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![handle is hein.slavery/ssactsengr1026 and id is 1 raw text is: ABERNETHY V. LANDALE
the colleges, and had an ancient fee annexed to my office. It seems admitted, that,
if the defendant resided within the walls of the college, he would be exempt. But it
is certainly true, that none of the servants but the porter do live within the walls.
Besides, the agreement with the city, which declares that the privileges extend to
barbers with their household, overturns such a distinction. In short, the defendant
seems to be a fully privileged person. I think the verdict, on both points, contrary
to evidence.
The rule made absolute [1]'.
[539] ABERNErHY against LANDALE. Saturday, 25th Nov. 1780. An officer or
sailor who has engaged to serve on board a letter of marque, for certain wages
during the voyage, and a share of all prizes, is not entitled to any part of the
wages if the ship is taken before she compleats her voyage, although he shall
have been sent from the ship before the capture, as prize-master on board a prize
taken in the course of the voyage.
This action was tried before Buller, Justice, at the sittings after last Trinity term,
when a verdict was found for the plaintiff, subject to the opinion of the Court, on a
case which, (as far as is material,) stated:-That the defendant was captain of a ship
called the Wincbcombe, which was provided with letters of marque, and was to
cruize for three months [2], and then proceed to the coast of Africa, and from thence
to America: that the plaintiff, in consideration of X5 by the month as wages, and of
certain shares of all prizes which should be taken by the Winchcombe in the course
of the cruize,-entered on board the ship, as second lieutenant, and subscribed certain
articles, by which, among other things, it was agreed between the defendant as
captain, and the plaintiff, together with several other persons, as the officers and crew
of the ship; that the plaintiff, as second lieutenant, and the said crew, should repair
on board, and proceed in the ship, and duly serve, in their several capacities and
stations, in her then intended voyage from London to the coast of Africa, and at and
from thence to such place or places in America as the said master, or other master or
masters for the time being, should direct, and from thence back to the port of London,
or some other her discharging port in Great Britain; and that the wages or monthly
pay to grow due to the said officers, sailors, and others, belonging to the said vessel,
for their service on board thereof that present voyage, should be paid to, and accepted
by them, in the manner following, viz. one half part thereof at the port or places of
the delivery of the negroes in America, and the remaining part thereof, and also the
wages which should afterwards become payable within 30 days next after the ship's
arrival at her port of discharge in Great Britain: that the ship sailed from London on
the 25th of May, 1779, and on the 1st of August, took a Spanish vessel, of which the
plaintiff was appointed prize-master: that he carried her into Lisbon, where he con-
tinued, till January following, in the care of the prize and her cargo, and till the same
were disposed of by the agent appointed by the owners of the Winchcombe, and
afterwards to his passage to England, and arrived on the 15th of February: that the
Winchombe, on the 3d of [540] September, was taken by two Spanish men of
war, in her passage to the coast of Africa, after the time limited for cruizing, and
before her arrival at the port or place of delivery of the negroes in America, mentioned
in the articles, or at her discharging port in Great Britain, or at any other port
whatsoever.
The question stated for the opinion of the Court was, whether the plaintiff was
entitled to recover (L38, 7s. 8d.) the whole of the sum demanded by the action [1]2, or
any part of it? The case was argued on Tuesday, the 14th of November, by Baldwin,
for the plaintiff, and Erskine, for the defendant.
For the plaintiff, it was contended, that the justice of his demand could not be
disputed, since be had continued in the defendant's service till his return to England.
He did not desert the ship, but left her by the command of the defendant. It is
indeed laid down as a general maxim, that freight is the mother of wages; but the
There has not yet been any new trial had, (vacation after T. 22 Geo. 3).
Supra, Syers v. Bridge, p. 527.
Being at the rate of £5 per month, from the day the ship sailed, to that of
the plaintiff's return to England.
342
2 DOUGL 539.](ViewImageLocal?handle=hein.slavery/ssactsengr1026&div=1&collection=&method=preview&ext=.png&size=3)