his state, as it appeareth by this distichon, 'Principe ab externo veniunt lethalia dona, quæ studii specie, fata necemque ferunt.' "(a)

1 Hawk. P.C., c. 22, s. 3, is an authority to the same effect, and if the entering into the service of the Queen of Portugal without the King's licence was illegal, every act subsequently done in that service was also illegal. The subsequent service falls within the precise terms of the second section of the 59 Geo. 3. c. 69., which is that if any natural-born subject shall without licence

"be employed or engaged, or shall serve in and on board any ship or vessel of war, &c."

The right of blockade is confined to the belligerent Power and its own subjects. The passage cited from Vattel has reference only to the rights of the belligerent Power. But here the belligerent Power has not seized; but the defendant seized, and as a subject of this kingdom, and more particularly as an officer in the service of His Majesty, (b) is estopped from identifying himself with the blockading Power, because he was unlawfully engaged in the service of that Power. One who justifies under another must show a lawful authority derived from him. The sheriff can only justify a seizure in execution by bringing himself properly under the authority of the execution creditor. The defendant was not lawfully the servant of the Queen of Portugal.

With respect to the condemnation of the vessel at Lisbon as lawful prize, it is true that a court of common law will not enter into a question of prize or no prize. Le Caux v. Eden, (c) Faith v. Pearson, (d) Mitchell v. Rodney, (e) and many other

authorities are to the same effect. But the law has never been carried further than this, that a court of common law has no jurisdiction, because the question of prize or no prize depends upon the law of nations, of which the courts of common law have no knowledge. But that reason does not apply to this case which turns on the municipal law of our own country. The question here is one relating to an English statute. The Supreme Tribunal of Marine at Lisbon could not take notice of our Foreign Enlistment Act, any more than a court of common law of the law of

nations. In like manner a court of com

mon law will not entertain the question whether any given act is or is not a breach

(a) See also 3 Inst. c. 84.

(b)" Napier was struck off the British Navy List on the 13th July 1833."-Greville Memoirs, 3, 9.

(c) 2 Doug. 594.

(d) 6 Taunt. 439.

(e) 2 Bro. P.C. 423.

O 61636.

of the privileges of Parliament(a); but they will decide whether or not a party is in a position to avail himself of a defence arising out of such privilege. Jay v. Topham.(b) So here, whether the capture was lawful or not, still the question remains whether the defendant is at liberty to set it up as a defence.

Then, as to the fifth plea. A violation of the law on the part of the plaintiffs cannot afford a justification for a violation of the law on the part of the defendant. The plaintiffs' property in the vessel could not be devested out of them by the forfeiture, until office found. By the statute the vessel may have been forfeited to the King, but that would not justify a private person in seizing her withont authority. In Du Bost v. Beresford, (c) Lord Ellenborough did not decide that the destruction of the picture was legal, but merely that the article had no value as a work of art, and that the plaintiff was only entitled to recover for the loss of the canvas and paint. In Stockdale v. Onwhyn, (d) the plaintiff asserted a right of property in a thing itself incapable of being a lawful object of property, viz., an immoral publication. The ship, in respect of which the plaintiff's here claim was a lawful object of property, of which the owner could not be devested by the mere commission of a misdemeanor.

May 9, 1836.-TINDAL, C.J.: The plaintiffs declare in this action against the two defendants for seizing and taking a steam vessel of the plaintiffs and converting the same to their use. The defendants sever in their pleading, but each puts upon the record substantially the same justification, to which the answers given by the replication are the same, and the same questions of law are raised thereon. It will be sufficient, therefore, to consider the case as it raised upon the pleadings with respect to the first-named defendant, Charles Napier The third special plea of the defendant Charles Napier alleges that as a servant of the Queen of Portugal, and by her command, he seized and took the steam vessel of the plaintiffs as lawful prize, and that such according to the laws of Portugal, in a proceedings were thereupon had, court of law in the kingdom of Portugal, of competent jurisdiction in that behalf; court, the said steam vessel was adjudged that afterwards, in and by the said to have been justly and lawfully taken

and was then in due course and form of law condemned as lawful prize, and as

(a) See Stockdale v. Hansard below.

(b) Cited in Burdett v. Abbot, 14 East, p. 102. (c) 2 Camp. 511.

(d) 5 B. & C. 173; 2 C. & P. 163; 7 D. & R. 625; 2 St. Tr. N.S. 988.

X

forfeited to the Queen of Portugal. In answer to this plea, the plaintiff's in their replication allege(a) certain facts, which bring the service of the defendant Charles Napier under the Queen of Portugal, upon the occasion in question, within the restrictions of the statute 59 Geo. 3. c. 69. s. 2, generally known by the name of the Foreign Enlistment Act; and to this replication the defendant demurred.

We think it is perfectly clear that, except for the facts introduced by the replication, the plea, standing alone and unanswered, would be a conclusive bar to the plaintiff's right of action. The sentence of a foreign court of competent jurisdiction, (b) condemning a neutral vessel taken in war, as prize, is binding and conclusive on all the world; and no English court of law can call in question the propriety or the grounds of such condemnation. It is sufficient to refer to the case of Hughes v. Cornelius (c) as a decisive authority on that point. It follows that after the sentence of the Court of Lisbon it cannot be controverted in this or any other English court that the steam vessel was rightly taken by the Queen of Portugal as prize, and that all the property of the plaintiff's therein became by such capture and condemnation forfeited to the Queen,

and vested in her.

But the plaintiffs contend that the replication, by the facts therein disclosed, shows that the service of the defendant Charles Napier under the Queen of Portugal, by virtue of which service alone he justifies the seizing of the steam vessel, is made illegal by an English statute, viz., the statute 59 Geo. 3. c. 69., and that such illegality of the service prevents him from making any justification under the Queen of Portugal, and renders him liable to all the damages which the plaintiff's have sustained by reason of the seizure. And whether the conclusion which the plaintiff's draw from these premises is the just conclusion or not, is the question between

(a) In 2 Bing. N.C. 795 this passage runs, "the plaintiff in his replication alleges." The

mistake is here corrected.

(b) The Flad Oyen, 1 C. Rob. 135; HaveRockwood, 8 T.R. 268; Donaldson v. Thompson, 1 Camp. 429.

lock v.

(c) Sir T. Raym. 473; Skinner, 59; 2 Show. 238. See also The Christopher, 2 C. Rob. 209; Kindersley v. Chase, 2 Park on Ins. 743, 8th edn., London, 1842; Oddy v. Bovill, 2 East, 473: Baring v. Clagett, 3 B. & P. 201; Lothian v. Henderson, 3 B. & P. 499; Baring v. Royal Exchange Assurance, 5 East, 99; Bolton v. Gladstone, 5 East, 155, aff. Cam. Scacc. 2 Taunt. 85; Dalgleish v. Hodgson, 7 Bing. 495; 5 Moo. & P. 407; Hobbs v. Henning, 17 Č.B. N.S. 791; 34 L.J. C.P. 117; 11 Jur. N.S. 223; 12 L.T. N.S. 205; 13 W.R. 431.

these parties. The seizure by the Queen of Portugal must be admitted to be justifiable; no objection can be taken against the forfeiture of the property in this vessel to the Queen, under the sentence of condemnation. The plaintiffs, therefore, in contemplation of law, have sustained no legal injury by reason of the seizure. Again, no one can dispute the right of the Queen of Portugal, to appoint in her own dominions, the defendant or any other person she may think proper to select as her officer or servant to seize a vessel which is afterwards condemned as a prize; or can deny that the relation of lord and servant de facto subsists between the Queen and the defendant Napier; for the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this country.(a) Still, however, notwithstanding the loss by seizure is such(b) that no court of law can consider it an injury, or give any redress for it, and that the service and employment of the defendant is a service and employment de facto, the plaintiffs contend they can make the servant responsible for the whole loss, only by reason of his being obnoxious to punishment in this country for having engaged in such service. No case whatever has been cited which goes the length of this proposition; the authorities referred to establishing only that where any act prohibited by the law of this country has been done the doer of such illegal act cannot claim the assistance of a

court of law in this country to enforce such act, or any benefit to be derived from it, or any contract founded upon it. To the full extent of these authorities, we entirely accede; but we cannot consider the law to be that where the act of the principal is lawful in the country where it is done, and the authority under which such act is done is complete, binding, and unquestionable there, the servant who does the act can be made responsible in the courts of this country for the consequences of such act to the same extent as if it were originally unlawful, merely by reason of a personal disability imposed by the law of this country upon him for contracting such engagement.(c) Such a construction would effect an unreasonable alteration in the situation and rights of the plaintiffs and the defendant. The plaintiff's would, without any merit on

their part, recover against the servant the value of the property to which they had lost all claim and title by law against the principal; and the defendant, instead of the measure of punishment intended to be inflicted by the statute for the transgression of the law, might be made liable to damages of an incalculable amount. Again, the only ground upon which the authority of the servant is traversable at all in an action of trespass is no more than this, to protect the person or property of a party from the officious and wanton interference of a stranger where the principal might have been willing to waive his rights. It is obvious that the full benefit of this principle is secured to the plaintiffs by allowing a traverse of the authority de facto, without permitting them to impeach it by a legal objection to its validity in another and foreign country.

And we think there is no material difference between the third and the first and second special pleas on this record. For as we hold the authority of the Queen of Portugal to be a justification of the seizure as prize, there is as little doubt but that she might direct a neutral vessel to be seized when in the act of breaking a blockade by her established, which is the substance of the first plea, or of supplying warlike stores to her enemies, which is the substance of the second. We therefore give judgment on the first three special pleas for the defendants.

As the determination on these pleas in effect decides the main question in the cause in favour of the defendants, it becomes unnecessary to consider the special pleas which are fifthly pleaded by each defendant, and to which the plaintiffs have demurred, except so far as the costs of those pleas may be concerned in the inquiry.

By the fifth plea, the defendants set up on their part as a bar to the plaintiffs' right of action certain facts and circumstances from which it appears that the plaintiffs had themselves been guilty of a violation of the statute 59 Geo. 3. c. 69., whereby the steam vessel became and was forfeited to His Majesty. Now one of the objections taken to this plea was that the defendants show no authority to seize the vessel. And we are of opinion that the plea is insufficient upon this ground. (a) No case can be cited in which a justification in trespass is made under the right

(a)" In trespass for seizing goods in the possession of the plaintiff, the defendant cannot be permitted to set up the mere right of a third person to defeat the action."-Nelson v. Cherrill, 8 Bing. 316; 1 Moore & Scott, 452. See also Haggan v. Pasley, 2 Ir. L.R. 573.

of another person, without alleging an authority from the principal, under whose right the act complained of was was com mitted. If the defendant justifies breaking a close, on the ground that it is the freehold of another, he is bound to state that he did so enter by the command and as the servant of the owner of the close: Chambers v. Donaldson.(a) So where a man justifies seizing a heriot, where the property is in the lord of the manor, he shows his authority from the lord. (b) For in these and similar cases non constat, that the party entitled would have ever insisted on his right, and there can be no reason, if he thinks proper to waive it, why a stranger should justify himself in standing in his place.(c) The case of Wilkins v. Despard (d) has been cited as an authority to show that where a ship has been forfeited by breach of the provisions of an Act of Parliament, the owner cannot main. tain trespass against the party seizing it, although the latter does not proceed to condemnation; for, as it is said by the Court, by the forfeiture the property is devested out of the owner. But the plea in that case will be found to stand clear of the objection urged against that which is now under consideration. In the case cited the plea alleges that the defendant "seized the ships as forfeited to the use of His Majesty and of himself the defendant." The defendant, therefore, was not a stranger, but had authority to seize in right of himself as to part of the ship. Here the forfeiture is given to His Majesty only; and the plea is so far from stating that the defendant was authorised by His Majesty to seize, that it does not even state that it was seized for the use of the King or even as forfeited. Upon this ground we think the judgment of the Court upon the plea fifthly pleaded by each of the defendants must be against the defendants.

Upon the whole the general judgment of the Court is for the defendants. Judgment for defendants.

MATERIALS MADE USE OF.-The arguments in the above case are compiled from all the reports cited above. The judgment is taken from 2 Bing. N.C. 781.

(a) 11 East, 65.

(b) Com. Dig. Tit. Copyhold, K. 20. Heriot service may be seized by a stranger to the use of the lord. Per Keble, 2 H. 7. 156. Keble says this arguendo, in support of a plea justifying seizure of a felon by a private person in aid of a constable. See also Y.B. 7 E. 4, pl. 5, fols. 13 and 14.

(c) See Ewer v. Jones, 9 Q.B. 623; 16 L.J. Q.B. 42; 10 Jur. 65. (d) 5 T.R. 112.

a

Major-General Claude Martin was native of France, having been born at Lyons. In 1763 he entered the service of the East India Company as a cadet, and after passing through the various intermediate grades of his profession he attained in 1793 the rank of a major-general. He never, however, received full pay for any higher rank than that of captain, with which he entered in 1766 into the service

of the Nabob Vizier of Oude, under the sanction of the British Government; and he continued in that service, occasionally commanding the troops of the Nabob Vizier, residing at Lucknow, and receiving his half pay as a captain from the East India Company, until his death on the 6th September 1800.

On the 1st of January 1800 General Martin signed and executed his will, bearing that date, in the presence of the British Resident at Lucknow, and two other persons who duly attested its execution. At that time, and at the period also of his death, he was possessed of large landed estates in the provinces of the Nabob Vizier, where the Mahomedan law is the law of the country; in the territories of the East India Company, governed by the regulations of the Governor-General in Council; in the city of Calcutta, under the jurisdiction of the Supreme Court; in the town of Chandernagore, originally a French settlement, and wherein the French law still prevails, although within the presidency of Fort William; and in France. He was also possessed of very considerable personal estate of every description, including large investments in the Government securities of the East India Company and in the

British Funds.

Annexed to the will, and also referred to therein, were certain accounts during four years, 1795, 1796, 1797, 1798, to 1st May 1799, taken from the ledgers or debts due by and to him, with his own account books of the testator, showing the valuation of the various kinds of property he possessed, both real and personal, balanced on the 30th April in the first three years, and on the 1st of May in the

last year.

This abstract and these accounts were

proved with the will.

By the first article of his will the testhe women, males, and women servants, tator, after giving their freedom to all eunuchs, and others that belonged to him, and should be in his service at the time of his death, and commending therein especially his faithful girl Boulone, or Lise, who had lived with him as his wife, after named as executors of his will, he to the especial care of the persons thereexpressed himself in these terms(a) :—

"I desire, that as soon as I am dead, that the sum of 4,00,000 sicca rupees(b) (or four lacks of rupees) be put aside from the best part of my fortune, and be placed at interest in the most secure fund, as that interest may serve to pay the donation and monthly pensions as hereafter may be seen by the recapitulation or abstract mentioned, in their several articles, as also as list of the pensions and donations I have made, and sealed and signed by me, and marked No. 1 A., in which the total of yearly and monthly pension I have made to everyone mentioned in this will and testament are; as also for other sums to be paid for once are included, amounting to sicca rupees (blank_left in the original), as that they may be a sufficient sum for the answer of all these gift, pensions, and others, I have mentioned to put aside from the best of my fortune the sum above said, for 6,00,000 sicca rupees, for to be secured in the

(a) The extracts from the will are literal, the language and orthography being preserved.

(b) A silver coin bearing the impress of the 19th year of Shah Alum (the Great Mogul then reigning). Weight 192 grs. troy, and containing 176 13 grs. pure silver. The Government of Bengal in 1793 ordered all rupees coined for the future in that Presidency to be in this form and to be the legal tender in Bengal, Bahar, and Orissa. By Act VII. of 1833 a new standard was introduced, assimilating the rupee over the rest of India, but allowing the sicca to survive as an exceptional coin in Bengal. The sicca was abolished as a coin by Act XIII. of 1836; and the universal rupee of British territory has since been the Company's rupee of 180 grs. weight and 165 grs. pure silver.-Hobson-Jobson, by Yule and Burnell, Lond. 1886.