in the property, by reason that the principal persons of CHAP. IX. the place were in the French interest, and that the French were near the place with every probability of returning, a question arose as to the nature of the salvage to which they were entitled; whether the service, principally, was of that description which would entitle the party to salvage under the act of parliament. It was contended that the service rendered was not of a military kind, and not therefore a matter cognizable in the Prize Court; but Lord Stowell said, "Now supposing it were clear that there really was no salvage as of war, the effect of this objection would only be, that I should put the parties to the expense of a new proceeding in the Instance Court, by transferring this case from one jurisdiction to the other. There is no doubt that the Court of Admiralty has a general jurisdiction to reward services of this nature, and that the party would recover by action in the Instance Court; but then the proceeding there would be attended with fresh expenses. As the question, therefore, has arisen incidentally here, the Court would be disposed to lay hold of any circumstances that might give this service the character of a war salvage, and to press them with more effect than it might otherwise do, for the purpose of bringing the case within the jurisdiction, which has been already exercised upon it; and taking all the circumstances together, I think there is enough to justify the Court in so doing." The Court considered it a military service, and consequently pronounced for salvage under the act of parliament.* * See also the Franklin, 4 Robinson's Admiralty Reports, 147. in which, both military salvage and salvage of distress were claimed; military, for preventing a British cargo from going into a port of the enemy, held not due; but for actual service, in preserving the ship and valuable cargo from distress, salvage was awarded. In the Gaze, 6 Robinson's Admiralty Reports, 273., a British vessel CHAP. IX. In the case of the Harmony*, a British ship and cargo were captured by an American privateer, who took out all the crew except J. N. the mate, and sent an American prizemaster and five Frenchmen aboard with directions to take her to a port in America. J. N. (the Frenchmen not opposing him,) kills the prizemaster, and having prevailed on the crew, the ship is brought to England and arrested at his (J. N.'s) suit in a cause of salvage by reason of recapture. A claim was given for both ship and cargo, and they were restored to claimants on payment of one-tenth to J. N. A claim was subsequently made by the American privateer as the original captor, alleging that the prize had been taken by him within the period prescribed for captures by the treaty of peace between Great Britain and America, and retaken after the period specified in the said treaty, and it was also alleged that no proceedings had been instituted by the recaptor to bring the ship and cargo to adjudication. Monitions were decreed on J. N. and the owners. The owners appeared under protest, and on behalf of it, it was submitted that the Prize Court of Admiralty could not take cognizance of the cause nor try the question as to recapture, the same having been effected after the period fixed by the treaty of peace; that the Prize Court of Admiralty has no jurisdiction to take cognizance of any seizures made upon the high seas during a time of profound peace; that no American could maintain a suit or action in any British Court of Justice during war; and that after conclusion of peace, by which an American could obtain a persona standi in a British Court, no question of prize could arise, for any with a cargo of timber, &c., which had been captured by the enemy, but was found abandoned at sea and on fire, the Court felt itself not restricted by act of parliament and allowed a salvage of one-fourth. * 2 Dodson's Admiralty Reports, 78. seizure after such period was not in the nature of prize, CHAP. IX. and the Court having once decreed restitution, it was binding on all parties, and could not be reversed. * But the protest was overruled, the learned judge not having the slightest doubt of the power of the Court to entertain the question. The decree of restitution upon salvage was declared of no effect, for so far as the American captor is concerned, it was altogether res inter alios acta. The final decree in this case, was, that the ship and cargo be released from the recapture and delivered up to the claimant, commander of the privateer ship. With respect to the parties liable to pay salvage, and the interest in respect of which it is payable, the rule is, that the property actually benefited is alone chargeable with the salvage recovered. If at the time of the salvage service the earning of the freight has commenced and it be afterwards actually earned, it is liable to pay salvage as well as the ship and cargo.† * Application was also made for a prohibition, but refused. Vide 1 Maddock, 15. Exparte Lynch and another. † Abbott's Shipping, pt. iv. ch. 12. The Dorothy, Foster, 6 Robinson's Admiralty Reports, 88. The Progress, Edwards' Admiralty Reports, 210. 263 APPENDIX. APPENDIX (A). 3 & 4 VICT. CAP. 65. An Act to improve the Practice and extend the Jurisdiction of the High Court of Admiralty of England. [7th August, 1840.] WHEREAS the jurisdiction of the High Court of Admiralty of England may be in certain respects advantageously extended, and the practice thereof improved; be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, That it shall be lawful for the Dean of the Arches for the time being to be assistant to and to exercise all the power, authority, and jurisdiction, and to have all the privileges and protections of the Judge of the said High Court of Admiralty, with respect to all suits and proceedings in the said Court, and that all such suits and proceedings, and all things relating thereto, brought or taking place before the Dean of the Arches, whether the Judge of the said High Court of Admiralty be or be not at the same time sitting or transacting the business of the same Court, and also during any vacancy of the office of judge of the said Court, shall be of the same force and effect in all respects as if the same had been brought or had taken place before the judge himself, and all such suits and proceedings shall be entered and registered as having been brought and as having taken place before the Dean of the Arches sitting for the Judge of the High Court of Admiralty. Dean of Arches to sit for Judge of Court of Admiralty in certain cases. II. And be it declared and enacted, That all persons who Advocates, now are or at any time hereafter may be entitled to practise as advocates in the Court of Arches are and shall be entitled to practise as advocates in the said High Court of Admiralty; surrogates, and proctors of Court of Arches to be admitted |