1823.

WELLARD

v.

Moss.

ceived by the defendant, by virtue of a power of attorney from the plaintiff to the defendant, empowering the latter to receive the plaintiff's wages as they became due to him, as acting boatswain of his Majesty's ship Bucephalus.

The defendant further gave in evidence, to meet this demand of 1637. 18s., a debt of 71. and upwards, from the plaintiff to him, not included in the above acknowledged account, for money lent and advanced, and for goods sold and delivered. Subsequent to this acknowledgment, viz. on the 15th October, 1813, an indenture or deed of assignment of the prize-money to which the plaintiff was entitled for his services on board the said ship, in respect of the captures of the island of Java, Batavia, and the Palambang, was executed by the plaintiff to the defendant, bearing date on that day, in consideration of the sum of 100l. At the time of signing the said deed of assignment the plaintiff was acting boatswain of the Bucephalus (but without an Admiralty warrant), and was then on board that ship. The plaintiff was proved to have been boatswain's mate on board the said ship, from the 17th March, 1809, to the 18th January, 1811, when he was appointed acting boatswain of the said ship, and so remained on board as acting boatswain until and at the time of the execution of the said deed of assignment: but the warrant of the Navy Board, confirming the plaintiff boatswain of the Bucephalus, was not signed until the 26th October, 1813. It was also proved, that a boatswain so appointed is treated as such as to pay and rank, before the date of the warrant.

The defendant received two payments of prize-money under and by virtue of the said deed of assignment, to which the plaintiff had become entitled as acting boat-swain of the said ship; the first payment being 1237. 17s. 6d., and the second 80/. 11s., making altogether the sum of 2047. 8s. 6d.

The questions for the opinion of the Court were,

whether the said deed of assignment was void in law; or if not wholly void, whether the same was available to protect the defendant in the receipt of any sum of money beyond that of 100l., being the consideration money therein mentioned?-and whether the said acknowledg. ment of sums received ought to have been admitted in evidence? And the verdict was to be entered for the plaintiff, or was to stand for the defendant, as the Court should be of opinion that the plaintiff was or was not entitled to recover any thing; and if they should be of opinion that the plaintiff was entitled to recover any thing, then the verdict was to be entered for such sum as the Court should direct.

The case now came on for argument, when

Mr. Serjeant Vaughan, for the plaintiff, submitted in the first place, that the acknowledgment by the plaintiff ought not to have been received in evidence, as it amounted to an acquittance or discharge; or, at all events, it was an acknowledgment of a receipt of money to the amount of 160l., and therefore required a receipt stamp. In Jacob v. Lindsay (a), where the plaintiff entered an account in writing, of goods and cash furnished to the defendant from time to time, each page of which was authenticated by the defendant's acknowledgment in writing of the receipt of the contents; it was held that such written acknowledgment could not be given in evidence per se, in respect to the cash items amounting to above forty shillings in each page, for want of a receipt stamp ; and although there the plaintiff was deemed competent to prove that upon calling over each article to the defendant, he admitted that he had received the same, and that the witness might refresh his memory by referring to the

(a) 1 East, 460.

1823.

WELLARD

v.

Moss.

1823.

WELLARD

V.

Moss.

account;-yet that case is distinguishable from the present as there the parol acknowledgment, or admission of the defendant as to the receipt of each article, was of itself sufficient, without the production of the book. Here, however, the account alone, containing the acknowledgment at the foot, and the plaintiff's signature thereto, was the only evidence offered by the defendant; and therefore it was inadmissible, unless it were properly stamped as a receipt. And Lord Kenyon, in Jacob v. Lindsay, said (a), that " if the book had been tendered in evidence, with the defendant's signature thereto as a receipt, or if his admission had had reference to the account so signed, certainly it could not have been given in evidence; and no parol evidence could have been received of the contents of the writing." And Mr. Justice Grose observed, "the evidence was not offered as evidence of a receipt; but the evidence was of a verbal admission by the defendant, of his having had certain articles and sums of money from the plaintiff, proved, not by the signature to the account, but by the testimony of the witness to whom he made the admission." Here, however, the acknowledgment was only proved by the plaintiff's signature to the account; and as seamen are frequently exposed to impositions, the plaintiff's claim should receive a liberal construction. Secondly, with respect to the deed of assignment of the prize-money by the plaintiff, it was either void altogether, or, at all events, can only be deemed available to the defendant to the extent of 1007., being the consideration money actually paid for it. By the first prize act, viz. the 45 Geo. 3, c. 72, s. 92(b), petty officers and seamen

(a) 1 East, 462.

(b) Which, after reciting "that petty officers, seamen, mariners, and soldiers in his majesty's naval service had theretofore been in many instances defrauded of their prize and bounty monies, or large proportions thereof, in consequence of their having improvidently, and without sufficient considera

are restricted from assigning prize-money, unless it be done according to the regulations and restrictions pointed out by that section, and a form of the power of attorney to assign the same is there given; and a boatswain must be considered as a petty officer within the spirit and mean-› ing of that act. And although by the 49 Geo. 3. c. 108, s. 6. and 55 Geo. 3. c. 60, s. 33 (a), boatswains are except-> ed from falling within the description of petty officers,

tion for the same, executed powers of attorney and other instruments, by which they had transferred their interest not only in all such prize and bounty money, which, at the time of executing such powers of attorney or instruments, might have been due to them, but also all prize and bounty money to which they might thereafter become entitled; for remedy thercof, and for preventing a continuance of such frauds and impositions, it was enacted, that all shares of prize and bounty money due, and to become due, to petty officers, seamen, mariners, and soldiers, should be paid by the agent or treasurer of Greenwich Hospital, or his deputy, and the clerk of the cheque of the said hospital, or his chief clerk, to the persons entitled thereto, or persons authorised by any order to receive the same, which order should specify the name of the particular prize or prizes for distribution (should the distribution be for more than one prize); or if the capture should have been upon the land of the place or fortress out of which the prize-money should have arisen, together with the name of his majesty's ship or vessel, ships or vessels of war, by which such prize or prizes was or were taken; and should contain a full description of the person giving such order, signed by the captain and one other signing officer of the ship in which the party should be then serving; or if discharged from the service, then that such order, with such description as before mentioned, should be witnessed by the minister and churchwardens of the parish in which such party might reside; which order being admitted and paid, should remain with the agent or agents of the treasurer of Greenwich Hospital, or his deputy paying the same."

(a) Which, after reciting that " doubts had arisen as to the persons who came within the description of petty officers and others in his majesty's navy, and non-commissioned officers of marines, within the provisions of the several acts thereinbefore recited; it was enacted, that all and every part of the complement of every ship in his majesty's navy should be, and were thereby declared to be petty or inferior officers, seamen, non-commissioned officers of marines or marine, excepting such as were rated upon the books of such ships as admirals or flag officers, and their secretaries, captains, lieutenants, sub-lieutenants, masters, second masters and pilots, physicians, surgeons, assistant-surgeons, chaplains, boatswains, gunners, carpenters and pursers, field-officers of marines, captains, captain-lieutenants of marines, lieutenants, and quarter-masters of marines:" and by the 55 Gco. 3. c. 60, s. 33. the same distinction is made between petty and other officers...

1823.

WELLARD

V.

Moss.

1823.

WELLARD

t'.

Moss.

yet the plaintiff could not be considered even as a boatswain; for although he was deputed to that situation, and performed his duties as such, yet he was not legally or duly appointed until he received his confirmation by the warrant of the Navy Board of the 26th October, 1815, which was after the date of the assignment. He could only therefore be considered as a petty officer until the Admiralty had confirmed his appointment; and more particularly so, as in case of his death, his widow would not be entitled to a premium unless the warrant had been granted, whereas she would have been, had his appointment been duly confirmed by such an instrument. Even however if the plaintiff can be taken to be a warrant officer at the date of the assignment, his appointment having been subsequently confirmed, yet the assignment can only be available as against him to the extent of 100%. being the sum advanced to him by the defendant, according to the statute 55 Geo. 3. c. 60, s. 37 (a); and although that act was passed after the date of the assignment and warrant of the Navy Board, vis. on the 25th May, 1815, still in this case it might be taken to have a retrospective operation, as the two payments of prize money received by the defendant under the deed of assignment were not made until after the plaintiff had been duly appointed a boatswain.

Mr. Serjeant Pell, for the defendant, having premised

(a) By which it is enacted, that "no assignment, bargain, sale, order, or contract which should be made or given by any warrant officer, for or in respect of any prize or other money in the hands of prize agents, or paid into Greenwich Hospital, should be valid, unless such assignment should truly express the consideration money actually paid by the person or persons in whose favor such assignment, &c. was made to the person making and executing the same: and that upon every such assignment, &c. the agent or agents for prize, and the treasurer of Greenwich Hospital respectively, should only pay to the persor or persons claiming under or by virtue thereof, so much money as should appear to have been advanced and paid as such consideration money."