BARTON s. FIELD [1842-44] IV NOORE, 213
the ship and cargo, and the master, officers, and crew: against the Appel~~nts , the
owners of the steam vessel GmeliEe.
The cause was heard on the 11th of ~ e c e ~ b e r 1842, before the Judge of the
Admiralty Court, who pronounced for the damage, and condemned the owners of
the GaaeEEe and the Bail in costs.
An appeal having been asserted, and the usual proceedings taken in this Court,
the cause was assigned for hearing on the 1st of June 1843.
The Proctor for the Appellants having, however, exhibited a proxy, and declared
his partics, qroceeded no further In the appeal.
Dr. P ~ i ~ ~ l ~ i ~ o r ~ ~ ~ o ~ e ~ their lordships t remit the cause, and condemn the
Appellants in costs,
Which wtz$ ordered accordingly.
[Mews' Dig. tit. COLOKY ; 1x1. APPEALS TO P B I ~ C O O ~ ~ I L ; 6. ~ ~ ~ c ~ ~ c e , 11. By s. 18
of tho Judicature Act, 1873 (36 and 31 Vict. e. 66f, and s. 4 (3) of the ~ ~ ~ d ~ c a t u r ~
Act, 1891 (54 and 55 Vfct. G. 53 ) , tlke j u r ~ s d ~ c t ~ o n of the Judicial Conim~ttee
upon any judgment 01" order of the Righ Court of Admiralty was, except as to
Prim, transferred t o the Court of Appestl.3
In the matter of the Petition of MILES BARTON, and Others, against BhRROM
FIELD.
The Ship WIHTTKCK [Feb. 14, 1842," and XOY. 21 and 28, 2843 .t].
This Court will not visit a Judge of an inferior Court wi th the penal con-
sequences of an attachment for ~ o n t u ~ a c y and contempt, for disregarding an
I ~ l i i b i t ~ o n u less such disobedience i s wilful, and proceeded from improper
motives [4 Moo. P.G. 2831.
An Inhibition to the Judge of the ViceAdmiralty Court a t Gibraltar, in'nibiq ing
him from doing anything prejudicial to the parties Appellant pending ltii
appeal, i s not to be d i s r e ~ a r d e ~ at his discretion, a ~ t h o u g ~ he may c< nsider
that lie is acting for the benefit of dl parties.
Decree for a sale of a vessel condemned, after appeal asserted and ~ n ~ i ~ ~ t i o ~ i
served personally on the Judge, held not such a contempt, under the eircuni-
stances of the cam, as to entitle the ox-iicrs to an atta-chment against the
Judge for costs and damages incurred thereby.
This was an application for an attachment against Barrcn Field, Esquire, the
late Judge of the V ~ c e ~ d ~ i r ~ l t y Court at ~ ~ ~ r a ~ t a r , for c o n t u ~ & c y and contempt,
in decreeing the sale of the ship ~ ~ r ~ w ~ c ~ , her tackle, etc., after an ~ n h ~ ~ ~ i t i o n had
issued under &e Seal of the Judicial ~ o i n ~ i t t e e of the Privy Council, ~ u ~ ~ ~ ~ t ~ ~ ~ ~
him, pending the appeal, from doing or atteinpting anything to the prejudice of
the parties Appellants.$
[274] By an Order in Council bearing date the 13th. of July 1840 (ante [Moo.
P.C.], vcl. ii. p. 34)) reversing the sentence of the Court bebw, it was, arnong othcr
things, ordered that the A p p e ~ ~ a ~ t ~ (the owners of the ship ~ ~ ~ w ~ c ~ ~ '' be a% liberty
* Presennt : Lord B r o u ~ h a ~ , Lord ampb bell, Mi*. Justice Erskine, and the Right
Hoa. Dr. Lttshington. -+ Present, : Lord C o t % ~ n g h a ~ , fiord C a ~ ~ p ~ e l ~ , t.he Vice-Chancellor Knight Bruce,
and the Righz Eon. Dr. Lushington.
$ The proceedings which gave rise to this application are reported ante, vof.
ii. [&ffoo. P.C.j p. 19, on the appeal from the sente~ce of the Y i c ~ A d ~ i r a l t y Court
of Gibraltar.
301
_ l l l ~ - I ~ - . ~ -I___
to proceed as they may be advised, against any person or persons whonz it may
concern, for further compensation for any loss they may have sustained, or ex-
penses they may have incurred, by reason of the sale of the said ship, under the
autl~ority of the Court below, after service of the rI~hibition under seal of this Court."
On the 14th of May 1341," &files Barton presented a petition on behalf of him-
self and the other owners of the ship Winwick, praying their lordships to decree a
monition against the Judge of the Vice-Admiralty Court at Gibraltar, to appear and
show cause why he should not pay the costs and damages incurred by the illegal
sale of the ship. No affidavits were filed in support of this application to show
that any damage Bad been incurred by the sale of the ship.
DT. Nicholt for the ~ o t i o ~ - ~ e l i e d on the Rules and R ~ u I a t i o ~ ~ s regarding Ap-
peals from the ViceAdmiralty Courts abroad, made in pursuaiice of 2 Will. IT-.,
c. 5l,f and cited the following [2751 authorities: The case of the dlarshalsea (10
Coke Itep. 76 a.); Diet. per Lord Stoweli (I Add. 21); The Ship ~ ~ ~ i ~ Z ~ ~ ~ (6 Rob.
Adm. Rep. 310): The B a v e (18th June 1796); The ~ ~ o r ~ ~ ~ k ~ i Watnsknpen (27th
Kiareh 1809. N&e.-In the cases of the Bove and the Roq-dwku ~ ~ ~ f ~ ~ ~ ~ ~ ~ e ~ , which
mere produced by the Registrar of the Court, a monition vas issued against the
Judge, Eegistrar, and Marshal of the ~ice-Ad~niralty Court, to bring in the sums
they Itad respectively received as costs, and which had been disalloived by subsequent
decree and taxlztion).
The Queen's Advocate (Sir John Dodson) contra.
Mr. Baron Parke.-There ought to have been an affidavit as Lo damages. The
application ought to have been for a rule to show [276] cause why an a ~ ~ a c ~ ~ n l e ~ ~ t
should not issue, and the present petition must be dismissed. Tlzeir ~ordships, how-
ever, think that lease should be given Lcr amend the petition, and to nlalre a fresh
application.
On the 14th of February 1842,$ a further petition was presented by Miles it3arton)
and the other owtiers of the ship, praying for :I, monition against the ~ ~ T o r s h i ~ f u l
Barroil Field, the 5udge of the ~ d ~ ~ ~ ~ r a l t y Court. of Gibraltar, to appear and show
++ Present : RET. Baron Parke, Sir Herbert Senner, the Right Eon. Dr. Lushington,
and Mr. Justice Littledale.
$ These Rules being printed only for the purpose o€ dis t r ibu t io~ to the Vice-
Admiralty Courts, and not generally accessible, are here inserted.
'' All appeals from decrees of the Vice-Admiralty Courts are t o be asserted by a
party in the suit, within fifteen days after the date of the delcoreo, which is to be
done by the Proctor declaring tlie same in Court, and a minute thereof is to be
entered in the Assigna~ion Rook; and tlie party must also g im bail within fifteen
days from the assertion of the appeal, in ihe sum of S100 sterling, to answer the
costs of such appeal.
'' In all cases bowever in which an appeal is asserted, except respecting slaves,
the Judge may proceed to carry his sentence into execution, provided the party in
whose favour the decree h a been made give bail to abide the event of the appeal,
by two sureties, in the amount of the value of the property o r subject in dispute,
together with the further sum of ;E100 sterling, to answer costs in the event of the
same being awarded by the Superior Court,
'' The party appealing having complied with these Regulations, is then tot cause
the Judge and Registrar to be served with an inhibition from the Nigh Court of
Admiralty, restraining them from further proceeding in the cause, and also with
a monition to transmit the process.
" This process will consist of a fair copy of the proceedings under sesf of the
~ ~ i c ~ - A d ~ i r a l t ~ Court, to be made and signed by the Registrar, at. the expense of
the pasty ordering the same, ahicli is to be t r a n s ~ i ~ t e d to the Superior Court, pur-
suant to the monition.
" The proceeds, if in Court or in the hands af any individual, must, on a special
~ ~ o n i t i o ~ for that purpose being. served, be remitted to tlie Registrar of the Bigb
Court of A d ~ i r a I ~ y , or Court of Appeal."
$ Present: Lord Brougham, Lord Campbell, Rlr, Justice Erskine, arid the Right
Ron. Dr. Lushington.
_-_-I __ -_I "~
308
BARTON v. FIELD [1842-43] xv IYI001tE, 277
cause why he should not be attached for contumacy and contenipt for dmreeing thO
sale of the ship ~ ~ ~ ~ ~ c ~ , after having been persondly served with the Inhibition
of the J u d ~ c ~ a ~ C o i ~ ~ i t t e 0 of the Privg Council, inh i~ i t ing him from doing any act;
in the said cause. This niottioa was supported by tlie affidavits of Wobert CotesNort~~,
and others, from which it appeared that the alleged damages, occasioned by the sa10
of the ship, anie~inted to about 2-1000.
Mr. S. Martin in support of the Petition.
The Queen’s Advocate for Mr. Barron Field, the Judge of the Vice-Admiralty
Court of Gibraltar.
Lord Ca~pbell.-The question is, whether an a ~ t a c ~ ~ n t is tst issue against the
Judge,-whetlier the Judge of the ~ i c ~ A d ~ i r a ~ t y Court sold the Teasel to tha pre-
judice of the party ; the sale being in violation of the order of this Court. Their Lord-
ships think there is good ground for granting a rule t5 &ON cause why he @771
shouId not be attached for decreeing saie after the Inhibition. The Judge mu&
deliver his Act on Petition, the first session of next term.
The Act on Petition was a f ~ r w ~ r d s brought; in OD behalf of Mr. Barron Field,
the asserter oP an appeal ; and the proceedings tlierein, after setting for th the circum-
stances of the cendernnation of the vessel, proceeded to state that on the 8th of
February 1839, an affidavit of Thomas Smith of Gibraltar, a ship-builder, was filed,
as to tho p e r ~ s h a ~ l ~ state and condition of the said vessei, and wherein he deposed that
he had examined the said vessel, and was of opinion, that since he had appraised the
said vessel in the month of January 1838, she had deteriorated in value 2000 dollars,
the natural effect of the lapse of time, and exposure to the weather ; and that be was
of opinion that a f ~ r t h e r exposure to tbe w ~ ~ t ~ ~ e r , during the; then ensuing s ~ n ~ ~ r ,
would very considerably decrease her value, the more so as she was not then in so good
a condition to resist the effects of the weather as when he last examined her. That
a motion was hereupon made in the said ~ i c ~ A d n ~ ~ r a l ~ y Court, on the part of the
Crown and seizor, to decree the vessel to be sold ; whereupon the said Barron Field,
the Judge aforesaid, and aeting as such, baving first heard Advocates and Proctors
on both sides, did (for the reasons contained in the said affidavit, and in consideratiou
of the constant expense of two s h i p - ~ ~ p e r s ton preserve the said vessel, in addition to
the incidental expense of occasional salvage assistance which had been incurred, and
which were likely to recur with tho then ~ p ~ r 5 a c h ~ r i ~ equinoctial gales, which renders
the port of Gibraltar very dangerous in certain winds,) decree a co~i-[27$~-n~iss~on t u
issue for the sale of the said vessel. That, in pronouncing suck decree, the said
Barron Field never contemplated or intended any act in contravention of the In-
hibition so as aforesaid served upon hiin, and considered (as the fact was) that he was
not doing or attenipting a~iything to the prcljudice of the parties Appella~t, o r their
said cause of appeal, but that in directing the vessel to b0 sold, he was conferring a
benefit on whornsoewr might thereafter be entitIed to the proceeds arising from t h s
sale thereof. The Act* then set forth the particulars of the sale, and the circun~tance
of one of the owners’ brothers, a partner in a house a t Liverpool, being the purchaser,
as showing collusion between tbe parties, and the subsequent proceedings taken in this
Court, and insisted that the said Barron Field, the Judge of the said Court, in decree-
ing the sale of the .vessel, acted with perfect good faith both towards the owners and
seizors of thc vessel, having been called U p n to exercise his judicial functions in B
case of necessity and emergency, requiring an imazediatts remedy to protwt ail
parties in the cause from further loss; and he tiumbly submitted that, by t,hs tenor
of the Inhibition served upon him, he was not precluded from exercising in such a
case as this, a fair and equitable discretion when judicially applied to by either of the
parties in the cause.
The owners replied to this Act on Petition, traversing and denyizg tlke facts and
inferences therein drawn, and denyiiig cofIusion in the purchase of tho vessel, and
praying and insisting that the Judge might be condenined in all costs and dnmagea
c o n s o q u ~ ~ t on suck sale, the amount thereof t o be referred to the Begistrar and &fer-
chants, to ascertain and report. Both parties [279] filed affidavits in support of the
various allegations and statements contained in the Act and BepIp.
The Quem’s Adyocat%, (Sir John Dodson,) Sir Thomas Wilde, and Nr. Edmrrnd
F. Moore, for Nr. Barson Field.
The sale of the vessel was warranted and requisite under the circumstancas of
309
IV MOORE, 280 BARTON v. FIELD [1842-431
the case, and the decree for the same was not an act in contempt of the Inhibition
of this Court. It was never intended by this Court that the Judge of the Court below
should be proceeded against by penal process for the exercise of his discretion. Even
if he were, under the oircumstances, liable to such a proceeding, he is not solely liable,
and ought not to be proceeded against alone ; the party promoting the office of the
Judge is the responsible party in the suit, and if any one is liable for the supposed
damage occasioned by the sale of the vessel, he is, and ought a t least to have been
joined with the Judge. If, under
such circumstances, a Judge was personally liable, he could never safely t ry a cause of
forfeiture without taking a bond of indemnity from the party promoting his office:
that is the practice in the United States. Ross v. Rittenhouse (2 Dallas’s Rep. 160).
No such practice prevails here. In the cases of theDozJe [1 Add. 211 and the iVordiska
Wunskapeia [4 Moo. P.C. 2751, the object was to obtain the proceeds, and the monition
was to bring them in. T’here was no breach of the Inhibition. No contenipt of this
Court has been committed by the Judge below. The language of the Inhibition is,
that the parties inhibited are not to do o r attempt anything [280] to the prejudice
of the Appellants : here a positive benefit has been done. It was shown that the ship
had deteriorated in value, had incurred salvage expenses, was becoming every day
less valuable, and was likely a t the approaching equinoctial gales to be entirely
destroyed. Was the Judge of the Vice-Admiralty Court at Gibraltar, in whose custody
the vessel was, to direct the parties to apply to this Court for an order for sale, and
t o wait the return. of such order? The mischief anticipated might have happened
before a meeting of this Court took place ; and who could so properly examine the
evidence of the ship’s deterioration as the Judge of the Court below?-it was his
peculiar duty. The circumstances presented a case of necessity and emergency, and
left him no alternative but the exercise of a discretionary authority; for that he is not
liable to an attachment. If the sale had been ordered before service of the Inhibition,
no question of its propriety could be raised, but the proceeds, the res, are secured,
and that satisfies the intent of the Inhibition. The offence committed by the Judge,
if any, is an Attentat , but there are no articles exhibited against Mr. Barron Field
for an Attentut , and they could not be supported, since they must charge, and the
proof must be, that the Judge’s act was wrongfully innovated or attempted pending
the appeal. Lancellott, 2 pars, e. 12, lim. 6, n. 27, 28; and see 1 Add. Rep. 22, 23.
The proceeding by attachment is wholly irregular, and, in such a case as this, unheard
of. The affidavits of loss occasioned to the owners by reason of the sale a t Gibraltar
are not satisfactory; the evidence aniounts t o opinion only, is contradicted, and there
is strong ground to presume collusion between the owners and puichasers of the
vessel. The Prize Acts, 45 Geo. III., [ZSl] e. 72, s. 52, expressly provide for a sale
being made, notwithstanding an appeal is pending ; and accordingly it has been held,
that if a suit be commenced between a captor of a prize and a clainiant, and a decree
obtained either for or against the claimant. on giving security such sentence or
decree shall be put in execution notwithstanding any appeal. Thompson v. Smith
(1 Sid. 320: and see 2 Keble, 155).
Mr. Martin, Q.C., and Dr. Bayford, f o r the Owners.-The proceeding is in strict
conformity with the direction of this Court. By the original judgment, which was a
reversal of the decision of the Court below, the owners were to be a t liberty to proceed
as they might be advised against any person or persons whom it might concern, for
further compensation for any loss sustained, o r expenses they may have incurred, by
reason of the sale of the ship under the authority of the Court below, after service of
the Inhibition under seal of This Court. It is clear that this Court thought the Judge
of the Vice-Admiralty Court personally liable f o r such loss and damage, and accord-
ingly a monition was applied for against the Judge, to appear and show cause why he
should not pay the costs and damage incurred. On that application this Court
required an affidavit of damages ; this we supplied, and we then asked for a rule that
Mr. Barron Field might show cause why he should not be attached f o r contumacy
and contempt for decreeing the sale; this Court granted that application, and we
conie here now to answer the Act on Petition delivered in by the Judge, and to pray
that the rule may be niade absolute. The effect of the service of an, Inhibition on the
Judge is the same [2$2] as the service of a notice of the allowance of a Writ of Error.
The Judge’s hands are from that instant tied : he is, as fa r as the cause in question is
310
Clarke’s Praxis z n Cur& Ecclesiasticis, tit. 265.
BARTON v. FIELD [1842-431 IV MOORE, 283
concerned, fumctus of ic io . Inhibitions
are borrowed from the Canon Law, they were not known to the Civil Law, and arose
out of the distinction introduced into the Canon Law, of allowing an appeal from a
grievance,-no such appeal was known to the Civil Law. The Inhibition is par t of the
appeal, and the breach of it is a grievance of which we complain : Corp. Jur. Civ. Dig.
29, tit. 7 ; Cod. 8. VIII. t. 62, 1. 3 ; Ayliff’s Paragon, p. 71, 73. If this is an Attentat,
the wrongfulness of the act is sufficiently pleaded in our reply to the articles exhibited.
Luncellott de Attentatis, 359.
ing a sale pending an appeal ; such exception proves the general rule.
Ckichester v. Donegal (1 Add. Rep. 5, 21).
In the Prize Acta, special provision is made for allom
The Right Hon. Dr. Lushington.-Several questions of considerable difficulty and
importance have been discussed in the course of the argument in this case, but their
Lordships are of opinion, for the reason which I am about t o state, that it is wholip
unnecessary for tlienz to enter into the consideration of those questions, or to give any
opinion upon them.
The point upon which they intend to decide the case is as follows :-
This is an application, charging the Judge of the ViceAdmiralty Court a t
Gibraltar with having committed a contempt, in directing a decres of sale t o pass,
of the vessel Winwick, after he had been served with an Inhibition issuing under the
authority of this Court.
[283] 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-Adniiralty Court, in decreeing a sale, was wil-
fully 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 satis
faction, not only that there was error, but that, in addition to there being error, it
was wilful error, and proceeded from corrupt o r improper motives.
Now having considered the whole of these proceedings, we have come to the
conclusion that no such culpability attaches t o 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 Inhibbition :
that was evidenily to him a difficult question t~ deal with; and it appearing to their
lordships that there was no wilful culpability, we cannot visit him wi th the conse-
quences which the owners seek to attach upon him by this application.
The determination of their lordships, therefore, is t o refuse the application, but
without costs.
[Mews’ Dig. tit. CONTEMPT OF COURT, 2. PAIZTICULAR CONTEMNORS. C. 8 Jur.
113. As to appeals t o
Judicial Committee froin Colonial Courts of Admiralty, see Colonial Courts of
Admiralty Act, 1890 (53 and 54 Vict. e. 27) and 0. in C. of Dec. 11, 1565 (Stat.
R. and O., Rev. IV. 403). From the rules of practice in Colonial Courts of Ad-
miralty, see 0. in C. of 23 Aug. 1883 (Stat. R. and o., Rev. I. 631). These rules
have however been superseded in a number of Courts (for list up to Dee. 31,1899,
see Pulling’s Index to S fa t . R. and O., 3rd ed., 1899, p. 106) by rules made by
the rule-making authorities of such Courts and confirmed by 0. in C. under 8. 7
of the Colonial Courts of Admiralty Act, 1890.1
See note to Barton v. Reg, 1840, 2 Moo. P.C. a t p. 34.
311