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![handle is hein.slavery/ssactsengr0109 and id is 1 raw text is: SMITH V. BROWN [1837]
the penalties have been imposed by the Court below, were cognizant of and privy to
the fact, of any of these three persons being slaves, or intended to be dealt with as
such (supposing that any were). The duty of making out these facts lies upon the
Crown or the seizor enforcing its rights,-as to the Owners, there is a total absence
of proof, not only of any criminal design, but of all knowledge on their part of the
fact of any negroes being on board; as to the Master and Mate, there is some evi-
dence that required consideration, and the question as to their knowledge is not so
free from doubt.
It is not to be expected that upon such a question, depending upon a considerable
number of facts, those facts should strike all our minds precisely in the same form
of view. Their Lordships, therefore, do not propose to enter into a minute con-
sideration of the evidence in detail: it is sufficient to say, that we think that the
Captain acted bona fide, and on the whole, that we are not satisfied judicially, that
he or the Mate was privy to the fact, of the three persons, or any of them, being
either slaves or intended to be dealt with as such.
We shall, therefore, advise Her Majesty to reverse the sentence of the Court
below; but as we are of opinion that there was probable cause of seizure, we shall
so certify, and that no action is to be brought [34] against the seizors; we reserve,
however, to the Appellant any right he may have against the Court below and its
officers for the disobedience of the Inhibition in this case.
The following order was made in conformity with the above judgment by the
Queen in Council, on the 13th of July 1840.
That the decree or sentence appealed from be reversed; the principal cause
retained therein; that the claim of the said Marcus Hill Bland, given in the Court
below, be admitted; and the said ship or vessel Winwick, her tackle, apparel, and
furniture, be restored to the claimant, for the use of the Owners and proprietors
thereof, or the proceeds thereof (transmitted to the registry of this Court) paid to
them, but without costs and damages against the said William Henry Shirreff, Esq.,
the seizor of the said ship or vessel. And their Lordships having reported that
there was probable cause of the seizure and prosecution of the said ship or vessel,
that the said Appellants, the Owners thereof, be at full liberty to proceed as they
may be advised, against any person or persons whom it may concern, for further
compensation for any loss they may have sustained, or expenses that may have been
incurred, by reason of the sale of the said ship or vessel under the authority of the
Court below, after service of the Inhibition under seal of this Court.
[See note to Sherwill v. R. (1836), 2 Moo. P.C. 14, as to prosecutions under 5 Geo.
IV. c. 113. On point as to monition, see the subsequent proceedings sub nona.
Barton v. Field, 1842-43, 4 Moo. P.C. 273; and for practice of Privy Council
in regard to monition and the enforcement of its orders generally, see Liddell
v. Beal, 1860, 14 Moo. P.C. 1; Martin v. MacKonochie, 1870, 7 Moo. P.C. (N.S.)
239; Read v. Lincoln (Bishop of) (1892), A.C. 644; Judicial Committee Acts
1833 (3 and 4 Will. IV. c. 41), s. 28, and 1843 (6 and 7 Vict. c. 38), s. 8, Colonial
Courts of Admiralty Act 1890 (53 and 54 Viet. c. 27), s. 6; and 0. in C. of
Dec. 11, 1865 (Stat. R. and 0. Rev. vol. iv. p. 403.]
[35] ON APPEAL FROM THE COURT OF APPEALS FOR THE PROVINCE OF
LOWER CANADA.
ROSINA ANN' SMITH,-Appellant; DAVID BROWN,-Respondent*
[July 7, 1837].
Heard ex parte.
Claim of a legacy by privilege of Hypotheque by an ante-nuptial contract, against
* Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, the Chief
Judge of the Court of Bankruptcy [Sir Thomas Erskine], and Sir John Nicholl.
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