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cases of this description, where the nature of the service requires such an appointment; for by the statute 49 Geo. 3. c. 108, s. 16, it is enacted, “ that where any petty officer, (which the plaintiff was,) or seaman serving on board any ship shall be promoted by any commander in chief while such ship shall be abroad, to be a lieutenant, master, surgeon, boatswain, &c. &c. the captain or commanding officer of such ship shall make out a ticket for the wages or pay due to such petty officer or seaman, certifying that the person therein named had been actually promoted to the station therein mentioned.” A distinction, however, may be taken under this statute as to whether the power to promote a petty officer to the situation of boatswain must not be vested in the commander in chief alone, and executed in a particular manner, as pointed out by that section, as to making out the tickets for the pay of such officer. If, therefore, it appeared as a fact in the case, that the plaintiff had received his appointment from the commander in chief, there would be an end of the question, as such commander would have a direct and distinct power to appoint ; and the only doubt then would be, whether the confirmation by the Navy Board was necessary to ratify such an appointment under the terms of the statute. It is stated, that the plaintiff was appointed acting boatswain of the ship; that must be taken to refer to the original appointment; but as it is not expressed by whom such appointment was made, still as it appears that the plaintiff was originally a petty officer, and that he ceased to be such when he acted as boatswain, it must be presumed that he was legally appointed, and more particularly so, as nothing appears to the contrary. Putting it, however, on the warrant of the Navy Board, which has never been before the Court, and which, according to the case, must have been signed by the commissioners of that Board, still it appears that it merely confirmed the
appointment of the plaintiff as acting boatswain. It does not seem to me, however, necessary to look at that warrant, or examine with scrutiny how the original appointment took place, as the warrant would not confirm an appointment which was void or illegal in itself. The case of Donelly v. Popham is materially distinguishable from the present, as there the commodore had no authority to make the appointment; and Lord Chief Justice Mansfield said (a), “ Had the Lords of the Admiralty even confirmed the appointment of Captain Downman to the command of the ship, though this might have operated on the rights of the parties from the time of such confirınation; yet it could not have been attended with a retrospective effect." Here, however, we must assume, that the power of appointment was legally exercised in the first instance; if not, the warrant of confirmation would be inoperative, and of no effect. Considering, therefore, all the circumstances of this case, as well as the provisions of the statutes, and particularly that of the 49 Geo. 3, as to appointments made on foreign stations, I am of opinion that the plaintiff, having been promoted from the rank of a petty officer to that of boatswain at the time he made the assignment, and in which character he was legally entitled to transfer his right to prize-money, the verdict for the defendant must stand.
Mr. Justice Park.-Two questions have been presented to the consideration of the Court. As to the necessity of a receipt stamp, the case of Jacob v. Lindsay is not only an authority in point, but the circumstances there were far stronger than in the present, to shew that such a stamp could not be required. There the defendant had written on each page of the book containing the
(a) 1 Taunt. 5.
account, that " he had received the contents." Here, however, at the foot of the account the plaintiff merely acknowledged that it was correct; and if the argument contended for were to prevail, if a person acknowledges that he has received twelve different sums at different times on the settlement of an account, there must be a separate receipt stamp for each of those items, which would be productive of the greatest inconvenience. The second question, however, embraces a point of more importance; but it appears clear from the statement in the case, that the plaintiff was an acting boatswain at the time of the assignment, and consequently above the rank of a petty officer ; and it has been admitted in the argument, that if he was not an officer of the latter description, he would not fall within the provisions of the dif-, ferent statutes, which prohibit petty officers and seamen from making an assignment of, or transferring their prizemoney. The case of Donelly v. Popham is not adverse to the principle contended for by my brother Pell; and it has been truly and most satisfactorily distinguished from the present, as there the person conferring the appointment, bad no power to appoint: and although it has been said, that it does not appear in this case that the plaintiff was legally appointed, still it is stated that he was appointed acting boatswain ; and it must therefore be presumed that he was duly and legally appointed; and more particularly so, as the statute 49 Geo. 3, provides for appointments abroad when vacancies occur by the death of officers, either in battle or otherwise, in which cases, when vacancies occur, it is immediately necessary to fill them up. Even if the power of appointment rested solely with the commander-in-chief, yet in the case of a single ship, the captain may be considered as such commander: and here, it appears that the ship in question was on a foreign station from 1809 until the time of the plaintiff's executing the assignment; and there must
have been an acting boatswain on board during all that' time; and there were no means of applying to the Admiralty for such an appointment in the first instance. I fully coincide with my Lord Chief Justice, that if we had the warrant of the Navy Board before us, we are not bound to give it a retrospective operation ; but where a previous appointment is stated, it must be assumed that the commissioners of the Navy Board would not have confirmed such an appointment, unless it had been duly and regularly made in the first instance. The word confirmed must be taken to mean a ratification of something before done. The case of Pill v. Taylor appears to me to be extremely important, as it goes the length of deciding, that although the original commander had been re-appointed, and that too with a retrospective effect, as his new commission bore the same date as his former one; yet as he was not in actual command at the time a capture was made, which happened to be during his suspension, that the actual commander acting at the time was entitled to share as such in the distribution of the prize-money. Here, too, the plaintiff himself has raised the objection, after he had made the assignment to the defendant in his character of boatswain; and I am therefore of opinion that he is not entitled to recover.
Mr. Justice BURROUGH.-With respect to the first point, as to the necessity of a receipt stamp, I think the case of Jacob v. Lindsay is decisive. I have a perfect recollection of that case; and the book containing the account must have been produced at the trial, as the witness was allowed to refresh his memory by referring to it. The second question appears to me to be equally clear.—The plaintiff had filled the situation of boatswain's mate, in which character he was to be considered as a petty officer, from which he was promoted to the
rank of acting boatswain. Literally speaking, therefore, he was a boatswain in every sense of the word. A boatswain is a necessary and efficient officer in a ship, and his duties are altogether different from those of a boatswain's mate. By the statute 49 Geo. 3, he may be promoted or appointed by the commander-in-chief when the ship is on a foreign station ; and in the case of a single ship, the captain may appoint, as he may be considered as the commander-in-chief of such ship. It must be therefore taken, that the plaintiff was duly appointed in the first instance. Who are to be the judges of such an appointment? They appear to be the commissioners of the Navy Board, who, on the return of the ship, confirm or ratify the appointment, thereby adopting that which had been done before. The Court, therefore, must presume that the appointment was originally made in compliance with the statute 49 Geo. 3; and as the plaintiff had filled the situation of acting boatswain long before he made the assignment, he must be considered to have been legally acting as such for the purpose of making a transfer of his prize-money to the defendant.
Judgment for the defendant.
CAPP v. Johnson. Monday,
Feb. 3d. The statute
Mr Serjeant Taddy applied for a rule nisi, that the pro3 Geo. 1, c. 15, thonotary might review his taxation in this cause; on the which gives the sheriff pound- ground that he had allowed the sheriff more than he was where the debt entitled to receive for executing a writ of habere facias posis due to the
sessionem or seisinam, under an extent, as well as the poundCrown, applies only to cases between party and party; and where the sheriff was put to extra trouble and expense at the request of the prosecutor, in executing a writ of habere facias passessionem under an extent, he is entitled to such expenses on the taxation of costs.