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![handle is hein.slavery/ssactsengr0455 and id is 1 raw text is: THE SOCIEDADE FELJZ
into the details of such subsidiary matter in the answer, when the reply of the party
proceeding might possibly admit the truth of the general averment, and allege that,
notwithstanding such admission, the law was in their favour. Undoubtedly, in
the answer, the principal ground of defence upon which the respondent relies, should
be clearly stated ; but matters merely subsidiary to what forms that defence, will
more properly be introduced in the rejoinder. How then does this doctrine apply
to this rejoinder ? The reply sets forth, that Messrs. Dunlop were not indebted to
the owners of the Hebe ; and facts and reasons are stated to shew that they were
not so indebted. Surely, then, it is not only competent, but absolutely necessary,
that the owners should [154] state, in the present plea, the important facts which
they have alleged, to support their original averment. The rejoinder next proceeds
to state that the power of attorney, authorising Messrs. Brown to displace Malcolm
from the command of the ship, was received by Brown & Co., at Sydney, before
the said brig's return from her voyage to Java, and that if Messrs. Dunlop really
paid any portion of the freight due by them on account of the said voyage, to the
said Malcolm, it was after the brig's return, and when they well knew that the said
Brown & Co. had become the authorised agents of the owners, and were invested
with a special authority to displace Malcolm, the former master. This, I think,
is an admissible averment, as meeting the statement distinctly set up in the reply,
that, in the payment of the debt as charterers, they had, prior to the removal of
Malcolm, paid to him the whole amount of the freight due from them to the said
brig. With respect to the remaining averment, that in the month of February,
1840, prior to the ship's return from Java, James Turner, brother of one of the owners
of the ship, who was then at Sydney, at the instance of the owners, had an interview
with Messrs. Dunlop, and then cautioned Messrs. Dunlop not to make any further
advances to Malcolm, the then master. I think this averment is also entitled to be
admitted as corroborative of the former averment, that Messrs. Dunlop were fore-
warned against making any further payment to the master. Upon the whole,
then, I think that the rejoinder is entitled to be admitted. I am well aware that an
increase of expense and delay may ensure from this further investigation, but it
is abundantly clear that the [155] party has a perfect right to make good his defence
by these averments, and that they are necessary and called for by the reply.
Haggard.-My party must have time to answer these matters.
Per Curiam.-If I am furnished with an affidavit that, for the purposes of justice,
it is necessary to answer them, I will allow time.
THE SOCIEDADE FELIZ -(Joao de Souza Campos). June 13, 1843.-Cases of
claims to joint capture of slave vessels are to be governed by the principles
established in the Prize Court of Admiralty with respect to claims to joint
capture in time of war ; subject, however, to such exceptions as the distinction
between the respective cases may create ; (exempli gratia) where, in the former
instance, a claim to joint capture is supported solely by the evidence of releasing
witnesses. Principles as to what will constitute association between ships of
war. An order was given by a superior to an inferior officer, by which the
latter was prevented joining with his vessel in the chase of a slave ship, which
was afterwards captured by the vessel of the former. Held, that a claim to
joint capture was sustainable. A claim to joint capture founded on a slave
ship being captured by one vessel in sight of the claimant vessel.
[S. C. 2 Notes of Cas. 430 ; 7 Jur. 956.]
The facts of this case have been already reported (ante, Vol. I. 303), and the ques-
tion, which was a claim to share in the capture of a Brazilian slave ship condemned
by the Mixed Commission Court at Sierra Leone, was now argued upon the merits.
In support of the claim, Addams and Robertson submitted,-That the evidence
in the cause fully and satisfactorily established, that when the prize was first seen,
and the Harlequin was about to give chase, the Forester was signalled from
that vessel to remain behind and pick up the Harlequin's boats. That this signal
was admitted by Lord F. Russell, the commanding officer of the Harlequin, to
have been made by his directions; and all opportunity of actual co-operation in
the chase was thus taken away from the Forester, by the order which Lieutenant
Bond was bound to obey. That in obeying that order, and picking up the boats,
as [156] directed, the officers and crew of the Forester rendered a virtual assist-
E. & A. v.-23*
2 W. ROB. 154.](ViewImageLocal?handle=hein.slavery/ssactsengr0455&div=1&collection=&method=preview&ext=.png&size=3)