the Thames, war was declared between Peru and Spain, and the usual proclamation was issued by Her Majesty enjoining neutrality on English subjects. At Brest the Thames was joined by a Peruvian steamram; she then proceeded alone to Madeira, where she was joined again by the same ram and another. After putting some coal on board one of the rams, she went in company with both of them to St. Vincent, signals passing between them on the way. At St. Vincent the launches were put on board the rams, and the vessel then proceeded to Pedro Bay, where the two rams arrived shortly afterwards, and the ammunition was put on board one of them. The Thames then proceeded to Rio and the two rams arrived there the next day. Two days afterwards one of them captured a Spanish brig and burnt her. The captain then announced his intention, acting under the orders of the Peruvian agent, to proceed to Callao, but the existence of war having then become notorious, the plt. refused to proceed any further in the Thames on the ground of the illegal and dangerous character of the voyage, and was left behind at Rio. Upon returning to England he brought an action for breach of the engagement under which he shipped : Held, that by the breaking out of war such a voyage as that the vessel was engaged upon became, if not illegal, at least one of extraordinary risk, and not of an ordinary character, such as was contemplated by the terms of the plt.'s engagement, and therefore that the further prosecution of it, and the failure to employ the plt. on some other ordinary voyage within the terms of his engagement, was a breach of contract: (dubitante Bramwell, B.) Semble, per Kelly, C. B., that proceeding on the voyage became illegal under the Foreign Enlistment Act (59 Geo. 3, c. 69). The first count of the declaration stated, That in the year 1866, the deft being the master of a foreign going British steamship registered in the port of London in England, to wit, a vessel called the Thames, by an agreement then made by and between the plt, and the deft, in England, to wit, the county of Middlesex, contained in a written and printed document which was made and signed by the plt. and the deft. according to the Merchant Shipping Act 1854, retained and employed the plt. to serve on board the said ship as one of her crew for the voyage, and on the terms stated in the said document as follows: The several persons whose names are hereto subscribed, and whose descriptions are contained below, and of whom twentytwo are engaged as sailors, hereby agree to serve on board the said ship in the several capacities expressed against their respective names on the voyage from London to Rio Janeiro, or any port or ports in North and South America, Northern and Southern Pacific and Atlantic Oceans, West Indies, Cape Colonies, Mediterranean, India, China, and Arabian seas, Australia, New Zealand, backwards and forwards if required. for a period not to exceed twelve months, and back to a final port of discharge in the United Kingdom or continent of Europe between the Elbe and Brest; and the said crew agree to conduct themselves in an orderly, faithful, honest, and sober manner, and to be at all times diligent in their respective duties, and to be obedient to the lawful commands of the said master, or of any person who shall lawfully succeed him, and of their superior officers, in everything relating to the said ship, and the stores and cargo thereof, whether on board, in boats, or on shore, in consideration of which services to be duly performed, the said master hereby agrees to pay to the said crew, as wages, the sums against their names respectively expressed, and to s.pply them with provisions according to the annexed scale. And the plt, and deft respectively signed the said agreement, and the capacity in which, and the wages per calendar month at which the pit was retained as aforesaid, were then respectively expressed in the said agree ment against the unme and signature of the plt. all conditions have been fulfilled necessary to entitle the plt to recover in this action in respect of the matter herein stated. Yet the deft, did not employ the plt. to serve on board the said ship according to the said agreement as aforesaid, and the plt was employed and required to serve by the deft, otherwise than according to the said agreement, and thereby the plt. lost the opportunity of earning wages, and was left at Rio de And [Ex. Janeiro, and arrested and imprisoned there, and deprived of his clothes and tools, and was impeded in obtaining employment. The second count set forth an agreement similar to that in the first, and alleged as a breach that the deft. did not employ plt. according to the said agreement, but prevented the plt. from serving on board the said ship during part of the said voyage by sailing and departing with her from Rio de Janeiro aforesaid without the plt. The third count was for falsely representing the voyage on which the ship was about to sail, and thereby inducing plt. to enter into the agreement stated in the first count. The fourth and fifth counts were in trespass and trover for the taking away and conversion of the plt.'s clothes and tools. The deft. pleaded first and secondly, to the first count, denying the promise and the breach. Thirdly, to the second count, denying the promise. Fourthly, to the second count, that he was always ready and willing to employ the plt. according to the said agreement, but the plt. absented himself from the said ship and did not at any time offer to perform his duties in the same employment, but wholly refused so to do, or to be employed as aforesaid. Fifthly, to the second count, that after the said contract and before the alleged breach, the plt. misconducted himself by remaining absent from the said ship for a longer period than that for which he received leave, and going on shore without leave, and neglecting his duties in the said ship, and failing to perform the same, whereupon the deft. discharged the plt. from his service in the said ship, which was the alleged breach. Sixthly, to the second count, that after the making of the said agreement and before any breach thereof, the plt. deserted the said ship, and thereupon the deft. rescinded the said agreement and discharged the plt. Seventhly, eighthly, and eleventhly, to the third, fourth, and fifth counts respectively, not guilty. Ninthly, to the fourth count, leave and licence. Tenthly and twelfthly, to the fourth and fifth counts, not possessed. Upon these pleas issue was joined. The trial ftook place on the 20th and 21st Feb. at Guildhall, before Kelly, C. B., when the facts appeared to be as follows: -The plt. was a mariner in the merchant service, and the deft. was the master of a steam-vessel called the Thames. The owners of the Thames, the British Colonial Steamship Company (Limited), by charter-party dated 20th Jan. 1866, agreed to let the ship to Messrs. Thomson, Bonar, and Co. for all lawful service and employment as per margin, such service not to exceed twelve calendar months; the charter provided (inter alia) that the said ship being properly equipped, &c., should proceed to such ports as might be directed by the charterers or their agent on board; and also that the said steamer being intended for the service of the Peruvian Government, if she should be burnt, captured, sunk, damaged, or driven on shore by any enemy of that Government, the charterers should pay the value of her (agreed to be 45,000.) to the owners, or make good any such damages. Upon the 25th Jan. the plt. was engaged by the deft. as one of the crew of the ship, and signed articles, the terms of which were those contained in the declaration. The plt. went on board the ship in the Victoriadocks, and sailed in her to Rio de Janeiro, where he left her, refusing to proceed farther with her, on the ground that the further prosecution of the voyage had become illegal, and would expose him to extraordinary risks not contemplated by the agreement into which he had entered. The facts with reference to the voyage are so fully set out in the judgment of the court, that it is unnecessary to mention them here. The learned judge at the trial ruled that there was no defence to the action; that the voyage on which the deft. sought to employ the plt. had become, by the breaking out of war, if not illegal, at least a voyage of a different character from that on which the plt., by his articles, had contracted to serve, and that the deft. had therefore broken the contract into which he had entered with the plt. He therefore directed the jury to find for the plt., reserving leave to the deft. to move to enter a nonsuit or a verdict for himself, on the ground that the facts did not show any breach of contract on the part of the deft. The damages given by the jury included a sum for the clothes, &c., of which the fourth and fifth counts alleged a taking and conversion, and also consequential damage in respect of the plt.'s having been imprisoned, when left at Rio, by the Peruvian authorities as a deserter, and the leave reserved included leave to move to enter the verdict for the deft. on the counts above mentioned, on the ground that there was no evidence to support them; and also to reduce the verdict, on the ground that the consequential damages were too remote. The deft.'s counsel, when making the motion referred to below, also moved for and obtained a rule nisi upon these points; but the facts and arguments with respect to that part of the case are omitted as immaterial to the present report. The Solicitor-General (with him C. Pollock, Q. C. and Bompas) now moved pursuant to the leave reserved, or for a new trial on the ground of misdirection. This voyage was perfectly legal in its inception, for the war had not then broken out. The question then arises, whether upon the declaration of war it became illegal. A voyage for the purpose of carrying contraband of war to a port of one of the belligerents is perfectly legal; it no doubt subjects the ship to the possibility of seizure by the other belligerent in the exercise of his rights: Ex parte Chavasse, re Grazebrook, 34 L. J., N. S., N. S. 305. [MARTIN, B.-The Thames was here really acting as tender to these men-of-war engaged in hostilities. KELLY, C. B.-And sailing under the orders of a Peruvian officer.] I contend that there is nothing illegal in what was done; it only subjects the vessel to the chance of seizure. Surely, if it is lawful for a neutral to carry goods contraband of war, such as ammunition, to the port of a belligerent, to be thence supplied to that belligerent's vessels of war, it is lawful to do what this vessel did. The voyage was not illegal under the Foreign Enlistment Act (59 Geo. 3, c. 69). The 7th section of that Act makes the fitting out a vessel with intent or in order that such vessel shall be employed in the service of any foreign prince, state, or potentate, penal. Now, here the Thames was fitted out in time of peace, and the inception of the voyage was legal. [BRAMWELL, B.-Is the actual existence of a war necessary to the operation of sect. 7?] It is clear the section would not apply to the case of fitting out an armed vessel and selling it to a foreign prince in time of peace; it is quite clear that that is legal: (Hobbs v. Hemming, 17 C. B., N. S., 791; 12 L. T. Rep. N. S. 205.) [KELLY, C. B.-The question is not so much whether the voyage was legal or not, as whether the extraordinary risks incidental to such a voyage were such as the plt. under his contract was bound to undergo.] The direction to the jury was based upon the illegality of the voyage. If the objects of the voyage might possibly be legal even after the commencement of hostilities-and there was, I contend, nothing to show that they were necessarily illegal-the pre [Ex. sumption ought to be in favour of their legality. It was at least a question for the jury whether the objects of the voyage were illegal. Then with respect to the increased risk, that affords no reason for the seaman's refusing to proceed if the voyage continues legal. There is nothing illegal in chartering a vessel to the Peruvian Government to carry ammunition, even in time of war. There is no evidence to show conclusively that the vessel was to engage in hostilities in concert with the Peruvian men-of-war, and though she was acting under the direction of a Peruvian officer it cannot be presumed that his orders would be illegal. Even if the increased risk entitled the plt. to refuse to serve any longer, it cannot entitle him to treat the captain's proceeding with the voyage as a breach of contract. To treat it as such would be equivalent to saying that the captain was bound to proceed to some other port; but the coal on board was the property of the Peruvian Government, and the ship was chartered to that Government. The captain was bound to continue the voyage if its purposes were, as I contend, legal. The utmost effect of the declaration of war would be to dissolve the contract and entitle the seamen to leave the ship. Cur. adv. vult. May 11.-KELLY, C. B. now delivered the judg ment of himself, MARTIN, and PIGOTT, BB.-A question of great public importance arises upon a motion made in this case by the Solicitor-General for a new trial, or to reduce the damages; and we have thought it right to consider the material facts with great attention, not by reason of any doubt entertained (at least on my part) as to the substantial merits of the case, but because it was thought possible that some question ought to have been left to the jury as to the real nature and character of the adventure, and the course actually adopted by the vessel in question as disclosed by the evidence in relation to the two steam-rams belonging to the Government, and engaged in hostilities against Spain. On Feb. 25, 1866, war was declared between Spain and Peru. On the 13th March there was a proclamation under the Foreign Enlistment Act to observe strict neutrality, and the declaration of war and the proclamation were both published in the Gazette. It is necessary that I should read the material portions of the evidence in order to make the case perfectly intelligible. The action was brought for a breach of contract in ceasing to employ the plt. as a mariner on board a ship on a voyage to any part of North or South America, or Australia, and, I think, some other parts of the world. The breach alleged was in substance that the deft. ceased to employ the plt. on any such voyage, but employed him upon another and different voyage, and that he sustained other damage. The evidence for the plt. was to this effect: "I am a mercantile mariner, and have been so since 1834. I went to the docks and saw the captain-I had sailed with him before. I asked him if he had engaged his hands. He said, 'No; he was then going about it.' I met him the next morning on board the Thames. He gave me a note to go to the shipping master and sign my articles. Nothing was said about the nature of the employment. He said probably the voyage would be about six months. 25th Jan. I went to the Sailors' Home in Wellstreet and signed articles. They were read to me. No one was with me. I went to the captain again, and he gave me a note for an advance. He gave me instructions to join the ship the next day on the 27th. On the 27th Jan. I went and joined at the Victoria-docks. She was taking in a cargo of coals and provisions. On the 31st Jan. the ship sailed and came to an anchor at Lobster Point below On the Ex.] BURTON v. PINKERTON. [Ex. Gravesend. We took in 130 casks of ammunition | I said they contained nothing about supplying Perumarked, 'Six charges for 300lb. gun, 45lb. of vian rams with ammunition and stores. I asked powder and shell.' We left the river. Two him for a certificate that the voyage was legal, and launches were taken on board in the docks. One I offered to pay him for a stamp. He said he was was a steam launch, one not. The name Indepen- not going to be bothered with me. I asked him danzia was on the launches. On the 2nd Feb. we what protection I had if I went outside the harbour left the river and proceeded to the Downs. On the and was taken by a Spanish cruiser. He said, 3rd Feb. we left the Downs and went down Channel 'Come to me when the Spaniard takes you.' I said to Portland, thence to Torbay, and from Torbay we it would be too late then. Allen and Keefe were went to Brest. On the 10th Feb. we arrived at with me. I then applied to Captain Dunne, of the Brest. We did not go into the harbour, but in a Megara, and told him what I had told the consul. wind-bound bay. I went ashore several times with He told us to go on board our ship and we should the captain. He was absent from the ship three or hear from him. I then returned to the Thames. four days. Custom-house officers and authorities Captain Dunne came on board. The captain was came on board and asked the chief mate where we ashore. He spoke to the chief mate. Captain came from and other questions. There were then Dunne asked us if we had not seen the British conthree of the men who refused to go on, and wished sul since he had seen us? I said 'No.' He said to the to speak to the consul. The men tried to paint out chief mate, 'How came you not to allow them to go the names of the launches by order of the officers. The to the British consul?" Captain Dunne said we Independanzia came to Brest shortly after we did. She should have to go in the ship, but we should have went up the port among the French men-of-war. On justice sooner or later. On the 20th April I went the 22nd Feb. we left Brest. When we got under way again to the British consul, because on the 19th a French man-of-war followed us. We lost sight April the captain called us aft-the whole of the of her at one p.m. When the French vessel was crew. He told the crew he was going to clear out lost sight of we altered our course and made sail for at Callao on a private enterprise, and he would give Madeira. On the 27th Feb. we arrived at Madeira. give us 17. per month addition to our pay. If we The harbour-master came and spoke to the deft. refused the offer that day we should not get it and asked where we came from. We said, 'From the next. We did refuse; we were called London, in twenty-eight days.' He then asked out again in the evening. The captain said it what we had come here for. The captain said he was little use going ashore to the consul, for he came here for orders. He asked, 'Have you any would tell us, as he had told us, that it was a legal sick on board?' We had a quarantine flag flying. voyage, and we were bound to go on. On the 20th They said they must put us three days in quarantine. April I got leave with all hands to go ashore. I On the 4th March the Huasca and the Independanzia went to the consul again, and also to the English arrived. We put 150 tons of coal on board the minister's. I repeated the complaint. The consul Independanzia. She lost her anchor. On the 7th told me we were bound by the articles. At the March we finished coaling about twelve o'clock, and British minister's we saw the secretary, and told then got under way with the two rams altogether. him the nature of the voyage. He was of opinion Rockets for signals were put on board the rams. that the voyage was legal, and turned us over to the We heard of the declaration of war between Peru consul. On the 21st April I was arrested by the and Spain for the first time." I should observe Brazilian police. They took and locked us up, five. here that, though that is the evidence of the plt., the of us at night. On the 28th April others of our mariner, the captain, who was afterwards called, ship were brought there and imprisoned. We said he had not actually heard of the declaration of remained imprisoned until the 2nd May. We wished war until after he had arrived at Rio. The declara- to refer to the British minister, but were not pertion did in fact take place on the 25th Feb. 1866, mitted. We sent a note to the consul, and then we and it formed the subject of a communication were released. A gentleman came from the consul, between the two departments of these Governments, certifying that we were British subjects. We were and it afterwards, within a day or two, appeared in told we might join the Brazilian army or navy, the Gazette. The evidence then goes on: "On the we were to be released. On the 2nd May, when 12th March we arrived at St. Vincent. As we went we were released, we went to look after the Thames, signals passed between the rams. There were and she was gone. I remained at Rio till the 21st, Peruvian officers on board. Borras, a Peruvian, and went to the consul, saying I was destitute, and gave orders. These were about the rate of sailing. got a certificate from the consul saying that I might The Peruvian officers were said to be passengers. embark in any ship. On the 21st May I got a We found out afterwards that they were acting passage to New York, working my way in the under the Peruvian Government. The Thames had Gertrude. On the 7th June I went from New York a bright light at the peak, and I never saw such a to London in the William Penn, on wages." Therelight before. We discharged one boat and put it on fore he got a passage from New York, by which he board the Independanzia. We put the other launch earned wages, and he reached London on the 23rd over the ship's side to the Independanzia. We took July. Then an estimate was made of 9. 14s. for on board two boats belonging to the Huasca. We wages. He claimed 201., or something of the kind, went to Pedro Bay, twelve miles south-west of for clothes which he left on board the Thames; and St. Vincent. The two rams arrived there soon after that concluded his evidence. Then he is crossus. In Pedro Bay we put on board the ram 130 examined, and he says: "I have been thirty-two cases of ammunition. On the 31st March we arrived years a sailor. The last ship was the Virago, at Rio. On the 1st April the rams arrived at Rio. from June till October. I came from Nassau On the 3rd April a Spanish brig was brought in by to Liverpool in the Caroline. I had a dispute one of the rams, and was afterwards taken out of the with the owner of the Virago, on the ground of harbour by the Peruvian launch, and as we heard the voyage being illegal. Allen was with me was burnt. The deft. said they might have given in the Thames. He said the voyage was illegal ; him some of the cordage before they burned her. On not till after we had been at Madeira. I never heard the 6th April when I saw all this I went away from him called 'Lawyer Allen.' I signed articles the the ship to an island four and a half miles from Rio 25th, and not the 29th Jan. I saw the launches with two of the crew. From there I went to Rio. taken on board." Some attempt was made to show I went to the British consul and made a complaint the plt. knew the illegal nature of the voyage. I to him. I told him I thought I had got upon an then put to the counsel for the deft. whether he illegal voyage. He said, 'Where are your articles?' meant to say that the plt. had distinct notice of the but nature of the adventure upon which this ship was to be engaged, because, if that was so, it might have the effect of making the contract altogether illegal, and then it might be held that the action was not maintainable; but the answer was (and there is no doubt that it was a true answer), that at the time when the plt. was engaged on board this ship, and the cargo was shipped in the Thames or in the dock, there having been no declaration of war before the voyage itself, any contract relating to that voyage was prima facie perfectly legal, and therefore I thought it immaterial to inquire what suspicion there might be if sooner or later this voyage which was legal in its inception became illegal. Then the evidence goes on thus: "I saw the launches taken on board. I did not make inquiries. I had no notion what sort of voyage I was going on. From the 23rd to the 29th it was not talked of the kind of voyage we were going on-I did not talk about this at all. When at Brest I did not hear the captain had been charged with a breach of quarantine. I went ashore at Rio on the 5th, because I had to make complaint about the illegality of the voyage. I did not ask for leave. The chief mate told me I had been absent without leave. The 20th was a liberty day. I went ashore to look for redress. The deft. did not tell me after I had seen the consul that I had better go back to the ship. I saw the consul; then, the next morning, the 20th, the minister's secretary; never went to the Spanish consul or minister. Some of the men told me that the Spanish minister had told them, if they would leave the ship, he would take care of them and board them. I was taken up on the 21st and not liberated till the 2nd May. The consul did not tell me that I had deserted. On the 30th April I was taken before the magistrates, and they talked Portuguese, but I heard no charge. I never signed this letter, but Keefe wrote it and put my name to it." Then he is re-examined, and he says, "When the Thames sailed from London I had no knowledge of any ammunition or warlike stores being on board her, or of the purpose of the voyage." Then several of the crew were called, who more or less confirmed him, but on any point on which the evidence might be open to doubt I have made no report, because the ground upon which I pronounce the judgment in this case may be defined by the evidence given by the deft. Capt. Pinkerton. For the defence Capt. Pinkerton, the deft., was called, and he said: "I am captain of the Thames, which belongs to the British Colonial Steamship Company. It ordinarily trades to Canada. On the 20th Jan. it was chartered for this voyage, 'for all lawful services and employments as per margin, twelve months.' The steamer was intended for the Peruvian Government, and if damaged or burnt by enemy of war they valued it at 45,000, to be paid by the charterers to the company. Burton, the plt., came to me and asked for a voyage, or rather I met him in the docks. On the 24th Jan. he signed his articles. On the 23rd Jan. he was on board in the Victoria-docks. On the 27th Jan. he was working on board. On the 31st we sailed. During the whole time they were taking coals and provisions on board. The gun carriage was taken on board about the 29th or 30th; the two launches on the 31st. At Gravesend we took on board 130 cases of powder and ammunition. Several joined at Gravesend; all the rest at the docks. When we went to Brest I went ashore to telegraph our arrival to the owners. I got into trouble about quarantine. There was no complaint of anything else. The Independanzia left London three or four days before the Thames. I made a communication to some of the crew. Allen and Fuller were there. From Brest we went to Madeira, and thence to St. Vincent and Rio. The rams went with us from Madeira. On the 31st March we [Ex. arrived at Rio. On the 5th April, ten a.m., hands came aft and wished to go ashore and see the consul, saying that the voyage was illegal. Permission was given to two, Allen and Keefe. The plt. went without leave. On the 5th and 6th April the plt. and others had leave to go to the consul. The Thames was lying at Coal Island, four miles from Rio. On the 14th April they again asked to go ashore. All wanted to go and see the consul and speak for themselves. All went and were told to go back to the ship. Thomas Hollocomb was acting consul. We met at the consul's; the cousul asked, 'What do you want now?' They said the voyage was illegal, and they wished him to look into the matter. I said my crew had come aft and wished to see him as to the illegality of the voyage. They said the ship had carried ammunition and had transhipped it to a Peruvian man-of-war, and that she had also arrived. The launch and the provisions were supplied to the Peruvian man-of-war, and that in their opinion that was a breach of neutrality, and made the voyage illegal. I told the consul my destination was Callao, and told him I did not know what I was to do at Callao, but I was acting under the order of the charterer's agent on board, Borras, the supercargo. He was a Peruvian: I did make him understand that I was to act in all respects under the direction of the rams belonging to the Peruvian Government. I had heard that a Spanish brig had been taken by the Peruvians, and was a prize. It was taken by one of the rams from the Spaniards; this might be about the 6th. This was the talk of the town, and the consul must have known it, but I did not tell him. I told the men I was going to Callao, and did not say anything about a private enterprise. They knew, and everybody knew, I was acting under orders from the rams. I told the men I would raise their wages if it was wages they wanted, but I did not say anything about 11. per month. The 20th April was a liberty day for all to go ashore; all hands went; Burton amongst the others; Burton never came back; I saw him and others that day; I tried to persuade him to come on board. On the 21st all were absent without leave, and were so for several days afterwards. On the 25th I went to the consul and complained that the men were absent without leave. On the 25th there is an entry in the log that the plt. and others had deserted. The consul indorsed that the men were charged with desertion, and that he had made inquiries, and as far as he could learn the charge was true. On the 25th April the consul told me that the plt. and others were at St. Christopher, and were paid by the Spanish Government. The consul certified that he certified an engagement with new men, twelve or thirteen. I sailed on the 28th, and then had coals on board, but no munitions of war. Borras ordered me to proceed to Maldonado Bay, in the river Plata, and there to await the arrival of the rams. In pursuance of that I sailed, and arrived at Maldonado Bay and waited till the rams arrived, four or five days afterwards. Then we went in company towards the Straits of Magellan. We knew before we left Rio that our destination was Callao. We stopped in Possession Bay. Then the rams took the coals from us. We went 100 miles farther, and then they ordered us not to proceed to the Pacific, but to go home." Then, in answer to some questions put by me, he says: "When at Brest and afterwards I knew that war was imminent between Spain and Peru. I did not learn that war had actually been declared until I had left Rio." Thus it appears upon the evidence, alike of the plt. and of the deft., that the ship took in a cargo of coals and provisions, together with 130 casks of ammunition and two launches, one of them a stean-launch, before proceeding out of the river. Ex.] BURTON v. PINKERTON. [Ex. the rams from the time when she had quitted Brest, that she would still be directed to accompany and to supply munitions of war; in fact, to be as she had been, a store ship to the two belligerent vessels. It is enough, in my opinion, that Borras had power so to employ her. If this evidence raised any question of fact, it should have been left to the jury, but it appeared to me, and I am still of opinion, that the placing of the vessel at the disposal of and under the command of Borras was in itself a breach of the contract. It is unnecessary to determine whether the employment of the vessel in the way thus proved was a violation of the 59 Geo. 3, c. 69. It is certainly against the spirit and intent of that Act of Parliament which recites that, "the engagement of His Majesty's subjects to serve in war in foreign service without His Majesty's licence (and the fitting out of vessels, &c.), may be prejudicial to and tend to endanger the peace and welfare of this kingdom." Then, by sect. 2, it is expressly enacted that, "if any natural-born subject of His Majesty shall, without such leave and licence, serve in and on board any ship or vessel used or intended to be used for any warlike purpose in the service of, or for, or under, or in aid of any foreign state, &c., or if any natural-born subject shall without such leave agree to go or shall go to any place beyond the seas with intent to serve in any warlike operation whatever, in the service of or under, or in aid of any foreign state, &c., as an officer, sailor, or mariner in any such ship or vessel, it shall be a misdemeanor; and, by sect. 9, offences committed out of the United Kingdom may be tried at Westminster. By the 7th section it is made an offence to fit out a ship to be used in must be committed within the British dominions. This ship was so fitted out in London, but before the declaration of war, and therefore the offence was incomplete. But it was actually used as a store ship after the declaration of war, and continued to be so used under the orders of Borras After touching at some places on the English coast, she came into the harbour of Brest, and was there joined by the Independanzia, one of the two rains belonging to the Peruvian Government. She then went to Madeira, where she was joined by the Independanzia and the other ram, called the Huasca, and there put 150 tons of coal on board the Independanzia. They then left Madeira in company with the two rams, and rockets for signals were put on board the rams. They next reached St. Vincent, signals passing between the rams and the Thames. At St. Vincent the second launch was put over the ship's side into the Independanzia, and two boats belonging to the Huasca were taken on board the Thames. From thence they went to Pedro Bay, twelve miles southwest of St. Vincent, the two rams arriving shortly after the Thames, and there the Thames put on board one of the rams the 130 cases of ammunition. Thence they proceeded to Rio, where they arrived on the 31st March, the two rams arriving there the following day. Two days afterwards one of the rams sailed out of Rio and captured and brought in as a prize a Spanish brig, which they afterwards took out again and burned, upon which the deft. observed that they might have given him some of the cordage. This evidence was uncontradicted on the part of the deft., the master or commander of the Thames, who was himself examined as a witness, and who further gave in evidence the charter-party of the ship, from which it appeared that she was chartered for all lawful services and employments for twelve months; that she was intended for the Peruvian Government; and that if she should be damaged or burnt by any enemy of war, she was to be valued at 45,000% to be paid by the charterers to the company. He further proved that the Indepen-aid of a belligerent as a store ship, but the offence danzia had left London three or four days before the Thames. He admitted that the plt. and the other ,seamen, after their arrival at Rio, insisted that the voyage had become illegal, and desired to go on shore; that he himself (Capt. Pinkerton) had told the consul that his destination was Callao, and that he was acting under orders of Borras, the super-after the plt. had quitted the ship and the ship cargo and agent of the Peruvian Government on board, and that it was understood that he was to act in all respects under the direction of the rams belonging to the Peruvian Government. He admitted that he knew of the capture of the Spanish brig by the Peruvians, and that it was the talk of the town and generally known. He also admitted that he had told the men he was going to Callao, and that he would raise their wages if they would go with him, though he denied that he had specified the advance of 14. per month. I thought upon this evidence that the contract with the plt. was to employ him for twelve months on board this vessel free from any other charges than such as were incidental to a voyage for ordinary commercial purposes, and that war having broken out between Peru and Spain, two states in amity with this country, it was a breach of that contract to place the vessel under the orders of a Peruvian, who was directing and causing her to act in concert with two ships of war belonging to Peru, and engaged in actual hostilities against Spain, and so exposing the crew to the danger at any moment of the loss of their liberty or of their lives. It is possible that Borras might have given no orders which would have put the ship in peril, but his orders might have been such as to expose her to an attack from a Spanish ship of war within an hour after she should have left the port of Rio, when she might have been fired into and sunk or captured, and the crew made prisoners of war. The plt. could not foresee what these orders or their consequences might be, but he might fairly infer from the mode in which the ship had been employed in aid of, and in concert with, had quitted Rio. If then it were necessary to decide the question I should hold that to serve on board a vessel used as a store ship in aid of a belligerent ship, the fitting out of which to be so used is an offence within the 7th section, is a serving on board a vessel for a warlike purpose in aid of a foreign state within the 2nd section. But if this were doubtful, I am of opinion that so to employ this vessel was a breach of that which I hold to be the contract with the plt., namely, to employ him and the rest of the crew for a specified period on board this vessel upon an ordinary commercial voyage. It is impossible not to see that by adventures like these this country has been brought to the very verge of war, first with the United States and then latterly with Spain; and I think that we ought not to permit a doubt to be entertained whether to encourage and employ the crew of a British ship in such an adventure is within the terms of a lawful contract like that which has been entered into between the deft. and the plt. I am therefore of opinion that there should be no rule in this case except as before intimated to the Solicitor-General, to reduce the damages in respect of the loss of clothes and the imprisonment of the plt. BRAMWELL, B.-I confess I am not of that opinion. For I think the rule ought to have been granted. Not that I am prepared to say that I think the Lord Chief Baron was wrong at the trial, but I am not satisfied that he was right, and I have sufficient doubt about it to make me think that, instead of its being discussed without a rule being granted, it would have been better if it had been discussed after a rule had been granted. The |