that the case of Jacob v. Lindsay was precisely in point as to the admissibility of the account and acknowledgment by the plaintiff in evidence, was interrupted by the Court, and requested to confine his argument as to the effect and validity of the assignment.-It must be admitted, that if the plaintiff falls within the denomination of a petty officer or ordinary seaman, or cannot be considered as a boatswain or warrant officer at the time of the assignment, he could not legally assign his prize money under that instrument; but as he had been previously appointed an acting boatswain, and so continued until and at the time of the execution of the deed, he had a clear right to make such a transfer. Still, however, it has been said, that he was not a warrant officer until the warrant of the Navy Board confirmed him as such. But at all events he was a boatswain, aud therefore not a petty officer, as from the time of his first appointment as such, he ranked as a warrant officer on board the ship. The recital in the 45 Geo. 3. c. 72, s. 92, is confined to petty officers and seamen, and consequently cannot affect the plaintiff, whether he was a warrant officer or not at the time of the assignment, for he was at all events an acting boatswain: and by the 49 Geo. 3. c. 108, s. 6. boatswains are classed among those who are rated as superior officers, and therefore cannot be considered as petty or inferior officers. From the moment the plaintiff was appointed an acting boatswain, he continued as such until such appointment was confirmed; and previous to his promotion, it appears that he was a boatswain's mate when he might be considered as a petty officer. Although in Donelly v. Sir Home Popham (a) it was held, that an appointment of a captain by a commodore, although afterwards ratified by the Lords of the Admiralty, or the King in council, would not entitle such captain to share (a) 1 Taunt. 1. 1823. WELLARD V. Moss. 1823. WELLARD V. Moss. as a flag officer in any prizes taken before the date of such ratification; yet there the commodore had no legal authority to appoint in the first instance; whilst here, the 49 Geo. 3. c. 108, s. 16 (a), empowers commanders in chief on foreign stations to promote and appoint boatswains; and by the 49 Geo. 3. c. 123, s. 4. prize lists are required to be signed by the captain, lieutenant, master, and purser, or the person or persons acting as such. Here therefore the plaintiff being abroad, and in a single ship, he must be taken to have been duly and legally appointed, although it is not stated by whom such appointment was made, and more particularly so, as it was afterwards confirmed by the warrant of the Navy Board. The captain, therefore, would be a competent commander for this purpose. The case of Pill v. Taylor (b) is in point, (a) By which it was enacted, that " from and after the passing of that act, when and so often as any petty officer or seaman serving on board any ship or vessel in the service of his Majesty, should be promoted by any commander in chief while such ship or vessel should be abroad, to be either a lieutenant, sub-lieutenant, master, second master, surgeon, assistant-surgeon, boatswain, gunner, carpenter, purser, or a commissioned officer of marines, that then, and in either of such events, the captain or commanding officer of the · ship or vessel in which the petty officer or seamen, &c. should be serving at the time of such promotion, should at the same time make out a ticket for the wages or pay due to such petty officer or seaman, certifying thereon that the person therein named had been actually promoted to the station therein mentioned, and deliver such ticket to him, which ticket should be called a promotion ticket,' and should be made out in the same form, and consist of the same particulars, as were prescribed by an act of parliament passed in the 32 Geo. 3. in regard to foreign remove tickets, and should be paid in the same manner as the said foreign remove tickets were therein required to be paid and that it should be lawful for every petty officer or seaman who should obtain such promotion ticket, to sell and transfer the same by indors. ment thereof and that the said promotion tickets so sold and transferred should be paid to the indorsee thereof in the manner prescribed for the payment of the said foreign remove tickets in and by the said act of 32 Geo. 3; and that the signature for the receipt of the person to whom such promotion ticket should have been made payable by indorsement, should be a sufficient voucher to the treasurer of the navy for the payment of the wages due on such promotion ticket." (b) 11 East, 414. where one, who at the time of a prize taken by a custom house cutter bore the commission of mate, but was acting commander on board, under an order from the commissioners, communicated by letter to the collector of the port to which the cutter belonged, and by him communicated by letter to such mate, was held to be entitled to the commander's share of prize under the King's warrant of the 26th November, 1803, referring to a former warrant of the 4th July in that year, which speaks generally of the share to be given to the commander, officers, and crew, as a reward for their service; and this, although the former commander, whose commission as such had before been withdrawn and cancelled by order of the commissioners, on some supposed misconduct, was afterwards restored, and a new commission granted to him, bearing the same date as his former commission, which was before the prize was taken; and Lord Ellenborough, in delivering the judgment of the Court, there said (a), "as the plaintiff was an actually appointed and then serving custom-house commander, under every responsibility belonging to that character, at the time of making the captures in question; and as in making such captures he performed that specific service, for which the moiety of the prize proceeds is, according to the declared purpose of his Majesty's warrant, meant to be a reward; and as we cannot find any ground of objection to his title, from the mere want of a commission in form under the hands and seal of the commissioners of the customs, sufficient to countervail his claim as founded on the above circumstances; we are of opinion that such claim ought to prevail, and that the judgment on this special verdict ought to be for the plaintiff." It may be said, that that case related to a question of prize only; but it established the principle, that where (a) 11 East, 427. 1823. WELLARD ". Moss. 1823. WELLARD บ. Moss. a person Mr. Serjeant Vaughan, in reply.—It does not appear from any statement in the case whether the plaintiff was appointed the acting boatswain by the captain, or any other officer qualified to confer such an appointment; nor is it even found that such appointment was in writing. The warrant of the Navy Board, therefore, not only confirmed him in that situation, but must be taken to be the original appointment, without having any retrospective operation. In Pill v. Taylor the appointment was made under regulations wholly different from an appointment by the Navy Board. There too the former commander was restored, and consequently stood in the same situation as he filled before the prize was taken. Here the promotion tickets could only be granted by the commander in chief, but the plaintiff was thereby merely deputed to act as boatswain on board the ship; but he was not fully qualified to act as such until he had received the final appointment of the Navy Board. At all events, the assignment can only be available for the defendant to the amount of the consideration paid for it, and the verdict must be entered accordingly. Lord Chief Justice DALLAS.-If this case were defectively stated, it would be necessary for the Court to send it back to be re-stated, but that ought not to be done unnecessarily; and unless such misstatement be so material as to prevent us from disposing of the question intended to be reserved for our consideration, we ought now to decide it. As to whether the acknow ledgment of the plaintiff ought to have been received in evidence at the trial, I referred to the case of Jacob v. Lindsay, and my brother Vaughan, as Counsel for the plaintiff, admitted that it was in point, and undistinguishable from the present; and the question as to the inadmissibility of the account was then abandoned, and no further evidence offered as to the acknowledgment; and the only point reserved for the Court, was as to the effect and operation of the deed of assignment, with reference to the several statutes concerning the distribution and appropriation of prize money. The question then now is, was the plaintiff a boatswain or not at the time of the execution of that instrument? It has been admitted, that he was then acting as such, and that he had been actually promoted to that situation; still, however, it has been contended, that he did not in fact become boatswain until he received his appointment or confirmation under the warrant of the Navy Board. Whether he was so or not, depends on the sense and substance of the thing, and the construction of the several statutes as applicable to the subject. The first question then is, was he actually promoted or not. He originally acted in the capacity of boatswain's mate, and as such ranked as a petty officer; but he ceased to be so when he became an acting boatswain. Was he then legally appointed to that rank? For this purpose, it becomes necessary to consider the circumstances attending his promotion or appointment in the first instance. It took place while the ship was on a foreign station; and although it was within the jurisdiction, yet it was not within the reach of the Admiralty, so that the Navy Board could not have made the appointment in the first instance. The law therefore has provided for 1823. WELLARD 27. Moss. |