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/ssactsengr0524 and id is 1 raw text is: BRIG, NAME UNKNOWN
larger sum than is right shall be imposed upon the unfortunate person who fails in
the case. But it is very desirable to look at what must be the governing principle
in all these cases. The governing principle must be this-that the party who has
been successful in the case shall be indemnified for all losses and expenses to which
he has necessarily been put by the legal proceedings, provided these are of the same
nature as those allowed in the ordinary and accustomed practice of this Court in
matters of this description.
Now, with respect to the four witnesses, and the allowance made by the registrar
for their detention here, the Court has to consider whether it was just and reasonable
that these persons should be kept in this country for the purpose of oral examination,
or whether it was incumbent on the party to have examined [369] them at an earlier
period in one of the ways pointed out by Dr. Deane. I am very clearly of opinion
that it is in the option of the party who has witnesses to be examined, to adopt that
course which appears to him most advantageous to his client. I cannot conceive
that it is ever incumbent upon the owner of a vessel, who is defendant in the cause,
to proceed to the examination of foreign witnesses by affidavit, or by commission or
oral examination, before the petition is examined upon, or, in other words, before the
witnesses for the plaintiff have been examined. He is not bound to pursue such a
course. Therefore, as to the principle, the Court hesitates not to say that the
necessary detention for the purpose of examining foreign witnesses is a proper charge
and there is no objection to the amount of the charge in this case.
It should not be supposed that as to witnesses examined in other Courts the
charges for them are always small, or that the charges are merely limited to the
expenses for the day; because, in my experience, shortly after I had come into the
profession, the Court of Queen's Bench allowed the sum of £2000 for one witness,
because in their opinion he was a most important witness for the decision of the
cause. iHe was a Russian, and refused to remain unless he was remunerated on
exorbitant conditions. I well remember that case : I do not cite it as an example to
be followed, and I hope it may not occur again ; but I do so for the principle that the
detention of witnesses, where absolutely necessary for the purposes of justice, must
be paid for by the losing party. I have no doubt on that point.
As to the second point, the only enquiry the Court can or will institute is this-
were the services of Mr. Wendt absolutely necessary for the purpose of enabling the
proctor to conduct the cause ? With respect to foreign witnesses and interpretation,
it is impossible to suppose that the proctor or solicitor is acquainted with the
languages they speak, and it must be through some medium, that of an interpreter,
that their evidence is obtained. It might be that they might be examined by
commission through an interpreter, but that is only a course whereby it is more
likely the expense would be augmented. I think that the sum of ten guineas for the
services of Mr. Wendt is as moderate as can be ; and, consequently, I pronounce
against both the objections. The plaintiffs, of course, must pay the costs.
Deacon & Son, proctors for the plaintiffs.
Dyke and Stokes, proctors for the defendants.
[370] BRIG, NAME UNKNOWN. December 21, 1864.--Slave bounties-Joint
capture-] & 2 Vict. c. 47, s. 2-2 & 3 Vict. c. 73.-A Queen's ship, which is
authorised to capture slave ships, being in sight during the chase and capture
by another ship of war of a vessel equipped for the slave trade, is entitled to
share as joint captor in the tonnage bounties awarded under 1 & 2 Vict. c. 47,
unless the animus capiendi is clearly rebutted. In establishing a claim to joint
capture of a vessel equipped for the slave trade, proof that the alleged joint
captor was seen by those on board the prize before capture is important, but it
is not absolutely required as in cases of prize of war. At daylight on a morning
nearly calm, Her Majesty's steamships Falcon and Dart were in
company, each under canvas only; each had authority to capture vessels
engaged in the slave trade; but the Falcon was on her voyage home. A
vessel, which afterwards proved to be equipped for the slave trade, appeared
in sight of both ships : the Dart got up steam and went in chase. The
captain of the Falcon, deeming the Dart sufficient for the purpose, did
not get up steam, but continued his course. The chase lasted a few hours only ;
and the capture by the Dart took place in daylight, in sight of those on deck
BR. & L $69.](ViewImageLocal?handle=hein.slavery/ssactsengr0524&div=1&collection=&method=preview&ext=.png&size=3)