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![handle is hein.slavery/ssactsengr0050 and id is 1 raw text is: THE KING V. INCLEDON
vessels of war, or by any private or other ship or vessel, and condemned as lawful
prize in any Court of Admiralty,) shall be entitled to the privileges of a British ship,
&c. It is in this respect a restraining not an enlarging statute; and the question is
whether this ship be within the exception. Now it appears by the sentence that she
was taken as being employed in carrying ol the African slave trade, in violation of
the laws of this country, and condemned on that account. But it is said that by
the certificate of condemnation required by s. 25 it appears she was condemned as
lawful prize, and that is sufficient. But the Act does not make the certificate of the
Judge final and complete evidence of the cause of condemnation of the ship; and
if this Court see that she was condemned for a breach of a Revenue law, they will
not give such a conclusive effect to the certificate as to shut out from their view the
real cause of her condemnation : and I believe it has not yet been decided that a
ship, for violating a Revenue law, is the object of condemnation as lawful prize. This
ship therefore is clearly not brought within the exception in the Registry Act, and
we should be doing injustice in compelling the commissioners to grant registry.
Per Curiam. Rule discharged.
[268] THE KING, ON THE PROSECUTION OF SIR ARTHUR CHICHESTER, against
INCLEDON. Thursday, May 6th, 1813. The prosecutor of an indictment for
obstructing a highway, must shew himself to be the party grieved in order to
obtain costs under the 5 & 6 W. & M. c. 11, s. 3: therefore where the prosecutor
did not apply for the costs until two years after judgment given, and it did not
appear that he had ever used the highway before it was stopped, and whilst it
was stopped declared he did not care about it : Held that he was not entitled to
costs as the party grieved, although the prosecution was at his instance and
expence.
In April 1809 the defendant was indicted at the Quarter Sessions for the county
of Devon for obstructing a public road, which indictment was removed by certiorari
at his instance, and tried at the Lent Assizes 1810, and a verdict found for the Crown.
Judgment was given in the following Michaelmas term, and the defendant fined 6s. 8d.
and his recognizance discharged. In Michaelmas term last a side Bar rule having
been obtained for taxing the costs to be paid by the defendant to the prosecutor ;
Harris in the following term obtained a rule nisi for discharging that rule, on the
ground that Sir A. Chichester was neither the prosecutor nor party grieved within
the meaning of stat. 5 & 6 W. & M. c. 11, s. 3; in support of which the affidavits
stated, that the defendant about 18 years ago, at which time Sir A. Chichester was
an infant, purchased the property through which the road in question passed, which
had been shut up ever since the purchase until the indictment was preferred. That
before that time Sir A. Chichester never used the road in question. That on the
death of Sir John Chichester, his immediate ancestor, in Sept. 1808, a short time
before the indictment was preferred, Sir Arthur became possessed of his property.
Application was then made by his steward to the defendant to open the road, which
he declined doing, until the right was tried; in the mean time, however, he gave
permission to Sir Arthur or his servants to pass through that part of his estate. That
in a conversation between Sir Arthur and the defendant, he told the defendant that
he knew nothing about the road ; that he [269] was a young man just come to his.
estate; that his attorney had told him he had a right to the road, and that he ought
to maintain his right, but as to himself he did not care about it. That since the road
had been declared to be a public road and thrown open, neither Sir Arthur nor his
servants had ever used it; and that it never could have been advantageous to him to.
use it, as there were better and more commodious roads for the enjoyment of his.
estate. It was stated also, that soon after Sir Arthur came to his estate an auction
was held for the sale of some timber in the woods belonging to him : that one of the
conditions of sale was, that the timber should be conveyed over the road in question
but several of the bidders declared that as there were other more commodious and
convenient roads than that, they would not bid at such auction until that condition.
was withdrawn. It was also sworn, that the opening this road would probably be
detrimental to the estate of Sir Arthur, by subjecting the same to considerable tres-
passes. The name of Sir A. C. did not appear on the back of the indictment. The
rule was opposed upon the following grounds as disclosed by affidavit: that for.
100
I M. SG S. 268.](ViewImageLocal?handle=hein.slavery/ssactsengr0050&div=1&collection=&method=preview&ext=.png&size=3)