
    Scollay vers. Dunn.
    An Hostage sent by the Matter for the Ransom of a Ship taken by the Enemy cannot maintain Admiralty Process in Personam against the Owners for refusing to pay the Money for his Liberation. Oliver, J., dissentiente.
    
    DUNN brought a Libel in the Admiralty against Scollay, for that he was a Mate on board a Vessell of Scollay’s, which was taken, and ransomed by the Mailer, and Dunn went as an Hostage. He was long Prisoner, and at last released by the Money raised by some of his Friends, and now returned to Bolton. Libels against Scollay and others, Owners of the Vessell. A Prohibition was granted, and the present Question was, whether the Prohibition stand or a Consultation ordered; The Point was, whether the Process in the Admiralty against the Owners’ Persons was good. ()
    1763.
    No Appeal lies to the King in Council from a Decision of this Court granting a Prohibition to the Admiralty in a Cause wherein the Matter in Controversy is less than £300.
    
      
      Mr. Auchmuty for the Jurisdiction.
    
    The first being taken upon the High Seas, Fails arising afterwards in Consequence in the Body are within the Jurisdiction of the Court of Admiralty. Matters may make Contracts that bind the Owners. Molloy, B. 2, C. 1, § 10; Ch. 2, §§ 14 & 16. Ib. B. 2, Ch. 2, § 2. Hardres, 183, Sparks vs. Stafford. In Salkeld the Case is not so well reported as the same in Mod. Rep. ’Tis unnecessary to set forth Order to redeem; as the Mailer may justify throwing over Goods in Case of a Storm to save a greater Loss, so may he redeem, as otherwise the Whole would be lost. 2 Ld., Raym. 931, Tranter vs. Watson. As for the Case of Johnson vs. Shippin in Salkeld, that the Matter by his Contracts cannot make the Owners liable, 6 Mod. 79 is the same Case, and not so reported, besides there the Contract appeared to have been made at Land; as for the Vessell’s being lost, ’tis of no Avail—the Owners must be bound instantly or not at all; if the Mailer has a Right to bind the Owners by his Contract, they are bound, and the Contract cannot be rescinded but by the Parties, and not depend upon such a Contingency as the Arrival of the Vessell.
    
      Mr. Gridley.
    
    If the Admiralty has Jurisdiction of the Principal, it has of the Incidents; if of the Thing, it has of the Person; as in the Case of Damage done by one Ship against another. Molloy, B. 2, C. 2, p. 2.
    
      Thacher.
    
    Whether the Owners must answer in their Persons for the Ad of the Master at Sea, of which they were utterly unknowing, is the Question; I take it not the Owners personally, for the Thing itself is bound. Every Ransom is a new Purchase, and if the Owners are liable in this Case, they would be liable if the Master had contraded with the Captors for another Ship, and sent an Hostage as a Pawn.
    
      Ch. Justice.
    
    It differs from a new Purchase, for a new Purchase from an Enemy is void; ’tis a Redemption, a Saving it from being the Enemy’s Property.
    
      Thacher.
    
    If the Vessell be liable for the Ransom, and the Master may retain her for the Ransom Money, then the can’t remain so absolutely the Owner’s Property as the was before the Capture. 2 Ld. Raym. 932, Tranter vs. Watson.
    
    
      Ch. Justice.
    
    The Question seems to me to be, whether the Contract of the Master upon the High Sea is the Contract of the Owner; and whether, if it is, there is any Instance of Suit in the Admiralty against the Persons of the Owners.
    
      Otis.
    
    The very Idea of Hypothecation is that the Master may bind the Owners, so far as that Interest of theirs goes, with what he is interested. Molloy, 15, 2, Ch. 11, § 11.
    
      It is now settled that Owners shall not be liable for the Barratry of the Master further than the Ship and Freight. 7 G. 2.
    
    The Power of the Master is confined to the Ship and Cargo. Holt’s Rep’ts, 48. Viner, Tit. Court of Admiralty. The Case of Hardres is consistent with the above Rule.
    
      Gridley.
    
    There are some Things though transacted upon the High Sea are not of a Maritime Nature, are not within the Jurisdiction of the Court of Admiralty. Things of a Maritime Nature transacted at Sea are undoubtedly within its Jurisdiction. So there are some Things of a Maritime Nature, though not transacted upon the High Seas, that are within the Jurisdiction of the Admiralty; such are Wages of Seamen. There is Nothing that Owners are not liable for, which is necessary for the Support of the Voyage; it is no Argument that because the Vessell is liable, the Owners are not also; Vessell, Master, and Owners are all liable for Wages. Viner, Tit. Hypoth. 329, bot.
    
      Otis.
    
    This is Nothing but Hypoth. Viner, Tit. Mariner, 236; Tit. Master of a Ship, 348.
    
      
      (1) The writ of prohibition is addressed “to Chambers Russell Esq., Judge of our Court of Vice-Admiralty, Charles Paxton Esq., Marshal, Andrew Belcher Esq., Register, and all the officers of laid Court.” The libel is alleged to have set forth as follows: “That the libellant was mate of the brigantine Peggy belonging to John Scollay and Thomas Eletcher, and Isaac Freeman was master of her, and that the was taken on the high seas as prize by a private French ship of war called the Entreprenante, belonging to Monlieur Boutellier at Nantes, and that the said Isaac ransomed her and her cargo for 5000 livres, to be paid in fix months, and that the said John, at the said Isaac’s request and direction, became hostage for securing the payment, and was by Peter Thibaut, the French captain of said ship, carried to Nantes,” &c., “ and that the libellant was finally obliged to pay the sum of £213 10s. of his own money to obtain his liberty.” The petition further alleged that “the brigantine was not then here, and that the said Court of Admiralty could not award any process against her, and that the libellant did not allege that the ever came to the petitioners’ possession, or that they ever agreed to the said contract of ransom, but that the design of the libellant was to make the petitioners’ persons and ellates liable for the default of the master, whereof they were wholly unknowing.” After reciting the petition at length, the writ concludes as follows:
      “We therefore willing to maintain the Laws and Rights of our Judi“catories and Courts of Record, and being unwilling our liege people “with delays to hurt, Command and firmly Enjoin you that you meddle “not further in the said Plea or Cause, nor molest or cause to be molested “the said John Scollay and Thomas Fletcher or either of them in the “Cause aforesaid in the said Court of Vice Admiralty neither attempt or “presume to attempt anything more therein: Untill our said Justices have “advised and consulted therein at our Superiour Court of Judicature “Court of Aslize, and general Goal Delivery to be holden at Boston, “within and for our County of Suffolk on the third Tuesday of Feb“ruary instant, when and where you the said Chambers Russell and the “said John Dunn or any other persons may be present, if you or they “please to show forth and maintain if you or they can, that the aforesaid “Plea or Cause is cognizable in the said Court of Vice Admiralty.
      “ Witness, Thomas Hutchinson Esq. at Bolton this twelfth day of “February in the third Year of our Reign Annoque Domini 1763.
      “ Nath’l Hatch, Cler.”
    
   Mr. Justice Oliver

delivered his Opinion in Favour of the Jurisdiction of the Admiralty.

Justice Lynde.

I take the Affair of Ransom to be a Matter upon Sea, and therefore if the Libel was on the Ship or Cargo, I should hold it good; but as it is not, I cannot but be for the Prohibition standing.

Chief Justice.

Ransom as far as it respects Master and Hostage maritime, so far as Owner and Master does not appear to be a Contradi upon the High Seas. None of the Authorities maintain the Jurisdiction in this Case; and where it is doubtfull, I think ’tis a Rule that common Jurisdiction ought to be maintained, and that the Admiralty Jurisdiction ought to be made plain and clear, which I think is not the Case now.

Prohibition stands. ()

Mr. Gridley then claimed an Appeal to the King and Council: Reason of Government requires that they should have Power of final Judgment in Cases of Importance; at Home, in Case of Ejectione Firmœ on a Lease, Appeal lies.

Auchmuty. This is a Matter that deserves Appeal. Vaughan Rep. 290, 402. That Writs of Error lie in all inferiour Dominions, lb. 418. Admiralty Jurisdiction is expressly excepted from our Charter; () and if no Appeal lies in this Case, it seems to me that Exception is of no Value. 1 Peere Wms. 330, Christian vs. Corren.

Mr. Thacher. The last Clause of the Charter relative to this Matter of Appeals seems evidently explanatory of the first, () the Matter in Difference only is what is to be considered in giving Jurisdiction, and not the Suggestion of Damages.

Otis. It appears to me that by the plain Construction of the Words of the Charter, the Matter in Difference must necessarily be £300. Courts have constantly denied Appeals where there has has been no Judgment for more than that Sum; this has been the contemporaneous Exposition of it.

Gridley. The Charter should be liberally construed in Favour of Appeals. I hold, this Court, by the Clauses in our Charter relative to this Matter, is to judge of the Limitations of Appeals. “ In all Matters deserving the same,” are the Words upon which my Opinion is founded. It seems to be settled that the Subject has a Right in all Causes to appeal; therefore even the King cannot abridge it. “ All Matters deserving the same ” ought to have a liberal Construction in Favour of the Subject. “We think it necessary that our Subjects should have Liberty of Appeal to us in all Cases that may deserve the same.” The Construction, the Gentlemen on the other Side would give, seems to be providing Appeals only for the Defendant; upon their Principles, a Demurrer being to the Declaration, and Judgment against the Plaintiff, how can he ever appeal?

Justice Oliver.

I take the first Clause in the Charter relating to Appeals to be only introductory to the second, and that there can be no Appeal where the Matter in Difference is less than £6300; and upon that second Clause I am against granting an Appeal in this Case.

Justice Cushing.

I take, the second Clause is explanatory, and so I am against it.

Justice Lynde.

With Regard to the first Clause, it appears to me to be only introductory, and therefore on that I am of the same Opinion; as to the second I am doubtfull, but as I am in general against Appeals, I am against it in this Case.

Chief Justice. First, whether the Subject Matter comes within the Clause of the Charter relative to Appeals, as it is an Affair begun in the Admiralty and brought here only by Prohibition; and for this we must look into the Charter, which entirely reserves and excepts it, and ’tis by a subsequent Act we have any Right to issue Prohibitions to it; ()

and if we have any Right to judge, I think it is the same as if the Matter came originally before this Court. Under the old Colony Charter, there was no Mention of Appeals; this was Objection against that Charter. One while in the Quo Warranto, that Clause in the new Charter was looked upon as a great Priviledge; () had it stood without any Clause, all Causes would have been appealable : I take it therefore to be a Priviledge in our Charter; “ all Causes which deserve it,” is explained to be above £300, but should it be admitted to be within the Discretion of the Court to grant Appeals, whether less or more, I should be against it, in Favour of Priviledge. As for this Case, whether it exceeds £6300 or no, there is the Difficulty. I am considering the Allegations, &c., in Favour of Appeal. () 
      
      (2) There cannot be much doubt that the contract between the owner and the hostage who pawns himself for the ransom, is maritime, and within admiralty jurisdiction. See the cases cited above; also 3 Doug. 166; 1 Ld. Raym. 22. The conclusion arrived at by Mr. Justice Lynde is, that although the contract be maritime, yet that only the remedy in rem can be sought in the admiralty. The opposite doctrine may now be considered as established in this country, “ is indeed,” as says Mr. Justice Sprague, (21 Law Rep. 603,) “anything as to admiralty jurisdiction can now be deemed settled.” See Andrews v. Wall, 3 How. 573, Story, J.—“Over maritime contracts the admiralty possesses a clear and established jurisdiction capable of being enforced in personam as well as in rem." New Jersey Steam Navigation Co. v. Merchant's Bank, 6 How. 392, Nelson, J. — “ If the cause is a maritime cause, subject to admiralty cognizance, jurisdiction is complete over the person as well as over the ship; it cannot be confined to one of the remedies on the contract, when the contradi itself is within its cognizance.” Also De Lovio v. Boit, 2 Gallis. 462 ; Clerke’s Praxis, Tit. 1. But that it was once so confined to one remedy in some cases by the English law, see the dissenting opinion of Mr. Justice Johnson in Allegre v. Ramsay, 12 Wheat. 614. The resolutions of 1632 gave the admiralty jurisdiction in rem, but not in personam, over contracts for “ building or mending, saving or necessary victualling of a ship.” And Mr. Justice Johnson, ub. sup., contends that the only instance of admiralty jurisdiction in personam upon contracts was for seamen’s wages, which was allowed on the principle of communis 
        
        error facit jus. But see 3 Burr. 1740, where Dunning, arguendo, “ admitted that actions had been brought in the admiralty by the hostage against the owners who refused to ransom him.” Also 5 Rob. 104, where it is stated that in suits for ransom on the part of the enemy, “ proceedings were always carried on against the owner in the name of the hostage suing for his liberty.” Whether the claim of the hostage against the owners is in the nature of salvage, and therefore dependent on the safe arrival of the vessel, or whether, as argued here, the owners are bound instantly by the act of redeeming her from her present peril—quœre. A recapture of a ship from the enemy or from pirates is salvage. The Trelawney, 4 Rob. 227. And where the possession has been parted with for the benefit of the owner, proceedings in personam may be sustained. The Hope, 3 Rob. 216.
     
      
      (3) “ Provided always, and it is hereby declared, that nothing herein shall extend or be taken to erect or grant or allow the exercite of any admiral court, jurisdiction, power or authority, but that the same shall be, and is hereby reserved to us and our successors, and shall from time to time be erected, granted and exercited, by virtue of commissions to be issued under the Great Seal of England, or under the seal of the high admiral, or the commissioners for executing the office of high admiral of England.” Province Charter, Anc. Chart. 36.
     
      
      (4) “ And whereas we judge it necessary that all our subjects should have liberty to appeal to us, our heirs and successors, in cases that may deserve the same, we do by these presents ordain, that in case either party shall not rest satisfied with the judgment or sentence of any judicatories or courts within our said province or territory, in any personal action, wherein the matter in difference doth exceed the value of three hundred pounds sterling, that then he or they may appeal to us, our heirs and successors, in our or their privy council.” Province Charter, Anc. Chart. 32.
     
      
      (5) The Province Law of 11 W. 3, which gave the Superior Court general jurisdiction “ as fully and amply to all intents and purposes whatsoever as the Courts of King’s Bench, Common Pleas and Exchequer within his Majesty’s Kingdom of England, have or ought to have.” Anc. Chart. 331. “ The rights of the courts of common law within the Province of the Massachusetts to restrain the excedes of the Admiralty Jurisdiction, are not derived from their charter, but from subsequent laws of the Province, confirmed afterwards by the Crown.” Dummer’s Defence of the New England Charters, (Boston ed. 1745,) 26.
     
      
      (6) Under the Colony Charter no appeals to England were allowed. See the remonstrance of the legislature to the Long Parliament—“ We have not admitted appeals to your authority, being assured they cannot Hand with the liberty and power granted us by our charter.” 1 Bancroft’s Hist. U. S. 441. Afterwards in the reign of Charles 2, the colony “ joined issue with the King by denying the right of appeal.” 2 lb. 74. And this was one of the principal causes of the subsequent issuing of the Quo Warranto, by which the charter sell.
     
      
      
        (7) The appeal was not granted.
      On a subsequent page in the MS. is the following memorandum : “ Dunn v. Scollay, Case of Hostage & Ransom: Authorities in Favour of the Plaintiff were Molloy, (Old Edit.) 205 § 10, 212 § 14, 213 § 14. Molloy, (New Edit. 1744,) 358, 237, 8; 244, 5. 2 L’d Raymond, 931; Lord Holt’s Opinion relied on; Sea Laws, 128. In Favour of the Defendant were 2 Chancery Cases, 239 ; 1 Salk. 35; 3 Bacon, 592, 595.
     