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![handle is hein.slavery/ssactsengr0434 and id is 1 raw text is: [444] GENOA and its Dependencies, SPEZZIA, SAVONA, and other towns. July 19,
1820.-Greenwich Hospital is not entitled to a percentage upon booty taken
by a conjunct expedition of sea and land forces.
[Explained, Case of Booty in the Peninsula, 1822, 1 Hagg. 45. Distinguished, The
Thetis, 1835, 3 Hagg. 342.]
This was.a proceeding instituted on the part of the commissioners, governors,
and treasurer of Greenwich Hospital, against Richard Birt, a prize agent, for the
purpose of trying the right of the hospital to receive five pounds per centum on the
proportion, due to the naval forces, of the proceeds of the booty taken upon the
surrender of Genoa and its dependencies, on the 18th of April 1814, to a conjunct
expedition of His Majesty's sea and land forces, under the command of Admiral
Sir Edward Pellew, now Lord Exmouth, and General Lord William Buentinck. The
usual proceedings were instituted in the Court of Admiralty, and on the 24th of
January 1815, the property was condemned as good and lawful prize to His Majesty.
On the 1st of August 1815, the Prince Regent, by warrant under his sign manual,
granted the proceeds of the booty to Lord Exmouth and Lord William Bentinck,
and appointed them trustees for the division and distribution thereof to the naval
and military forces by which the capture was effected. A monition was, in the
first place, taken out against Lord Exmouth, calling upon him to pay the amount
of the percentage claimed by the hospital, or to shew cause to the contrary ; but
in consequence of its having been discovered that a part of the proceeds were [445]
in the possession of Mr. Birt, who had received them for the purpose of distribution,
the proceeding against Lord Exmouth was abandoned, and a similar monition was
taken out against Mr. Birt. An appearance was given for Mr. Birt, and an act on peti-
tion entered into, in which the Acts of Parliament intended to be relied upon were set
forth, viz. on the part of the hospital, 46 G. III, c. 100 and 101 ; 55 G. III, c. 1 ; 57
G. III, c. 127, and on the part of Mr. Birt, 45 G. III, c. 72.
Judgment-Sir W. Scott: This question arises upon a claim of percentage made
by the governors of Greenwich Hospital, upon property taken at Genoa, in the
month of April 1814, by a conjunct expedition of sea and land forces, under the
command of Sir Edward Pellew, now Lord Exmouth, and Lord William Bentinck,
which was condemned in this Court in the month of January 1815, as lawful prize.
Various statutes are referred to as the sole foundation of this claim, and if it be not
supported by these statutes it has no foundation whatever. The only appeal made
by the claimants is to these statutes : they pretend to no other title, and the first,
and indeed the only point for consideration therefore is, whether these statutes do,
by fair interpretation, give the interest claimed. There is no occasion for entering
into controversy about the interpretation of clauses in the general Prize Acts, or
in any other Acts whatever. Received interpretations of what are called the Prize
Acts, being upon subjects of some affinity, may possibly aid the interpretation of
these special [446] Acts ; but I repeat, that the title to the percentage claimed for
the hospital must be shewn existing in these Acts (which are the acts of donation),
or it does not exist at all. Now I am of opinion, both upon reasoning and authority,
that such title cannot be maintained upon any fair interpretation of these Acts.
The Acts in number are three ; the 46th of George the Third, c. 100, one in the
same year, c. 101, and the 57th of George the Third, c. 127. There is indeed a
fourth cited (55 G. III, c. 1), but it does not bear upon the question before me, and I
shall not, therefore, at present consider it. The first Act in substance states (Sect. 4),
that all prize agents shall, from and after the passing of the Act, pay to the hospital
£1, 13s. 4d. per cent. upon the net proceeds of all prizes taken during the present
war by any ship or vessel of war in His Majesty's pay ; and states to the same
effect with respect to bounty bills. Here is not a word about land booty taken by
the conjunct operation of army and navy, and I am, therefore, led to the considera-
tion of the meaning of the word prize, as here applied. It evidently means maritime
capture effected by maritime force only-ships and cargoes taken by ships. It
is perfectly well known, that a land force has no interest in prize properly so called ;
what a land force takes by itself is not prize but booty. What is taken by a conjunct
expedition was formerly erroneously considered as vested, in a certain proportion
of it, in the capturing ships under those Prize Acts ; but in a great and important
case ( Hoogskarpel, Lords of Appeal, 1785) lately decided, it was determined, that
the whole was entirely out of the effect of these Prize Act4 ; and in so [447] deciding,
1541
2 DODS. 444.
GENOA, ETC.](ViewImageLocal?handle=hein.slavery/ssactsengr0434&div=1&collection=&method=preview&ext=.png&size=3)