Lastly, I Observe the Words of the Stat. in the Case of Recaption[7] Agree with the Words of the Law in the Cases put, for the words In the Act are shall be adjudged to be Restored to Such former Owner, etc. Paying in Lieu of Salvage, etc.
These things thus Premised I Come to the Consideration of the Point before me, and am of Opinion the Prepon'ts are Not Entituled to Any Salvage, for that the Owners were never Absolutely Divested of their Property, as may fairly be Collected from what has been Before mentioned. Its true the Prepon'ts had a Right or Claim to Salvage On the Recaption, but before that right Cou'd be Adjudged lawfull to the Recaptors the Briganteen was again taken by a Spaniard, which puts an Entire End to Salvage for a former Recaption, because Retakeing and Restitution begets Salvage but the Prepon'ts Retakeing is lost by the Enemies Again takeing the Brig't, and in Fact its the Enemy that made the Restitution. Therefore I decree the said Libel to stand dismist, but inasmuch as the Prepon'ts have been in Part Instrumental towards the Preservation of the said Briganteen and th'o not Strictly Speaking by Law Entituled to Salvage and the Case being New, I decree the Def'ts to pay all the Costs.[8]
Rob't Auchmuty, Judge Ad'y.
7 Decem'r 1741.
[1] Records of the Admiralty Court, Boston, "vol. V."
[2] In English admiralty courts the two classes of lawyers—roughly, those who appeared in court and those who prepared the papers—were called advocates and proctors, corresponding to barristers and attorneys in the common-law courts.
[3] Continue through the night.
[4] It is difficult to identify these cases, for volumes of reports of admiralty decisions were not published until the beginning of Christopher Robinson's Reports in 1798, and not many earlier decisions have since been reported; but the first of the cases here referred to may be one of the two, those of the Laurel Tree and the Palm Tree, on which Sir Leoline Jenkins rendered, in 1672, opinions which are printed in Wynne's Life of Sir Leoline Jenkins, II. 770.
[5] Open battle.
[6] Taking.
[7] 13 Geo. II. ch. 4, sect. 18.