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1805.

HARVET against COOKE.

commander's orders all the ships attached to that station, even before any particular ship absent on a detached service within such command shall have received any actual order from the commander. Capt. Milne must be presumed then to bave acted lawfully, since his acts bave been confirmed both by his commander in chief and by the Admiralty. It is not, therefore, competent to him to set up a right to retain the whole share of prize, on the ground that he was acting in disobedience to his commander's orders, and not subject to his control. No man can set up his own avowed wrongful act, in order to give himself a right which he would not otherwise bave. Case of the Waaksamheid (a), of the Robert (b), and of the Forsigheid (c). He also referred to a subsequent proclamation, regulating, as he said, the distribution of prize, according to the principle contended for by him. But the Court said they could not take notice of such proclamation issued after the capture in question.

R, Carr, coutra. All prize was crigioally the right of the King, jure corone ; but now the stat. 33 Geo. 3, c. 66, vests it in the captors, subject to be distributed as the King's proclamation shall direct; the plaiotiff, therefore, can only claim by the terms of such proclamation, which must be construed like other instruments (d). It is requisite by that proclamation, in order to confer the 1-8th share on a fagofficer, not merely that he should be invested with the command, but that he should either have been present at the capture, or directing or assisting in it: the sisare was meant as a reward, either lor actual service or advice. The plaintiff was not present at, nor can he by any construction of the words be said to have directed or assisted in the capture, because it expressly appears that Capt. Milne acted without orders; and that without having done so, the prize could not have been taken. The necessity of the case justified Capt. Milne in the opinion of the Admiralty; but all the docu, ments shew that he acted on his own personal responsibility in what he did, and not by the direction, or under the orders of any superior officer. (He here commented on the several letters, slating throughout that Capt. M. acted without

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(a) , Rob. Adm. Rep. T. (6) Ib. 194. (c) Ib. 311. id) Lord Nelson v. Tacker, 2 Bos. et Pull. 262. 4 East, 250.

orders

1805.

orders in proceeding with the convoy to England; and then

referred to the cases which are collected in Johnstone v, MarHARVEY against getson (b), and in Lord Nelson v. Tucker, in C. B. (c); none COOKE,

of which, it was admitted by the Court, bore against him on the present point.] All the cases are either where the disa pute was between two' flag-officers, which of the two should retain money which was sought to be taken out of his hands by the other, or where, as in the case of the St. Anne (d),

ibe prize was clearly taken under cruizing orders originally [ 232 ] received from the Aag-officer ; but the only question was,

Whether the latter bad not abdicated his conunand by retorning home before the prize was taken, and never after. wards resuming the command ? though that case was considerably shaken in Lord Nelson v. Tucker. He then referred to the case of the Orion (e), which had then lately been deter. mined before the Privy Counsel upon 2: peal, Lord Eļlenborough, C. J. presiding. There Capt. Sir Thomas Williams of the Unicorn, one of Admiral Kingsmill's squadron on the

Irish station, received orders from him to return to Ports. mouth to refit, and then rejoin him with ali expedition. But before his return, he received orders from the Admiralty to take a short range in the Channel for the protection of the homeward-bound trade ; after which, he was to return again under bis former command; and while in the execution of the Admiralty orders, he took a prize; and held by Sir W. Scott below, which judgment was affirmed at the Cockpit, that Admiral Kingsmill was not entitled to share, on the ground that Capt. Williams was not acting by the direction or assistance of his admiral at the time; though Sir W. Scott supposed that there mightbe aconnexion of subjec. tion to Admiral Kingsmill remaining. [Lord Ellenborough, C. J. The ground of our decision was, that there was a new departure, as it were, from Capt. W's original command by the special and paramount order of the Admiralty, ape pointing a certain deviation from his original orders; after wbich, he was to return again under the command of Ad. miral Kingsmill: and the prize happened to be taken during that deviation. The consequence would have been the same

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1805,

HARVEY against CoolE.

if the Admiralty had given him new orders to go back in the very track directed by Admiral Kingsmill. That was the opinion not only of myself, but of the Master of the Rolls, Sir Wm. Wynne, and Sir Wm. Scott.] In that case, however, Sir Wm. Scott said, That if a prize were taken by a ship of the squadron, even under a disobedience of orders, it would be difficult to sustain the flag-officer's rigbt to share in it wider the words of the proclamation. He concluded by saying, that at any rate the plaintiff could only be en. titled to 1-3d, if any, of the share in question. But the Court said, it was not necessary to argue that point at prea sent,

Dauncey, in reply, distinguished this from the case of the Orion, because Capt. Williams was there acting under another command than that of his flag-officer; whereas here, Capt. M referred to the plaintiff for every thing which he did. Acting under the control and authority of a flagofficer, is all that is meant by his directing a capture. ll is necessarily implied, though na particular direction were given to that purpose; and it would be of very dangerous example if an inferior officer were permitted to gain any greater advantage by acting without orders in any case, than if he had done, the same thing in the ordinary course of his duty.

Lord ELLENBOROUGH, C. J. The question is, Whether the plaintiff can be considered as a flag-officer entitled to share in the prize under the King's proclamation ?-to do which, he must have been either “ actually on board at the taking of the prize, or directing or assisting therein." The only question is, Whether the facts of this case constitute a directing or assisting in the capture ? Capt. Milne's situaLion was, That being one of the squadron on the Leeward Island station, he bad received orders from Admiral Christian, then the commander in chief on that station, to lie uff Demerara for the protection of that colony; and, it appears, that op to the time of the prize in question being taken, Capt. Milne never received any other order from any conpetent authority dispensing with the literal performance of that order; but, at the request of the governor and merchants of that colony, who were disappointed of tbeir ex. pected convoy, he though it necessary for his Majesty's ser

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sice, upon his own responsibility, to convoy the trade to the
place of rendezvous at St. Kitt's. He proceeded, therefore,
in disobedience; but, as it appears from the subsequent apo
probation of the Admiralty, in venial disobedience to his or-
ders : and after having prosecuted his voyage thus far, as
he himself supposed in disobedience of orders, he afterwards
ventured on a further disobedience, under what he though
an urgent necessity. He still paused, however, andlinger-
ed for some time longer, in expectation of another ship to
relieve him ; but being frustrated in that expectation, yet
still desirous of doing that which was most for the King's
service, he at length copvoyed the feet home; in the course
of which, the capture was made. Now assuming that the
relation of captain and superior flag-officer was constituted
between the parties for many purposes, yet as the plaintiff
who succeeded Admiral Christian can be said to have been
directing in or privy to such orders only as bis predecessor
issued, and as Capt. Milne acted in disobedience to such
orders, insomuch eren that if he had complied with his ore
ders, the capture in question could never have been made,
in no sense can it be said that the plaintiff was directing or
assisting in the capture; but Capt. Milne must be consider-
ed altogether as having acted upon his own responsibility.
He so considered it himself at u
He so considered it himself at the time; for he wrote to his
admiral to represent his conduct to the Admiralty on the
justificatory grounds wbich had induced him so to act, and
to hope that he would excuse him to that Board: and the
admiral in so stating it says, at the same time, that he had
acted without his orders. Where then is the assistance or
direction of the flag-officer which is to entitle him to share ?
These words of the proclamation are, as Sir Wm. Scott once
observed, the title deeds of flag-officers, and the only rule
for regulating our judgment. I would not, therefore, put
any construction upon them which would distort their fair
meaning, but will abide by the plain letter of the proclama-
tion which common men may understand. We have nothing
to guide us but the words of it; and there is nothing which
should induce us to distort the plaip meauing of those words,
Capt. Milne did not act in obedience, but in disobedience to
Adm. Christian's orders; which, in the result, il appears that
the Admiralty have approved of. However, there is no occa-

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sion for us to consider whether he be entitled to the prize ; 1805. but is the absence of any direction or assistance of the plain- . tiff in the capture, we are bound to say that he is not entitled against 10 any share.

Cooks. GROSE, J. The real question is not, Whether Capt. Milne thought he was acting wrong i- or Whether he acted in disobedience to the commands of one or other of the commanders on the station ? - but Whether he were acting under any orders at all? Now, the plaintiff himself says in his lettes to the Admiralty, that Capt. Milne was not acting under his orders; and the latter, sensible of not having acted under the plaintiff's orders, writes to him to represent his conduct favourably to the Admiralty on that presumption, and wrote to the Admiralty an account of all his proceedings; ( 236 ) intreating the favour which so venial an offence might warrant. When all parties, therefore, concur in considering that Capt. Milne was not acting under the plaintiff's orders in what he did, it is impossible to say that the plaintiff was directing or assisting in the capture, which are the words of the proclamation upon which the plaintiff's claim must be founded, if at all; the construction of which proclamation ought to be according to the plain import of the words. On this ground, I am clearly of opinion that the plaintiff cannot recover.

LAWRENCE, J. The argument most in favour of the plaintiff's claim was, that Capt. Milne, even after his depar, ture, continued under the command of the plaintiff: but no authority bas been quoted to shew that. By the terins of the proclamation, it is expressly provided, That no flag. officer shall be entitled to share the 1-8th granted to a flag. officer, unless he shall be “ actually on board at the taking of any prize, or directing or assisting therein.” That brings the case to this short question, Whether the conduct or situation of the plaintiff can in any way entitle him to be cons sidered as directing or assisting in the capture in question ? Capt. Milne was under the orders of Admiral Christian to continue off Demerara for the protection of it. Upon the plaintiff's succeeding to the chief coinmand, the orders issued by his predecessor are to be considered as his orders. But under a necessity which he thought sufficient, Capt. Milne, without any order or authority, or even approbation Vol. VI.

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