchorage at South-East Point ; that the deponent was afterwards
put on shore, but was present on the 24th and 25th days of the
aforesaid month of August, when the said ship, being still at her
anchorage in Port South-East, was engaged in action against the
English blockading squadron, under the command of Captain
Pym, of the Sirius, which, with the Magicienne, another English
frigate, were both burnt, and the Nereid, English frigate, taken,
and the Ipldijenic surrendered ; and which was effected by the
exertions of the two French frigates and corvette by which the
deponent was captured, assisted as aforesaid by the French crew,
which had been put on board the deponent's ship ; that the
deponent was afterwards convej^ed from Port South-East, wliero
he left the Ceylon, on the 15th of September, in a cartel, in conse-
quence of his having been exchanged; but the deponent has lioard,
and believes, that the Ceylon was afterwards carried round to Port
Napoleon, where she was unladen, dismantled, and fitted out as a
prison ship, for the purpose of receiving English prisoners of war,
and in which state she was found at the time of the captm-e of the
island." It appears that she was a very large ship, of the buitheu
|:iii
11 IK L'KVLON.
The ^'kyi.o.v.
Sir W. Scott.
i«n ol' ci^'ht liuiiilr('(l Ions; that bIio had on board twenty-six guns,
uifinHi ,), ^^^ J ^^^^^ liiiiidrcd and ten men, with arras, and ammunition of
ovcrv dnsciijilion, in sufficiont quantities for offensive or defensive
oi)criitii)ns ; it appears also that slie was furnished with a Britisli
letter of marque, empowering- her to make reprisals. Now, the
question for the determination of the Court is whether, under the
Avords of the Act of Parliament, she is sufficiently " set forth for
war " by the enemy. I am of opinion that she is. " Setting
forth" does not, I think, necessarily mean sending out of port.
It is no necessary part of the interpretation that she should have
been carried into port and sent out with a formal and regular
comniis.sion ; it is sufficient if she has been used in the ojieratious
of war, and constituted a part of the naval and military force of the
enemy. jVo)i constat that there was not a regular commission of
war in the present case ; that must remain matter of conjecture
only, since all the ship's papers are lost. I hold it, however, to be
unnecessary that she should have been regularly commissioned ;
it is enough that she was employed in the public military service
of the enemy by those who had competent authority so to employ
her. In the case of Castor (a), which ship was not carried into port,
there was no regular commission, for it is not in the power of the
admiral to grant a regular commission ; he has only an inchoate
authority for such a purpose, and his acts necessarily require
confirmation : yet in that case, it was held that the ship, though
commissioned by the admiral alone, was sufficiently clothed with
the character of a vessel of war. A commission of war is
conclusive of itself as to the character of a ship ; but it by
no means follows that a regular and formal commission is
in all cases indispensable. The want of such an instrimient
is not fatal ; it may be supplied in various ways by acts equi-
valent to a commission. "What are the facts in the present
ease ? There was, indeed, no great additional armament, for that
was unnecessary, the ship having been already armed in the service
of this country ; but two guns, it appears, were added out of the
stores of other vessels to those -which were originally on board.
She sailed with a nontenant do vaisscau, a person having a
military commission, and a complement of men capable of fighting
((/) Lords of Appeal, May, 1795.
The Ceylox.
Sir W. Scott.
THE CEYLON. 137
the ship; for it appears that she did fight the British frigate the 1811
JVcrcidc, hy which she was attacked. It is said these were mere ' <'''''^'*^'" i^j
defensive operations ; but arc not many of the operations of war
defensive ? If the Nereido had proved inferior in force, would not
this ship, in conjunction with tlio others, have carried the matter
further and attacked in her turn y Then, being arrived at the Isle
of France, she again sustained an engagement with other British
ships, and assisted in the destruction of the Siriit-s and the Mayi-
ciciiiic, and in the capture of two other English frigates. Here,
tlion, was au operation not merely defensive but an actual oftV-nsive
attack, terminating in the destruction of tlie British blockading
squadron. I cannot doubt, under the cii'cumstances, that this ship
was sufficiently " set forth for war " to satisfy the terms of the Act,
or, as the marginal note of the Act expresses it, " used as a ship of
war." As little doubt can I have that she was so used under
competent authority. We know extremely well that in remote
■parts of the world, where the domestic authority cannot be imme-
diately resorted to, the commanders are of necessity vested with
larger powers than is usually entrusted to them when employed
upon Eirropean stations. I think this vessel was sufficiently com-
missioned by the French commander on that station ; this h'cu-
teiiaiit de vaisscau and the seventy men were put on board by his
order in the first instance, subject, undoubtedly, to tlie approbation
of the French Minister of Marine ; but can I doubt that this
appointment would have been confirmed by the constituted au-
thorities at home in the present situation of the French navy ?
What was her after-employment ? Why, as a prison-sliip, as f)thcr
ships of war frequently are, and, lastly, in defence of tlie place.
This conversion is in itself sufficient to show that a regular coiu-
niission is not necessary. There cannot be stronger proof of an
actual military character being impressed upon her, and I have no
hesitation in saying that she was sufficiently " set forth for war."
Then it is said there is no proof of the condemnation of tliis sliip
by a competent Com-t ; but this Coiu-t is bound to presume that she
was regularly condemned when she remained so long in the posses-
sion of the enemy.
Another question has been raised, whether this is a recapture
under the Act of Parliament ; and it is said not to be within the
I-^*^ TIIK ('i:VL(».\.
i«ii provisions ol' the Act, bocauso that speaks of recaptures l)j Loats
^<*^'f'>'^'^>' 1^1 and pliips only, and this is a rooapturo efFocted hy tlio conjunct
o])orjition of tlio army and navy. Now wo know very well that
iifc^jvYLON. ^1^^^ j^^^ ^^^^^^ drawn with the intention of expressing the sense and