at the same time they ordered that the plaintiff should proceed to trial immediately, and that if a verdict should be had against him, or a nonsuit, the money should be paid out immediately after the trial was ended. RULE ABSOLUTE. 1804. PINTO versus HUTCHINSON. ! WILLIS versus the COMMISSIONERS of APPEAL in A court of prize has original jurisdiction over the prize and the proceeds thereof, and may decree interest against any agent or other person in whose hands it may be, if he made interest or profit thereof, as part of the res, and, independently of the authority over prize agents given, by the several statutes, to the courts of admiralty. If such agents have not made interest, they should rest their defence upon that point in the prize court below, and this court will not grant prohibition. WILLIS versus SIGNERS of ON a rule Nisi for a prohibition to the commissioners of appeal in prize causes to prohibit them from proceeding the COMMIS further against Willis, it appeared that an order had been made in a prize cause by the said commissioners upon him, Prize Causes. as prize agent, to pay interest on the proceeds of a prize which had come to his hands. The capture was made in June 1798, by Captain West, of his M. S. the Tourterelle, and the prize condemned at Jamaica by the viceadmiralty court there, and inter alia, it was ordered that the prize should be sold by the agents of the captors, and the produce be distributed among them. From this sentence there was an appeal by the claimants, which being allowed, the agent of the captors, B. Waterhouse, entered into the usual security "to account for and pay over the net proceeds of the goods and specie condemned as the court should thereafter direct, in case the sentence 1804. WILLIS versus the COMMIS APPEAL in Prize Causes. should be reversed." That the captors and their agent proceeded regularly in the course of this appeal, that the goods condemned were sold on the 20th of September, SIONERS of 1798, pursuant to the statute, and produced 4,5521. 1s. 7d. net. The commissioners on the appeal reversed the original decree of condemnation, and decreed the cargo to be restored, or the value to be paid to the claimant, and condemned the captors, in interest, from the sale of the cargo. On the 4th of August, 1802, a monition was issued by the commissioners against J. Willis and B. Waterhouse, as the agents of the captor, to "shew cause why they should not pay interest on the said proceeds.” On the 14th of July, 1805, Willis appeared and shewed cause, and, in his suggestion, alleged inter alia, that he was not party to the suit and appeal, and was not connected therewith otherwise than as being the general partner in trade with Waterhouse, and that the goods became vested immediately from the condemnation, &c. in the captors, and that Waterhouse, having collected the proceeds on the sale, continued to hold the same "as an agent or banker usually holds money in his custody, liable to be called for at any moment, and ixed with other monies then also entrusted to him." That no judicial order having been made by any court for laying it out at interest, or otherwise making profit of it, no special investment was made thereof by the captors, or Waterhouse, or Willis, and no specific profit could be set forth or ascertained to be derived therefrom; and although as soon as the decree of restitution was made known to Waterhouse, he paid the proceeds to his majesty's proctor, &c. and Willis never had any power, custody, controul, or management over the proceeds or any part thereof but they remained with Waterhouse in Jamaica, and Willis insisted upon and offered to verify the same before the commissioners; yet they refused to adit the same, and decreed interest to be paid to Willis from th t me of the sale, &c. The suggestion insisted also, that the commissioners had not jurisdiction, i GIBBS and STEVEN shewed cause, and contended that the court of appeal had jurisdiction at common law in rem, and ght decree interest on the proceeds in whosever hands they might be found, and that it must be taken after sentence, that the court proceeded rightly upon evidence of interest being made, and insisted that the authority of the court was not confined by the prize acts33 Geo. III. c. 66, which had been cited when the rule was obtained. ERSKINE, PARK, and RICHARDSON, in support of the suggestion, contended that though it might be admitted that interest ought to be given against the captors where interest had been made; the court of appeals here had proceeded against one who was not properly before them. That under the prize acts, 33 Gro. III. s. 32, the courts of admiralty have only jurisdiction as to the net proceeds, which shall be deemed the full value; and that clause enacts, that "the parties appellate, and their securities shall not be answerable for the value beyond the amount of such proceeds, unless the sale be fraudulent or without due care;" and in the 28th section security is required from the parties to restore the ship or effects, or full value thereof. That interest here could neither be decreed on the ground of punishment for misconduct, since none was proved or suggested, nor as arising out of any contract, that being not only out of the jurisdiction of the court, but impossible from the situation of the parties, the appellants and Willis, between whom there could be no privity. They also referred to the 48 Geo. III. c. 160, s. 50 and 62, a statute subsequent to this transaction, which requires agents to give security in 50001. for due performance of their trusts, and gives the court power to assign the agents or other persons into whose hands the proceeds should come, at the prayer of either party, to bring in the net proceeds, deducting enough to pay the expences of the appeal, which should be paid into the bank of England, for the use of the cause, or be advanced upon securities as the parties might agree; which shews 1804, WILLIS versus the COMMIS- that the framer of the act thought the court had no power over the interest in the hands of the agents previous thereto. Lord ELLEN BOROUGH, C. J. "This prohibition is applied for on the supposed ground of a want of jurisdiction to decree interest as against the prize agents. It is clear the court has a right to make a decree in rem upon the proceeds of the thing captured, either against the captor or any other person into whose hands they come. And it was agreed that the court may give interest in the case of the captors; but it is said that it cannot be done as against the agents, because they are liable on their security only, for the value of the net proceeds; and even against the captors, it is given only by way of punishment for misconduct. But the question is not here upon considering it as a punishment; in which case I agree that there should have been some proceedings in panam, but it is in consequence of the agent having made a profit of the original fund, that he is made answerable for that profit as well for the res or original fund. Arguing from the practice in courts of law, this is done every day. It is said, however, that there is no evidence of this profit being made. Then this is merely a question of jurisdiction, and we must give credit to the commissioners of the court of appeals for doing that which is right, upon having had sufficient evidence. If it has never been done before, and it is a new proceeding, it is really time, that having jurisdiction over the res, they should decree the accessory or interest along with it. Upon principle, it is an enormous incongruity that the captors, who have done nothing to make them liable, except in having made the capture, should be condemned in interest as well as principal, and the agents who have made the actual profit by the possession of it, during a long time, should be liable only for the bare proceeds of the sale. I repeat that we must give credit to the court of admiralty appeal for having done this upon evidence of the parties' having made interest, and it comes at last to this question only Whether interest is to be considered as part of the res, of which restitution is to be decreed ?" GROSE, J. concurred in thinking the interest must be considered as part of the proceeds at the time when this order was made, and that its being in the hands of the agent was sufficient to give the court jurisdiction over him. LAWRENCE, J. "Supposing that the prize agent were not originally liable at common law, then it would be a question upon the several acts of parliament; but this does not arise out of the statutes, but out of the general law and authority of the admiralty court, the interest being a part of the proceeds. The 32d section of 33 Geo. III. c. 66, has been cited to shew that he cannot be liable beyond the value at the time of the sale. But I take it, that only means that the party shall only be liable fo far considering it as principal. In short that if the thing should be fairly sold, he should not at that time be liable for more than the net proceeds. But it does not mean that if afterwards he makes more of it, he shall not be liable to the full extent. In Smart v. Wolfe,* BULLER, J. said that if the party had not the proceeds in his hands, he should have pleaded that below. That might have been done also here with respect to the interest. But they do not say they have not made interest of it; on the contrary, they say that when the money is deposited in the hands of the agent, he is only liable as a banker. This is only a negative pregnant, and it is not material whether they have made profit in a regular way as interest, but whether they have made any profit or not. Whatever it be, it is an accretion to the proceeds, which is equally liable to the decrce as the original thing. If they had not made a profit, the agent might have put his defence upon that issue. I do not consider it as de 3 Term Rep. 323. 1804. WILLIS tersus the COMMIS SIONERS of Prize Causes. APPEAL in |