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/ssactsengr0387 and id is 1 raw text is: 440 THE GEORGE 3 C. ROB. 213.
established, but the fact being averred, I must admit the allegation, leaving it to
the party to consider, upon this observation, what proof will be necessary to sustain it.
Allegation admitted.
THE GEORGE -(Dunkin, Master). Jan. 21, 1801.-Motion in the Instance Court
to arrest a ship taken at Curagoa, never brought to adjudication, rejected.-
Proceedings in the Prize Court directed to call on the captor to proceed to
adjudication.
(Instance Court.)
In this case, Laurence moved to arrest the ship on the part of the owner, on a
suggestion that the ship had been taken prize in the West Indies, at the capture of
Curagoa, and sent to Europe with dispatches to government, without having been
brought to adjudication.
[213] The King's Advocate said,-there was no instance in which the Court
had granted a warrant in a case of this nature, where the ship wa. liable to be
proceeded against as a prize ; that the proper mode would be to take out a monition
against the captors to proceed to adjudication.
Court.-I am disposed to think that this motion is unnecessary. If a return
was to be made by government, in whose hands it appears the ship is, that they
held it as agent for the captor ; the proceedings must then take the common form
of a proceeding in prize. Some reference has been had to the case of The General
Waltersdorf (1st Adm. Rep. p. 348), but in that case the Court said, you must first
proceed against the captors.
If, in the present instance, the ship was in the hands of a foreigner, or in danger
of being sent away, the Court would be called upon to exert its utmost diligence ;
as the matter now stands, there is no necessity for this motion, and no end will be
effected by it.
Motion rejected.
THE SISTERS -(Tubbs, Master). Feb. 17, 1801.-Averment of property in
cause of possession-objected, that it was insufficient. Objection overruled.
This was a case on the admission of an allegation on the part of Robert Charnoek,
proceeding against the ship in a suit of possession. An objection was taken that
the manner in which the title was avowed, was not sufficiently expressed.
[214] On the other side, the King's Advocate and Swabey contended that the
allegation went as far as was necessary or proper ; that it exhibited the instrument
of purchase, and expressly averred, that the owner has never sold or transferred
the possession ; and then calls on the other party, who has got into possession,
to prove his title, and shew cause why he should not be dispossessed.
Court.-It appears that the averment is sufficient to entitle the allegation to
admission. It is a case in which Mr. R. Charnock has taken out a warrant of
possession ; he states the purchase made by him, and proceeds to say, that ever
since the said ship, her tackle, &c. have been the true and legal property of the
said R. Charnock, the possession is withheld from him; but on what grounds
is not yet at all disclosed. It may be that it is retained by the master, on some
squabble with him, involving no question of property. If it should turn out that
a question of property is involved, it will be then time enough for the Court to
consider whether it can interpose. At present nothing appears. I think the title
is sufficiently averred to procure admission for the allegation. It will be for the
party proceeded against to set out the grounds on which he resists the demand
of a party claiming as proprietor.
Allegation admitted.
[215] THE HOPE -(Horneastle, Master). Feb. 26, 1801.-Salvage : 'Monition
calling on the owner to shew cause why salvage was not due : Objection that
civil proceedings on salvage could be instituted in rem only, and not against
the owner, overruled.
[Referred to, The Cargo ex Schilles, 1877, 2 P. D. 149 ; The Elton, [1891] P. 270.]
(Instance Court.)
This was the case of a protest entered on the part of the East India Company
to a monition calling upon thera to shew cause why salvage should not be decreed](ViewImageLocal?handle=hein.slavery/ssactsengr0387&div=1&collection=&method=preview&ext=.png&size=3)