The Prima Vera. Edw. proof of it that has been exhibited. In what sense is it a trade of Portugal? Here is neither import nor export; here is nothing but the transit of foreign goods subjected to an operation of finance on the part of the state. How long such a practice has obtained is not shown; so long as it does not interfere with the rights of third parties, it is no subject of the observation of others. But if an occasion arises on which another state acquires and exercises a right of prohibiting the passage of goods from one enemy's port to another, it appears to fall directly under that description, and is not privileged to elude that right by the plea of being an accustomed trade of the country. Barilla condemned. [ *23 ] PRIMA VERA, Vodonick.1 August 12, 1808. Registrar of Vice-Admiralty Court not responsible for money transmitted under proper precautions and in the usual course of business, for the purpose of being invested in the funds, and afterwards lost by the failure of the consignee. In this case certain proceeds, which had been paid into the registry of the Vice-Admiralty Court at Martinique, were remitted to the house of Turnbull, Forbes & Co. by the deputy registrar, to be deposited in the Bank of England. Owing to some neglect that was not done, and the money was lost in consequence of the failure of that house, while it remained in their hands; the question therefore was, whether either the registrar or his deputy should be held responsible for the loss. JUDGMENT. SIR WILLIAM SCOTT. This is a question upon which I have deliberated with a considerable degree of anxiety, not on account of any difficulty that appeared to attend the case itself, but from a conviction extremely painful, that in whatever way it might be decided, a considerable hardship must fall upon persons in no other manner implicated in the loss of this property, than as they are the victims of the imprudence or the misfortunes of others. A part of the cargo of this ship had been condemned as prize by the judge of the Vice 1 See Adm. Rep. vol. 5, p. 151. The Prima Vera. Edw. Admiralty Court at Martinique, the claimant appealed from that decision, and the goods were in consequence sold, and the proceeds paid into the registry of that court, to abide the event of the appeal. The appeal was afterwards pronounced to be deserted, and a monition was prayed on behalf of the *captor against Mr. [*24 ] Martindale, the deputy registrar of the Vice-Admiralty Court, which had ceased to exist, to bring in the proceeds into the registry of this court. Mr. Martindale, who was in England at the time, appeared to the monition, and stated that he had remitted the proceeds to the house of Turnbull, Forbes & Co., of London, conformably to the directions he had received from Mr. Bentinck, his principal, and prayed to be dismissed. Upon this statement the court declined granting an attachment against him, but refused his prayer to be dismissed, being of opinion that there might still be sufficient reason for holding him before the court, till it had determined upon the question of loss which has been sustained in consequence of the failure of this house of Turnbull & Co., in London. A monition was then applied for by the captor against Mr. Bentinck, the principal registrar, and an act has been entered into by all the parties, which states the facts of the case, and the grounds upon which they respectively consider themselves entitled to be exonerated. Mr. Bentinck has appeared under protest, probably because the transaction took place in another court; but where a Vice-Admiralty Court has been abolished, this court, in a variety of instances, has felt itself authorized, upon its general jurisdiction, which extends. universally over the king's dominions, to interfere, and to supply the remedy in order to prevent a failure of justice. Mr. Bentinck states that he was the principal registrar, and that it was a rule of the court, founded upon an order of the governor, that all proceeds of prize property, under litigation, should be remitted to this country, to be lodged in the public funds, or Bank of England, in the names of the registrar or his deputy, and trustees nominated by the parties; and in this he is confirmed by the judge of the [ * 25 ] court himself, who states in an affidavit which has been brought in, that it was a matter of universal notoriety, that suitors. or their agents had not only a right, but were expected by the court to name trustees. This rule, which appears to have become the general practice of the court, is certainly very fit to be upheld upon every consideration of public convenience and private security; and it has been made the basis of a general regulation nearly similar, which has since been incorporated into an act of parliament. Mr. Bentinck adds, that he strictly complied with this order, and upon his quitting the island to discharge the duties of another appointment The Prima Vera. Edw. elsewhere, he directed his deputy, Mr. Martindale, to conform to it. It is proved by the evidence of one of the partners, that, in pursuance of these directions, Martindale did remit the money in bills to Turnbull & Co., and he accompanied the remittance with a letter, in which he says, "you will receive inclosed two bills, which together make the total of 4,376l. 16s. 10d., to be placed in the Bank of England, as nett proceeds of the cargoes of the brig Rose and ship La Prima Vera, condemned in our court, and ordered to be lodged in the Bank to wait the event of an appeal. Inclosed you will find my account current with both vessels, and find the sum of 3,167. 10s. 6d. to be lodged as proceeds of the brig Rose, and 1,209l. 6s. 4d. to be lodged as proceeds of the ship La Prima Vera. No trustees have been appointed for La Prima Vera; but for the Rose, Mr. James Sykes, of Arundel Street, London, was appointed on behalf of the captors." It appears, then, by this letter, that no trustee was named by the parties, and it is equally clear that the money was [26] remitted to England by Mr. Martindale in pursuance of the directions of his principal, and upon these two facts he rests his defence. Mr. Bentinck alleges that the deputy registrar had done all that was in his power to do for the security and investment of the money, by remitting it to a house of undoubted credit at the time, with express directions to invest the same in the Bank of England; that it was wholly owing to the neglect of the captors or their agents that no trustees were appointed, and that due diligence was not used by them in inquiring whether the money was invested, and in taking care that it should be invested. It is not suggested that either the principal or deputy registrar made any interest of the money whilst it remained in the hands of Turnbull & Co., or derived any advantage from it. But it is urged on the part of the captor, that Mr. Bentinck, as the registrar, is responsible for all moneys paid into court, for which responsibility he is entitled to an allowance of five per cent., and that in the present instance the registrar or his deputy were bound either to remit the money to the registrar of the Lords of Appeal, or to cause the same to be deposited in the Bank of England. It is also stated that frequent applications were made to Mr. Martindale for information as to the manner in which the proceeds had been disposed of, and that it was refused; but this is expressly denied on the other side, and it seems unlikely, as the registrar does not appear to have derived any benefit from the use of the money, and therefore had no interest in withholding it; besides, if he had withheld it, the court upon application would have enforced the communication. In answer to the charge of neglect on the part of the captors [*27] in not appointing a trustee, they allege that their agent The Prima Vera. Edw. wrote to his proctor at Martinique, requesting him to move the court to direct that this money should be lodged in the Bank of England in the names of trustees, and desiring him to nominate Mr. Henry Desborough, of London, for the captors. These are the general facts of the case, and the question is, on whom the loss occasioned by this unforeseen calamity is to fall. For the captors it has been contended, that both the registrar and his deputy are answerable for all moneys paid into court. I admit it to be true generally that they are answerable for money which they receive, though it may be difficult, in particular cases, to say in what proportion. If the money is lost through the misconduct or negligence of the deputy, he is, I think, sufficiently known to the suitors and to the court to be held personally and directly responsible. How far the principal is bound to supply the deficiency of his deputy, if that should happen, I am not now called upon, by the necessities of the present case, to determine; but I am inclined to think that he is bound to supply the deficiency, and that he cannot discharge himself of the responsibility of the office by devolving the duty upon another. For the office may be liable for some casualties, and generally when such casualty occurs, the parties, I apprehend, will be answerable to the same extent that they derive the profit, where it arises from a proportion of the fees. Where the deputy is paid by a fixed salary, and the loss arises from no misconduct in him, I am not prepared to say that he would be liable, and certainly I cannot go the length of holding that for all casualties, and under all possible circumstances, either the registrar or his deputy must be accountable. The registrar is an officer of the court, he is the receiver of the court, and if he acts * with due diligence in the discharge of the duty which is [ 28 ] imposed upon him, if he does that which is unavoidable and necessary to be done in the payment or remittance of money, the suitors cannot come upon him. There are one or two cases of high authority which establish this doctrine. In the case of Knight v. Lord Plymouth, 3 Atkins, 480, "a person had been appointed receiver under an order of the court; he did not think it safe to remit the money to London, and therefore paid it to Winsmore, a considerable tradesman of Worcester, and took bills of exchange from him drawn on persons in London. Winsmore soon after became a bankrupt, and there was an application to the court against the receiver to make good the loss. It was referred to a master to inquire into the fact, who found that it was done for greater safety; and the court said it would be very hard to oblige the receiver to make good a loss which was not owing to any default of his; that as the sum was large, it was a necessary precaution to remit by bills rather than in The Prima Vera. Edw. specie, and at the time the money was paid to Winsmore, he had no reason to doubt its being lodged in safe hands, and therefore indemnified the receiver in the act he had done." There is also a case in Ambler's Reports, p. 218, "ex parte Belchier in the matter of Parsons, a bankrupt, where an assignee employed a broker to sell goods by auction; the money was paid to the broker, and after remaining in his hands a few days he died insolvent; and the commissioners were of opinion the assignee ought to bear the loss. Lord Hardwicke, Chancellor, after argument at bar, said, if the assignee is chargeable in this case, no man in his senses would act as assignee under com missions of bankrupt. This court has laid down a rule with [*29 ] regard to the transactions of assignees, and more so of trustees, so as not to strike a terror into mankind acting for the benefit of others, and not for their own. Courts of law and equity too, are more strict as to administrators and executors; but where trustees act by other hands, either from necessity or conformity to the common usage of mankind, they are not answerable for losses. If a trustee appoints rents to be paid to a banker at that time in credit, and the banker afterwards breaks, the trustee is not answerable." His Lordship then cited the former case, and decided that the assignee ought not to be charged with the value of the goods. Upon these authorities it is only necessary for me to inquire whether the registrar, under a sufficient necessity, and in the usual course of business, remitted these bills to a house of unsuspected responsibility at the time; if so, he will be exonerated. There was a general order of the court respecting all proceeds of prize property under litigation, and it is shown that the deputy registrar complied with the order, and remitted the money in bills, which was the only way in which it could be done. He could not remit in specie, and it is not to be expected that whenever money is to be remitted from a Vice-Admiralty Court abroad, the registrar should come over to make the payment himself. In this respect he is in a very different situation from the registrars of this court, who, having immediate access to the Bank, have no occasion to employ an intermediate hand. It is admitted that at the time Turnbull & Co. were perfectly solvent, and I see nothing in the conduct of the deputy registrar that can attach blame to him from the mere circumstance of his having [30] remitted the proceeds through their hands. The principal registrar stands aloof from the whole transaction, and can only be charged upon the general responsibility of the office. This brings us to another part of the inquiry, whether there have been laches either in the deputy registrar or the captors, in allowing the bills to remain in the hands of Turnbull & Co. It does not * |