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![handle is hein.slavery/ssactsengr0041 and id is 1 raw text is: us by the special case, that the justices making the original order had jurisdiction to
make that order; and of course that the Quarter Sessions had jurisdiction to make
the order on the appeal. The consequence is, that the postea must be delivered to
the defendants.
[126] EARLE AND OTHERS against ROWCROFT. Thursday, Nov. 27th, 1806.
Barratry is any fraudulent or criminal conduct against the owners of ship or
goods by the master or mariners, in breach of the trust reposed in them, and to
the injury of the owners; although it may not be done with intent to injure
them, or to benefit at their expence the master or mariners. And therefore,
where a master had general instructions to make the best purchases with dis-
patch, this would not warrant him in going into an enemy's settlement to trade
(which was permitted by the enemy) though his cargo could be more speedily
and cheaply completed there; but such act, in consequence of which the ship
was seized and confiscated, is barratrous.
[Distinguished, Grill v. General Iron Screw Collier Company, 1866-68, L. R. 1 C. P. 610;
3 C. P. 476. Approved, Cory v. Burr, 1883, 8 App. Cas. 399. Referred to, West-
port Coal Company v. ]'lPhail [1898], 2 Q. B. 135.]
This was an action on a policy of insurance, dated 28th January 1804, on the ship
Annabella, at and from Liverpool to the coast of Africa, during her stay and trade
there, and to the port of sale in the West Indies, with liberty to exchange goods, &e. ;
and the plaintiff averred a loss by barratry of the master. It appeared at the trial at
Guildhall, that the master, who was also supercargo, on his arrival off Cape Coast
Castle, a British settlement on the coast of Africa, let go an anchor, and began to
trade there for two days ; but receiving intelligence that he could barter his goods for
slaves more expeditiously and advantageously at D'Elmina, a Dutch fort about 7 miles
to windward, he weighed anchor and proceeded to this latter place, which had the
Dutch flag flying and guns mounted, where he exchanged his goods, consisting,
amongst other things, of muskets and gunpowder, with the Dutch governor and
another resident there, for slaves; Holland being at that time at war with Great
Britain, and he having a letter of marque on board against the French and Dutch.
After taking on board a number of slaves, the captain, who was then on shore at
D'Elmina, receiving information that an English frigate was in sight, sent a note on
board the Annabella, directing her to sail immediately from thence to Cape Coast,
to prevent, as be expressed himself, mischief ; but before she reached the latter place
she was pursued and captured by the English frigate, and sent to Jamaica, where she
was condemned as prize, for having traded with the [127] enemy. It appeared
further, that it had been usual to keep up a trading intercourse, in boats and small
craft, between the English and Dutch settlements on this part of the coast, even in
times of war between the mother countries; and that the captain's object in going to
D'Elmina was to complete his cargo as cheaply and expeditiously as he could. It was
admitted that he had no particular instructions to go there, but that he was directed
generally to make the best purchases with dispatch. It was also in proof, that when
the ship was about to go to D'Elmina, the surgeon asked the captain if there was no
impropriety in going there; to which he answered that they should be gone soon and
nobody would know it. And also that besides his usual pay as captain, he had a
commission on purchases and sales, which he was entitled to receive at the end of the
voyage. Lord Ellenborough C.J. was of opinion, that this trading with the enemy
by the captain, without the authority of his owners, though intended principally for
their benefit, being in contravention of his duty to them, and subjecting their property
to confiscation, was barratry ; on which the plaintiff was entitled to recover in this
action : but the case being new in specie, his Lordship gave the defendant leave to
move the Court to set aside the verdict for the plaintiff and enter a nonsuit. A rule
nisi was accordingly obtained for that purpose early in the term ; against which
Sir V. Gibbs, Park, Topping, Marshall Serjt. and Scarlett, shewed cause, and
contended that the act of the captain, in going to trade at an enemy's settlement,
unauthorized as it was by his owners, and illegal in itself, thereby subjecting their
property to seizure and confisca-[128]-tion, though intended for their benefit as well
as his own, was barratrous. That the act of trading with an enemy, and going
292
EARLE V. ROWCROFT
8 EAST, 126.](ViewImageLocal?handle=hein.slavery/ssactsengr0041&div=1&collection=&method=preview&ext=.png&size=3)