Ex parte Lynch and Another
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1815 |
| Date | 26 July 1815 |
| Court | High Court of Chancery |
English Reports Citation: 56 E.R. 6
COURT OF THE VICE-CHANCELLOR OF ENGLAND
[15] Exparte lynch and another. July 25, 26, 1815. Prohibition refused, to Judge of the Prize Court, to enjoin him from proceeding in a ease involving a question of prize. This was a petition to the Chancellor, directed by him to be heard by the Vice-Chancellor, 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. 1 MADD. 16. EX PABTE LYNCH 7 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 mouth 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.(l) 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, upou 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." 8 EX PARTE LYNCH 1 M1DD. 19. 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,(l) or the Prize Act 53 Geo. III. c. 63, [19] referring to and adopting the 45 Geo. III. c. 79, 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...
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