Mascoll v Scaife
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1765 |
| Date | 01 January 1765 |
| Court | High Court of Admiralty |
English Reports Citation: 167 E.R. 444
HIGH COURT OF ADMIRALTY
{3] hascoll v. scaipe. 3rd Sees. East. Term, 1765.-Q. Certificate discontinued. Is the appeal thereby deserted ?-Cause to go on This cause was in the first instance determined at Nova Scotia on a seizure made in 1758 by His Majesty's ship " Vulture," Captain Scaife, of the schooner " Love," Mascoll, &c , owners, for illicit trade From that sentence there was an appeal, which has been prosecuted, but the certificate has been discontinued for two years. The question therefore is, Whether the appeal is not to be considered deserted by reason of a treaty of agreement which was on foot between the proctors of the contending parties Crespigny appeared and alledged that he knew nothing of the cause till within these ten days ; for that it had been under treaty of agreement, which is now at an end, and prays that Fuller may be assigned to extend his protest. Fuller alledged there was no cause before the Court by reason of its being deserted for two years, and that he knew nothing of the agreement. The affidavits of Captain Scaife and his agent, Mr Manger, were read, stating that they knew not, or had given orders for entering into such treaty of agreement. An affidavit of . . was read, which set forth that he knew there had been such a treaty on foot. Dr. Harris.-Their affidavits do not contradict ours, for the agreement was between the respective proctors (Mr. Crespigny, senior, and Mr. Farrar, who are both dead), they alledging it in the continuation , and on this account Crespigny is justified in doing nothing for two years, and the treaty being now broke off he has a right to proceed in his appeal. The inhibition, monition, and certificate not being coTxtinmed is no reason for decreeing the appeal to be deserted. If the proctor's protest is bad he must appear. There is no use in continuing the certificate from Gourt Day to Court Day. The repetition of such assignation would be nugatory, and no practice can be right which is not founded in reason. It was so determined by the Lords, even when there was [4] no certificate at all, in the case of Captain Grooshanks, 1751, upon an appeal from Gibraltar, the monition and inhibition being returned without a certificate ; and though Sir George Lee spoke an hour with respect to the practice, Lord Granville asked whether the effect of the process was obtained, and being answered in the affirmative, said a nicety of practice ought not...
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