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![handle is hein.slavery/ssactsengr0113 and id is 1 raw text is: LE BON AVENTURE [1810]
questionably ought to prove, that the mask has been assumed solely for the pleaded
purpose. The claimants appear certainly in misericordia, and solicit an indul-
gence which under no other circumstances they could expect to obtain. But when
there appears so much fidelity, punctuality, and strict neutrality in the conduct
of the merchants of Lubeck in trade with and relation to this country, notwith-
standing the possible danger which might result from pursuing a line of conduct
so directly in opposition to the views of the enemy: When the extreme embarrass-
ments and difficulty which obstruct their remaining trade are recollected, the Court
will probably relax the strict rule of law and permit these further proofs to be
introduced.
[211] JUDGMENT.-Sir Win. Grant-Is there no precedent in the recollection of
counsel for such an extension of indulgence? We ourselves are not aware of any.
The whole seems to have been assumed as a mask to, deceive either Swedish or
British cruizers, and not at all for the purpose of obviating any danger to be
apprehended from France. We cannot therefore permit a party to introduce
additional proof with respect to a transaction evidently calculated to defraud our
belligerent rights or those of our ally.
Pronounced against the appeal.
[As to further proof, see Naval Prize Act, 1864 (27 and 28 Vict. c. 25), s. 21 ; and
Rules in Prize Proceedings, 1898 (Stat. R. and 0. 1898, pp. 905 et seq.) rr.
52-57.]
LE BON AVENTURE, LAMORIINIERE, Master [Feb. 24, 1810].
Asserted joint capture on the part of an associated squadron. Onus probandi
altogether rests with the party setting up the claim. In the absence of other
evidence the ships logs introduced; referred to the Trinity masters. To
impeach their decision necessary to point out obvious neglect, since they
must be considered the best judges of such evidence. The general presump-
tion that the actual captor did his duty in making signals when they could
be made with effect, etc. Necessary to remove it by positive evidence.
An appeal was prosecuted in this cause from the sentence of the High Court, of
Admiralty, pronouncing against the interest of the fleet, with which the actual
captor had been associated at the time, the capture appearing to have been made
out of sight of the fleet by His Majesty's ship Albion, and in sight of the Naiad, one
of the vessels composing the said squadron, but which had parted from the main
body the evening before, for the purpose of proceeding to Plymouth with two prizes
in company. The claim of the Naiad to share as joint captor was therefore ad-
mitted in the court below, where, in order to obtain a more early decision of the
cause, Captain Ferrier of the Albion being then in the East Indies and his return
[212] uncertain, his answers to the allegation on the part of the fleet were waived
by consent, on certain facts pleaded being admitted by his proctor on his behalf, a
minute of which was filed 20th March 1807, whereby the King's Proctor admitted,
that a strange sail appearing, the Albion chased from the fleet by signal, and having
captured La. Petronelle in sight of the fleet, went in chase of the prize in question
without any further communication or receiving any further signal for that pur-
pose.
Dallas for actual Captors Respondents.-The allegation of the asserted joint
captors in the court below consisted of several articles, of which Captain Wallis
of the Naiad, in the absence of Captain Ferrier, admitted only the three first,
pleading certain general regulations, viz.
1st. That when several of His Majesty's ships are associated together and form
a fleet or squadron under the immediate direction, orders, and controul of any rear
admiral, vice-admiral, or admiral, commodore, or other commander, it is an
uniform and positive regulation in the British navy, that no ship attached to or
belonging to such fleet or squadron is permitted, on any pretence whatever, (wind
and weather excepted,) to part company from or go out of sight of such fleet or
squadron, without first obtaining or receiving orders for that purpose, by signal or
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