Sparenburgh v Bannatyne
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1797 |
| Date | 27 November 1797 |
| Court | House of Lords |
English Reports Citation: 126 E.R. 837
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER AND IN THE HOUSE OF LORDS
[163] sparenburgh w/bannatyne. Nov. 27th, 1797. A native of a foreign state in amity with this country, taken in an act of hostility on board an enemy's fleet, and brought to England as a prisoner at war, is not disabled from suing while in confinement, on a contract entered into as a prisoner at war (a)2. Assumpsit for wages due to the Plaintiff as a seaman. Pleas. 1st, Non assumpsit. 2d. That the Plaintiff is an alien, born in foreign parts, to wit, in Holland, in parts beyond the seas, out of the allegiance of the King of Great Britain, and within the allegiance of a foreign power, and that before the suing out of the original writ of the Plaintiff, and before the said day and year in the said declaration mentioned, to wit, on, &c. a public arid open war was commenced, waged, and carried on, and from thence hitherto hath been, and still is waged, and carried on, between our Lord the now King and his subjects, and the persons exercising the powers of government in Holland and the inhabitants and people of Holland under such government, to wit, at, &c. And that the Plaintiff before the said day and year in the said declaration mentioned, and at the suing out of the said original writ of the said Plaintiff, and also at the commencement of the said war, was and ever since has been and still is an enemy of our said lord the King, adhering to the persons so exercising the powers of government in Holland, and so being enemies of our said lord the King as aforesaid, to wit, at, &c. Aud thia tfce Defendant is ready to verify : wherefore, &c. 3d Plea. The same as the second ; only omitting "That the Plaintiff is an alien, borne in foreign parts, to wit, in Holland, in parts beyond the seas, out of the allegiance of the King of Great Britain, atid within the allegiance of a foreign power." place by the minister," &c. By s. 2, " every such letter of attorney or will shall contain the name of the ship to which the person granting the same last belonged, the residence, profession, or business of the person in whose favour it is made, and the day of the month and place where it was executed." By 32 Geo. 2, c. 34, a. 1, these provisions are extended to marines ; and by s. 2, "No letter of attorney or order made by any petty officer, seaman, marine, &o. discharged from the service of His Majesty shall be good and valid, for receiving wages, prize-money, or other allowances of money due for such service, unless attested by a clerk of the treasurer of the navy," &c. (a)i Vid. Turtle v. Harlwell, 6 T. R. 426. ()a Vide Maria, v. Hall, 2 B. & P. 236. S. C. 1 Taunt. 33. Rex v. Depardo, 1 Taunt. 26. Bazett v. Meyer, 4 Taunt. 824, 834. 838 SPARENBURGH V. BANNATYNE 1 BOS. & PUL. 164. Replication. To the first Plea, joinder in issue. To the 2d. Protesting that the said Plea, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar the Plaintiff from having and maintaining his aforesaid action against the Defendant; nevertheless, for replication in this behalf the Plaintiff saith, That he, before the making the said several promises and undertakings of the Defendant, in the said declaration mentioned, to wit, on, &c. was a prisoner of war, in custody of the forces of our Lord the King, in parts beyond the seas, to wit, at the island of Saint Helena, to wit, at, &c. and being such prisoner as aforesaid, he the Plaintiff then and there wa, by and with the consent and permission of the commanding officer of [164] the forces of our said Lord the King, at the island of Saint Helena aforesaid, hired, employed, and retained by the Defendant to serve as a seaman and mariner in and on board the said ship or vessel called the "Caledonia," on his retainer, and at his special instance and request; and he the Plaintiff did then and there serve as such seaman or mariner in and on board such ship or vessel on a certain voyage whereon the said ship or vessel was then hound, to wit, from the island of Saint Helena aforesaid, to the port of London aforesaid, to wit, at, &c. Without this, that he the Plaintiff, at the time of aoing forth the original writ of him the Plaintiff, was, or at any time hitherto hath been, an enemy of our said Lord the King, adhering to the persons exercising the powers of government in Holland, and so being enemies of our said Lord the King, as in and by the said plea is above alleged. And this he is ready to verify : wherefore, &o. To the 3d Plea. Inducement and traverse, the same as to the 2d. Rejoinder. Tendering issue on the traverses. Surrejoinder. Joinder in both issues. This cause was tried before Eyre Ch. J. at the Guildhall Sittings after last Trinity term, when it appeared in evidence, that the Plaintiff, being a native of Oldenburgh in Germany, was taken prisoner at the Cape of Good Hope, he than serving as a sailor in the Dutch fleet under Admiral Lucas ; that he was sent from the Cape to Saint Helena, in a British frigate, as a prisoner of war, and was there put on board the " Caledonia," a British merchantman, then in great want of bands, by order of the governor of the place, that during the voyage from Saint Helena to England he was treated like the rest of the crew, and did his duty to the satisfaction of the captain, the Defendant in the action ; that on his...
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