Now we do not offer any opinion upon the validity of the Inhibition; but, assuming for the present, that the Inhibition was fully justified in law, in pursuance of the Act of Parliament, and the practice of this Court, the question which arises is this-whether the Judge of the Vice-Admiralty Court, in decreeing a sale, was wilfully guilty of any disobedience of the appellate authority.

We are of opinion that it is not sufficient, for the purpose of visiting him with the penal consequences which it has been endeavoured to attach upon him, that he may have committed an error of judgment. We think it must be proved to our satisfaction, not only that there was error, but that, in addition to there being error, it was wilful error, and.proceeded from corrupt or improper motives.

Now having considered the whole of these proceedings, we have come to the conclusion that no such culpability attaches to this Judge, because we think he may have acted according to the best of his judgment, under all the circumstances of the case; he had to form an opinion as to the true effect and operation of the Inhibition that was evidently to him a difficult question to deal with; and it appearing to their lordships that there was no wilful culpability, we cannot visit him with the consequences which the owners seek to attach upon him by this application.

The determination of their lordships, therefore, is to refuse the application, but without costs.

1842-3.

BARTON

V.

FIELD.

The Winwick.

ON APPEAL FROM THE VICE-ADMIRALTY
COURT OF SIERRA LEONE.

Nov. 1842.

LIEUT. GODOLPHIN JAMES BURSLEM,

the Officers and Crew of H. M. Respondents.* Ship VIPER, and the QUEEN.

The Ship GUIANA.

28th & 29th THIS was originally a cause instituted in the ViceAdmiralty Court at Sierra Leone, on behalf of Lieutenant G. J. Burslem, the Commander, and the Officers and Crew of Her Majesty's schooner of war Viper, and our Sovereign Lady the Queen, against the said brig

The 5th Geo.
IV., c. 113,

sec. 29, enacts
that no Ap-

peals shall be

prosecuted

from any sentence of any

* Present: Lord Campbell, Sir Herbert Jenner Fust, the ViceCourt of Ad- Chancellor Knight Bruce, and the Right Hon. Dr. Lushington. miralty or

Vice-Admiralty (with the exception of the Cape of Good Hope and eastward thereof) unless an Inhibition be applied for and decreed within twelve months from the time of the decree or sentence being pronounced. By the 3rd & 4th Wm. IV., c. 41, the appellate jurisdiction given by the previous Statute to the High Court of Admiralty was vested in the Judicial Committee of the Privy Council; but which Court, from its constitution, had no jurisdiction over the Appeal until the Petition of Appeal was referred to them by the Crown.

The Appellant presented, on the 16th of July 1841, a petition of Appeal from a decree of condemnation pronounced on the 12th of August 1840, by the Vice-Admiralty Court of Sierra Leone, against a vessel engaged in the Slave Trade, contrary to the provisions of the 6th Geo. IV., c. 113. The Appeal was not referred by Her Majesty to the Judicial Committee until the 11th of August 1841, one day before the year expired, and notice of such reference was not given by the Clerk in Council until the 13th of the same month, one day after the twelve months had expired, when the Appellant applied for and obtained an Inhibition. On protest against the Appeal; Held,

1st. That the 5th Geo. IV., c. 113, was incorporated in the 3rd & 4th Wm. IV., c. 41.

2nd. That the Appellant having failed to procure, in compliance with the

or vessel Guiana, seized by Her Majesty's said ship of war on the 26th of March 1840, together with her tackle, apparel, furniture, and the goods, wares, and merchandize laden on board her, for forfeiture and condemnation and penalties; by reason of her being at the time of such seizure engaged in the Slave Trade, contrary to the provisions of Stat. 5 Geo. IV., c. 113.

Proceedings having been taken against the said vessel on the 12th of August 1840, the Acting Judge and Commissary, by his introductory decree, pronounced the said brig Guiana to have been at the time of the seizure thereof engaged in the Slave Trade, contrary to the provisions of the above Statute, and as such, subject and liable to forfeiture and condemnation; and condemned the said brig, her tackle, &c., as forfeited and pronounced that the shippers of the goods, wares, and merchandize laden on board the said brig, were liable to the penalty due by law, that is to say, double the value of the said goods, wares, and merchandize, and that the said goods, wares, and merchandize, should be held in deposit until the said penalty was paid: and on the 19th day of the same month, the said Acting Judge decreed, that the cargo should be sold, evidence having been given that the same was deteriorating in value.

In the month of October 1840, information reached the owners of the vessel that she had been condemned; but in consequence of delays in the transmission of the process, copies of the proceedings did not reach this country until the 20th of July 1841.

In the meantime, and on the 30th of June 1841, an

1842.

LOGAN

บ.

BURSLEM.

The Guiana.

29th section of the 5th Geo. IV., c. 113, an Inhibition to issue within twelve months from the sentence, was barred his Appeal; the provisions of that section being imperative, and leaving no discretion in the Court to relax the operation of the Act.

1842.

LOGAN

v.

BURSLEM.

The Guiana.

Appeal from the decree or sentence was interposed before a notary and witness by the Appellants' Proctor, on behalf of James Logan and John Moore, the owners of the said brig Guiana: as also on behalf of Manuel Francisco Topez (a Brazilian subject), the owner of the cargo.

On the 16th of July 1841, the Appeal, together with the usual petition to Her Majesty in Council, praying that the same might be referred to the Judicial Committee, was lodged in the registry of the High Court of Admiralty. This petition was laid before the Queen in Council on the 11th of August, one day before the expiration of the year from the date of the sentence or decree of condemnation, and referred by Her Majesty on the same day to the Judicial Committee.

Notice of such reference was not, however, given to the Appellants' Proctor before the 13th, the day on which the Registrar of the Court of Admiralty received intimation thereof.

In the meantime, and on several occasions subsequent to the 16th of July, when the Appeal and Petition had been lodged, the Appellants' Proctor attended in the registry of the Court of Admiralty and Appeals, and requested the Registrar to attend before some Surrogate to the Judicial Committee of the Privy Council, in order that the usual Inhibition might be decreed ; but the Registrar declined to do so, on the ground that, until the Appeal and Petition had been answered, it was incompetent for any Surrogate to decree an Inhibition, or to do any act in furtherance of the Appeal.

In consequence of this refusal on the part of the Registrar, and no notice having been given of the reference by Her Majesty in Council until the 13th of August, the Inhibition could not be decreed until more than twelve months had elapsed from the date of the Decree.

By the 29th section of the 5th Geo. IV., c. 113, it is provided, "that no appeals shall be prosecuted from any decree or sentence of any Court of Admiralty or "Vice-Admiralty, touching any of the matters pro"vided for in this Act, unless the Inhibition shall be applied for and decreed within twelve months from the "time when such decree or sentence was pronounced: "except when such decree or sentence shall be passed "in any Vice-Admiralty Court at the Cape of Good Hope, or to the eastward thereof, in which case 'eighteen months shall be allowed for the prosecu"tion of the said appeal."

By 3 & 4 Wm. IV., c. 41, s. 2, " all appeals or appli"cations in Prize Suits, and in all other suits or proceed"ings in the Court of Admiralty, or Vice-Admiralty "Courts, or any other Court in the plantations in

America, and other His Majesty's dominions, or else"where abroad, which may now, by virtue of any "Law, Statute, Commission, or Usage, be made to the High Court of Admiralty in England, or to the "Lords Commissioner in Prize Cases, shall be made to 'His Majesty in Council, and not to the said High "Court of Admiralty in England, or to such Commis"sioners as aforesaid; and such appeals shall be made "in the same manner and form, and within such time, wherein such appeal might, if this Act had not "been passed, have been made to the said High Court "of Admiralty or to the Lords Commissioners in "Prize Cases respectively; and all Laws or Statutes "now in force with respect to any such appeals or 'applications shall apply to any appeals to be made "in pursuance of this Act to His Majesty in Council."

By sec. 20, it is enacted, "That all appeals to His "Majesty in Council shall be made within such times,

1842.

LOGAN

v.

BURSLEM.

The Guiana.