Johnstone Executor of Johnstone against Marsgetson
| Jurisdiction | England & Wales |
| Judgment Date | 29 June 1789 |
| Date | 29 June 1789 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 153
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER
johnstone Executor of Johnstons against margetson. Monday, June 29tb, 1789. During the late war, a flag-officer on a certain station gave orders to a ship under his command to sail on a cruise; after the orders were given, but before a prize was taken he accepted another command; but no other flag-officer was appointed to succeed him on his former station. He was not intitled to one eighth of a prize taken by the ship which sailed in consequence of his orders, under the proclamation for the distribution of prizes (a). This was au action brought by the executor of the late Commodore Johnstone against the prize agent, to recover 9141. being one-eighth part of the money arising from the sale of a Spanish ship under the King's proclamation, dated the 25th of June, 1779, for granting the distribution of prizes during the then hostilities with Spain, The declaration was for money had and received, with the usual counts. The cause was tried at the sittings after Hilary term 1788, before Lord Lough-borough, when a verdict was found for the plaintiff, subject to the opinion of the Court on the following case. On the 16th of December, 1780, the deceased being then at Spithead, and a flag-officer and commodore on the Lisbon station, wrote an order to Capt. Mann, who was then commander of the " Cerberus " frigate, one of the squadron under the command of the deceased on the said station, to sail on a cruize : which order was received by Capt. Mann at Lisbon, on the 17th of January, 1781, who in consequence of it sailed on the 28th of January, 1781, and on the 25th of February, 1781, took as prize the " Grana," a Spanish frigate. On the 3d of March, 1781, Captain Mann arrived at Plymouth with the prize, and wrote to the deceased then at Spithead, informing him of his arrival. [262] On the 19th January 1781, a commission had been made out from the Admiralty, appointing the deceased to another command with certain other ships among which the " Cerberus " was not included ; which commission he received on the 3d of February 1781. After the 19th of January 1781, no orders were addressed by the Admiralty to the deceased as commander on the Lisbon station, nor was any other flag-officer appointed to that station. This was argued in Trinity term 1788, by Adair, Serjt., for the plaintiff, and Lawrence, Serjt., for the defendant; and a second time in Easter term last, by Le Blanc, Serjt., for the plaintiff, and Bond, Serjt., for the defendant. On the part of the plaintiff it was contended in substance as follows. The first clause of the proclamation material to the present question, ia that which directs, that after the produce of any prize shall be divided into eight equal parts, " the captain and captains of any of our said ships and vessels of war, who shall be actually on board at the taking of any prize, shall have three-eighth parts; but in case any such prize shall be taken by any of our ships or vessels of war under the command of a flag or flags, the flag-officer or officers, being actually on board, or directing and assisting in the capture, shall have one of the said three-eighth parts, the said one-eighth part to be paid to such flag or flag-officers in such proportions, and subject to such regulations as are hereinafter mentioned." (a) [As to the right of flag-officera to prize-money under various proclamations, see Lord Nelson v. Tucker, 3 Bos. & Pul. 257, S. C. in error, 4 East, 238. Drury v. Lady Gardner, 2 M. & S. 150. Lord Duncan v. Mitchell, 4 M. & S. 105. Lord Keith v. Pringle, 4 East, 262. Harvey v. Cooke, 6 East, 220. Holmes v. Rainier, 8 East, 502. Lady Gardner v. Lyne, 13 East, 574. Donelley v. Popham, 1 Taunt. 1. Duckworth v. Tucker, 2 Taunt. 7.J 154 JOHNSTONS V. MARGETSON 1H. BL.263. Under this clause, the deceased commodore was entitled to one eighth of the prize iu dispute, since the giving orders is a direction and assistance. Having given the order, he was entitled to all the beneficial consequences of it. His personal presence was not necessary. Captains by this clause must be actually on board at the time of the capture, otherwise they have no right to share in the priza ; but the direction as to flag-officers is in the disjunctive; they must be either on board, or assisting and directing, and the only way of assisting and directing where the flag-officer is not on board, is by giving orders. The next clause to be considered is that which is in the following terms, " We do hereby will and direct, that the...
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