HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0178 and id is 1 raw text is: 2 BOB, & PUL, (N, R.) 210. ARROWSMITH V. LE MESURIER
privilege of carrying out investments to the settlement to which they are bound, and
there making the best advantage of them in their power, it would be absurd to say
that such investments were not the subject of a legal insurance. My Brother Marshall,
in his book (p. 73, vol. i.), when treating this subject, does not seem to have imagined
that the prohibition as to insurance of wages extended to the captain as well as the
seamen ; for he commences his observations by these words, to prevent the desertion
of seamen. So the 8 Geo. 1, c. 27, was passed to prevent masters paying seamen
above one moiety of their wages due to them beyond the seas. Indeed the regulation
is founded altogether on the marine law, which does not allow the mariners any wages
unless the ship earn freight, and which law would be completely evaded if the mariners
could insure their wages. Considering, therefore, that a clear distinction exists in law
with respect to the insurance of wages between the captain and the mariners, it is not
necessary to discuss the effect which would result from the facts of this case as
establishing the captain to have acted in the double character of captain and supercargo.
ROOKE J. I am of the same opinion. This policy being against the perils of the
sea and capture, and not against the loss of the slaves by death during the voyage,
no objection arises to it as contravening the policy of the laws passed to secure
proper care and attention to the [210] slaves. The captain's commission and
privileges, therefore, appear to me to be the subject of a legal insurance.
CHAMBRE J. The common laws follows the marine law in not allowing wages
to be due till the safe arrival of the ship. This rule applies to the mariners, but there
is no decision in the marine law prohibiting the captain from recovering his wages up
to the time his ship is captured. Indeed the captain and the mariners are treated as
very different subjects of consideration in the marine law ; the former are supposed to
be persons of trust and confidence with the owners, and to be bound to them by the
terms of their contract, nor is there any fear that they will run away or desert ; and
so far is the idea of personal trust and confidence between the owners and the master
carried, that the latter has not, as the mariners have, the choice of proceeding against
the ship in the Admiralty, or suing at law, but must pursue his remedy at law;
moreover he is considered quasi owner himself, and liable to be tried. Indeed, con-
sidering that the captain may pay himself, if he has money in hand, it is probable
that we should have many cases in the books of actions to recover back money retained
by captains for wages due before capture, if their payment depended, like that of the
mariners, on the safe arrival of the ship. This insurance, therefore, appears to me
to be legal.
Rule discharged.
[211] ARROWSMITH V. LE MESURIER. June 13th, 1806.
If a magistrate's warrant be shown by the constable who has the execution of it to
the person charged with an offence, and he thereupon, without compulsion, attend
the constable to the magistrate, and after examination be dismissed, it seems this
is not such an arrest as will support trespass and false imprisonment (a).
This was an action of trespass for assault and false imprisonment. At the trial
before Grose J. at the last assizes for the county of Suffolk, it appeared that a warrant
having been granted by a magistrate, for apprehending the Plaintiff upon a charge of
conspiracy to sue out a fraudulent commission of bankrupt, a constable went with
the warrant to the Plaintiff's house, and showed it him; that after conversing some
time with the constable, the Plaintiff desired to have a copy of the warrant, which the
constable permitted him to take; after which the Plaintiff attended the constable to
the magistrate, and after being examined upon the subject of the charge, was dismissed,
about six hours after the time when the warrant was first shown to him; that the
constable never touched the Plaintiff, and that due notice of the action had been given.
The Jury having found a verdict for the Defendant, a rule was obtained, calling
on the Plaintiff to show cause why that verdict should not be set aside, and a new
trial be had.
On this day Sellon Serjt. being called upon to support the rule, contended, that
(a) And see M'ClouLghan v. Clayton, Holt, Ni. Pri. 478. Bisten v. Burridge,
3 Campb. 139.](ViewImageLocal?handle=hein.slavery/ssactsengr0178&div=1&collection=&method=preview&ext=.png&size=3)