(seq. 19)

Copy Opinion
However the witnesses of [?] in preparatorio may differ in their
evidence yet they all agree that the Castor and Pollux were engaged with and fought the two
French Ships & whether they struck to the Argyl or to them the privateers will be Intitled
to a share of the prizes Nor does it seems to me to be very material to which of them they
were Condemned since the rights of the others is reserved by the [?] It will not
therefore I [?] be advisable for the Argyl and [?] to prosecute their Appeal but
rather to proceed to Judgment on the merits to of the Claims and if they shall be aggreived
by the final [?] they may Appeal therefrom.
Besides I am Inclined to think that their position for a [?] will be looked
upon as a prosecution of their Appeal & that they will not be permitted to proceed upon
it for as by the Appeal they had declined the Jurisdiction of the Judge of the Vice
Admiralty Court by that petition they submitted themselves to it again & did an
Act Inconsistent with their Appeal which is a prosecution of it.
As to the share which the privateers are Intitled to and in what manner the
Division is to be made is a point of more doubt. The Act of Parliament & his
Matys Proclamation have not provided for it nor has it come Judicially before the
Court of Admiralty. The same Rule cannot comprehend both because the
Proportion is settled in regard to Ships in his Matys pay but in regard to
Privateers it is left to the Agreement made between the Owners of Ships
Company. There seems therefore to me to be a Discretionary power in
the Court according to the Circumstances of the Case and that in the present
1/4th to each of the privateers appears to be the most Equitable Division.

J Andrew

Dis Commons
14 Janry 1744