Manning, Serjt. for the prisoners Ribeiro, Fran-between the two governments provides that no decisco, Martinos, and Joaquim. ruising for that purpose near Lagos, off the of Benin, under the command of Captain tention of vessels or search of any vessel shall take , who upon approaching the Felicidade manned This conviction is bad upon two grounds; 1st, no place, except by a vessel belonging to the royal navy ats, and gave the command of them to Lieut. felony has been committed; 2ndly, if there had, the of the sovereign whose subjects make the search, nor t, one of his officers, with orders to board the Court at Exeter had no jurisdiction to try it. The shall any search be made by a person of less rank ade, and if she appeared to be fitted up for the 1st point depends upon the question, whether the than a lieutenant in the royal navy. At the trial it trade to capture her. Lieutenant Stupart, in Felicidade and the Echo were legally captured; was contended, in order to shew this to be a capture nce to those orders, went with the two boats for if the capture of either was wrongful, then the by a British vessel, that the Felicidade by the capture e Felicidade. Cirqueira, the captain, imme- prisoners were wrongfully imprisoned, and were justi- became so; for, that having been captured by the y surrendered, and, accompanied by all his crew fied in rising upon their captors to regain their liberty. Wasp, and manned by persons who formed part of Majaval and three others, was conveyed on Now the Felicidade was illegally captured; 1st, be- the Wasp's crew, the Felicidade might be considered the Wasp. At the time of her capture the cause at the time she had no slaves on board, and a boat of the Wasp; but the case of the Melomane (5 lade was fitted up for the reception of a cargo there was no evidence that she had ever had any on Rob. 41) is a distinct authority the other way. In es, and was within 16 miles of the shore. On the board during that voyage. The argument on the part fact the capture of the Echo was made by a jollyof February, between 4 and 5 p.m., Capt. Usher of the Crown was, that, by the treaty between this boat,-non constat what jolly-boat,-with the Briremoved from the Felicidade the three men country and the Brazils, of the 23rd Nov. 1826, re- tish colours flying, at a time when it was so dark that ad been left with Majaval, sent back Cirqueira recited in 7 & 8 Geo. 4, c. 74, the carrying on of the they could not be seen. Secondly, the search was Felicidade, manned her with 16 British sea- slave-trade, or the being concerned therein, is de- by Mr. Palmer, a midshipman only, not by Lieuand placed her under the command of Lieut. clared to be piracy; and that pirates being hostes tenant Stupart. The right of search and visitation rt, and directed him to steer a particular humani generis, may be hunted down and taken by all is strictly limited to officers of or above the rank in pursuit of a vessel capable of being seen the world. The answer is twofold; first, the treaty of lieutenant; and it must be made by such officer he Wasp, although then invisible from the will bear no such construction; secondly, in order to personally; otherwise how would it be possible for ade. Lieut. Stupart accordingly steered that be binding upon the subjects of either power, it must those on board the captured vessel to know whe; but did not observe any object until the fol- be enforced by some municipal law. As to British ther they were visited by lawful authority or not, morning at daybreak, when he descried the Echo, subjects, two years before that treaty a municipal whether the officer making the search was acting zilian brigantine commanded by the prisoner law was passed, the statute 5 Geo. 4, c. 113, by which under the orders of a lieutenant, and qua lieutenant; He chased her, and coming up with her at only the actual carrying away and shipment of slaves and whether, therefore, resistance would be justificlock on the following night, fired a pistol as a is dealt with as piracy; the minor offences, of being able? Thirdly, the Felicidade, assuming her to be to bring to, got into the jolly-boat, and hoisted concerned in the trade, or preparing and intending to part of the British navy for this purpose, had no initish colours. The captain of the Echo hailed take slaves, being made felonies subject to trans-structions on board; and was not despatched by en in the boat, and asked who they were; and portation. The treaty with Brazil adopts in its 2nd Captain Usher in pursuit of this particular vessel. being informed that they were English, im- article "the several articles and provisions" of the The capture, therefore, of the Felicidade and the Echo ely set sail. Lieutenant Stupart continued treaty with Portugal on this subject, of the 22nd being unlawful, the consequence follows, that those ase; and overtook the Echo at eight o'clock on Jan. 1817, and the several explanatory articles added who were captured, had a right to liberate themxt night within ten miles of the African coast, thereto "as effectually as if the same were inserted selves by any means necessary for the accomplishind where she lowered her sails and surrendered. word for word in the said convention;" and the ment of that object; and here no excess of violence utenant had at that time under his command Mr. treaty with Portugal is recited at length in the 5 Geo. is shewn. The case states that Majaval, in the course r, a midshipman, and sixteen British seamen ; 4, c. 113. Now, the treaty with Brazil, in its 1st of a short conflict, stabbed Mr. Palmer, and threw ered Mr. Palmer and eight of the seamen to article, adopts the same distinction between the being him overboard. That is the offence which is the subharge of the Echo during the night. On Mr. concerned in carrying on the slave-trade and the ject of this indictment; and, under the circumstances, r going on board the Echo, he found in her the actually carrying it on; making the former unlaw. it does not amount to felony according to English law. er Serva, Serva's nephew, twenty-five men, ful certainly at the expiration of three years from Secondly, supposing that the crime of felony or cargo consisting of 434 slaves; and, by the the ratification of that treaty, but only the latter murder had been committed at all, it was not cogon of Lieutenant Stupart, the vessels being at piracy. Then, by the 6th article of the treaty with nizable by the courts of this country. It is clear that me close together, sent Serva, his nephew, and Portugal, it was agreed by both parties that the a foreigner, committing an offence in a foreign of the crew, to the Felicidade, where they re- ships of war of their royal navies, which shall be country, is not amenable to the laws of this cound during the night in the custody of Lieutenant provided with special instructions for this purpose try. Now a Brazilian bottom is for this purpose rt. During the chase, and at the time of the as hereinafter provided, may visit such merchant Brazilian land, and in this case it never ceased to der, Lieutenant Stupart wore his uniform, and vessels of the two nations as may be suspected be so. A mere tortuous act could not alter the protime of the surrender and capture told Serva upon reasonable grounds of having slaves on board perty in, still less the nationality of, the vessel. But s going to take them to her Majesty's ship acquired by an illicit traffic; and in the event only of supposing the vessel in which this offence was comfor being engaged in the slave-trade. The their actually finding slaves on board may detain and mitted had been rightfully captured, the nationality had printed instructions on board; Lieutenant bring away such vessels, in order that they may be of it continued until its condemnation by the mixed t had not any printed instructions on board brought to trial before the tribunals established for commission at Sierra Leone; and at the time this - licidade, and did not shew any other authority this purpose;" and amongst the instructions annexed transaction took place it had not been condemned ; or is uniform and the British ensign; he had, to that treaty is one to the effect that vessels in which if condemnation could have relation back to the time er, boarded the Echo several times before, and no slaves are found, intended for the purposes of the of the capture, it could not apply here, as the vessel va was well known as an officer in her Majesty's traffic, shall on no account be detained. [ERLE, J. was in fact never condemned, having been lost on her The slaves had been shipped on board the referred to one of the additional articles to that treaty, passage to Sierra Leone. rat Lagos. At nine in the morning next after which declared that vessels should be liable to capcapture, Lieutenant Stupart took with him ture, although no slaves were found on board, if it 's nephew to the Echo, and placed Mr. Palmer should be established by clear and undeniable proof ine British seamen under his command on board that they had had slaves on board for the purposes of elicidade, in order that he might take charge of the traffic in the course of the particular voyage on and of Serva, Cirqueira, Majaval, the prisoners, which they were at the time engaged.] That article , Ribeiro, Francisco, Martinos, Joaquim Santos, cannot apply to the Felicidade, because she had not ael Antonio, Jose Antonio, and three others of reached the coast of Africa, but was still on her Collier, for the prisoners Serva, Majaval, and icho's crew. Within an hour afterwards, Serva, voyage thither when she was captured. The 6th Alves.-First, the prisoners were not triable in this val, Alves, Ribeiro, Francisco, Martinos, and article of the treaty with Portugal was held at the country; secondly, their offence is not murder. On im, conspired together to kill all the English trial to be directory only; but that ruling was incor- the first point, no person is triable under any circumard the Felicidade, and take her; and in pur-rect in point of law. The words used are negative stances, in our courts, who does not owe allegiance e of that conspiracy rose upon Mr. Palmer and words; and it is quite clear that negative words pro- to our sovereign, and nobody owes that allegiance who nen, and, after a short conflict, succeeded in hibiting an act are imperative. (2 Dwarris on Stats. has not consented expressly or impliedly to be obehtering them, Majaval having in the course of 715.) Secondly, to render the treaty binding on Bra- dient to our laws. (Calvin's case, 7 Co. Rep. 7; Groconflict stabbed and thrown overboard Mr. zilian subjects, a municipal law of that country was tius, lib. 2, c. 11, s. 5; Huberus, vol. 2, lib. 1, tit. 3, er. Cirqueira, although solicited by Serva to necessary, and none was proved. By the law of Brazil ss. 2 & 3; Story's Conflict of Laws, c. 14, s. 541; n the plot, refused to do so, and endeavoured to the slave-trade may be perfectly lawful; and if so, as Vattel, lib. 2, c. 8, s. 101.) It would be contrary not ade him from carrying it into execution. The far as Brazilian subjects are concerned, this treaty only to international law, but to natural justice, withsel for the prisoners insisted that the capture of could not make it otherwise, any more than it could out such consent, to make the subjects of one country vessels was illegal, and that the act of killing the alter the law with regard to British subjects as laid amenable to the laws of another, with which they ased was either justifiable, or amounted to a less down in the previous statute, 5 Geo. 4, c. 113. have no social compact, and in which different sentice than murder, and cited Depardo's case (Russ. &| The second ground of objection to the legality of ments and different habits prevail. (Montesquieu, C.C. 134); R. v. Sawyer (Russ. & R. C. C. 294); the capture of the Felicidade is, that the Wasp was Esprit des Loix, vol. 1, lib. 5, 14, 19.) So, with regard Azzopardi (2 Mood. C. C. 288); and referred not furnished with proper instructions, in compli- to the jurisdiction of the Admiralty, if a foreigner e Portuguese and Brazilian Treaties set forth in ance with the treaty with Portugal. Those instruc- come on board a Queen's ship, unless it be volunta5 Geo. 4, c. 113, and 7 & 8 Geo. 4, c. 74, and tions are annexed to and declared to be an integral rily, or by virtue of treaties, he owes no allegiance to icularly the 3rd, 5th, 6th, and 7th articles of the part of the treaty; and all vessels destined for this our Sovereign. (Depardo's case, 1 Taunt. 26; R. v. ty with Portugal, and the 1st, 7th, and 8th service are to be "furnished by their own government De Mattos, 7 Car. & P. 458; R. v. Azzopardi, 2 Moo. les of the instructions. I thought that the with a copy of the instructions annexed to the treaty." C. C. 288.) If, therefore, the Felicidade had been an idade was in the lawful custody of her Majesty's Now the book of instructions on board the Wasp English ship, still the prisoners would not have been ers, that all on board that vessel were within her gave express authority to detain vessels fitted out triable by English law; à fortiori they would not, esty's Admiralty jurisdiction, and that the jury, for the slave-trade, though no slaves should be if she were a Brazilian ship; and she was tisfied by the evidence that the prisoners plotted found on board, in direct contravention of the in- even admitting that she had been legally captured. ther to slay all the English on board, and run structions annexed to the treaty with Portugal, If the men on board the Felicidade were pirates, then y with the vessel, and that in carrying their which were however contained in an appendix to the they might be hunted down by the ships of any nation; gn into execution Majaval slew Mr. Palmer by book. [PLATT, B.-I have no recollection that any but they were not. The slave-trade is not piracy by bing him and throwing him overboard, and that book of instructions was in evidence. Godson, Q.C. the common law of nations. As late as 1827, even other convicted prisoners were present, aiding and -It was taken to be so and commented upon.] It is in this country, Lord Stowell (in the Le Louis, 2 sting Majaval in the commission of that act, quite immaterial; if the book were in evidence, the Dods. 247) said that "we recognised slaves as ald find them guilty of murder. Sentence of instructions which it contains are a violation of the personal property;" and then to make an act th was passed on the prisoners, but the exe- treaty; if not, then it only appears that a book of criminal which was not so before herond the on has been respited until the 24th of No-instructions was on board,-non constat what; it power of treaties; but even the beaty self beiber inst. in order that the opinion of the judges may have been instructions in astronomy or any tween England and the Brazils does fodol with be taken, as to the propriety of the conviction. thing else. But the Echo also was wrongfully cap-it as a crime. The search is to be conducted wildly, his case was first argued in the Court of Exche-tured. First, The Echo was taken by the Felicidade by vessels forming part of the British navy only by r, on Saturday, Nov. 15. after that vessel had been captured. Now, the treaty | no officer under the rank of a lieutenant: the exa This objection need not be taken by plea in abatement(R. v. Johnson, 6 East, 583), and is fatal to the conviction (Depardo's case, 1 Taunt. 26; R. v. Azzopardi, 2 Moo. C. C. 288); for these cases decide that an offence committed by a foreigner in a foreign vessel, which has not lost its nationality, cannot be tried in the courts of this country. SO NEWS PA TIMES tenour of the instructions is to be adhered to; and no vessel not having slaves actually on board is to be detained. But that treaty was violated in this case, and the capture of the Felicidade was illegal. Even if lawfully captured, she could not become an English vessel until after condemnation and sale; for the English government had no power to prevent such sale. If the Felicidade were illegally captured, then the capture of the Echo by her would also be illegal, on that as well as the other grounds already urged. Secondly, supposing the jurisdiction of the British Admiralty to attach, the offence committed was not murder. If a person in unlawful custody destroys bis gaoler in attempting to escape, it is only manslaughter at the most; and that is the case of these pri soners. is confined, and therefore he will escape. With the all events, those of them who were mariners Manning, Serjt. and Collier, in reply. It is Godson, Q.C. (with whom were Cockburn, Q.C. Hayward, Q.C. and Poulden) for the Admiralty.-The prisoners must prove their own case. In every charge of murder, the fact of killing being proved, all the circumstances of accident, necessity, or infirmity, which led to it, must be satisfactorily proved by the prisoner. (Foster's Cr. L. 255.) Now the first question is, whether the Felicidade, having no slaves on board, was lawfully taken; and it is submitted that she was, by virtue of the first article of the treaty with Brazil, recited in 7 & 8 Geo. 4. By that article it was agreed that “at the expiration of three years, to be reckoned from the exchange of the ratifications of the present treaty, it should not be lawful for the subjects of the Emperor of Brazil to be concerned in the carrying on of the African slavetrade, under any pretext or in any manner whatever; and that the carrying on such trade after that by any person, subject of his Imperial Majesty, should be deemed and treated as piracy;" and by the second article the parties thereto "deeming it necessary to declare the engagements by which they hold themselves bound to provide for the regulation of the said trade till the time of its final abolition," agreed to adopt the several articles and provisions of the treaty with Portugal as effectually as if the same had been inserted, word for word, in the said convention. The answer, therefore, to the argument on the other side is that all those provisions contained in the Portuguese treaty, upon which reliance has been placed, ceased to be part of the Brazilian treaty on the 13th March, 1830; and that since that date any Brazilian subject being concerned in the slave-trade is guilty of piracy, and may be so dealt with. That is the construction given to the treaty by our own legislature in stat. 8 & 9 Vict. c. 122. Then if these prisoners were pirates no doubt they came within the jurisdiction of the Admiralty of England. Pirates are robbers of the seas, who may be taken and punished by any nation; and the jurisdiction of the Admiralty extends wherever the tide flows. It is the province of the Queen of England to keep the peace of the sea. [PARKE, B.-The narrow sea; not every part of the broad ocean.] But supposing that by any informality the original taking of the Felicidade were unlawful, the master of that vessel had submitted, and by his submission, she was in the possession of the Queen's officers; and it does not lie in the mouth of Serva and the crew of the Echo to because the Felicidade was illegally taken, we had a right to retake her, and, for the purpose of retaking her, to kill all the English on board. The two objections to the legality of the capture of the Echo, 1st, that she was not taken by a vessel belonging to the British navy, and 2ndly, that she was not searched by an officer of the rank of lieutenant, are answered by the facts; because the capture was really made by Lieutenant Stupart in the jolly-boat, which was a part of the equipment of the Wasp, and was for that purpose a British ship. The third objection, that the Addams, for the prisoners Ribeiro, Francisco, Felicidade had no instructions on board, has no Martinos, and Joaquim, and Harding, for Serva, weight; because the Wasp was the captor, and she Majaval, and Alves.-If the prisoners were pirates, had instructions on board. As to the sufficiency of the conviction cannot be questioned; but they were those instructions, it is quite obvious that a book not, either by the general law of nations or by any containing the instructions applicable to all nations municipal law or treaty. The distinction between must contain conflicting instructions, unless all the the two cases is wide; pirates jure gentium may be different treaties between this country and other nations taken and punished by any nation; but piracy Sir John Dodson, Queen's Advocate (with were alike. It has already been shewn that that is created by any municipal law can only be tried were Phillimore and Godson, Q.C.), for the C not so; that the provisions relied on by the other by the state within whose jurisdiction it is commit- The main question is, whether the capture side apply to Portugal only since March 1830; and ted. (Wheaton's Elements of Intern. Law, vol. 1, tention of the Felicidade were lawful; and it is not pretended that this book of instructions did pp. 162, 164.) Now, slave-trading is not piracy jure cipal ground of objection is, that, at not contain the proper instructions with regard to gentium (The United States v. Smith, 5 Wheaton's she had no slaves on board; which circunst Brazilian as well as Portuguese vessels. The case Rep. 162; the Digest, lib. 49, tit. 15, par. 19; by the fifth article of the Portuguese treat of the Melomane (5 Rob. 41) supports the legality of Black. Com. 72; 3rd Inst. 112; the Le Louis, 2 Dods. sary to justify detention; but the answer is, th the capture of the Echo. It must be admitted ge- 247; Madrazo v. Willes, 3 B. & Ald. 353; The Ante- stipulation applied to the Brazilian treaty only nerally, that when two nations enter into a treaty lope, 10 Wheat. 120); and the next question therefore the three years in which, according to that making some act an offence, it requires an ex- is, whether these prisoners were pirates by the opera-slave-trade was lawful; and at the expiration press Act of Parliament to carry it out. But tion of the treaty between this country and Brazil. it became piracy. The second article of the Br say, In the next place, the proceedings at th coram non judice. The laws of a count intrinsic force, except within its own term no nation has jurisdiction at sea excep sons on board its own vessels (Story's Laws, c. 1, ss. 7 & 8; 1 Kent's Commen 26); thus murder and robbery com foreigner on board a foreign vessel, are not in any other country than that to which t belongs. (1 Wheaton's Elements of Inter Law, p. 164.) The question therefore arses was the effect of the capture of the Fea could not be to change its nationality. The probl is well established that an act in a d convey no right (The Mary, 5 Rob. 35 fr even the lawful capture and detention of a vesse not sufficient to change the property, th nationality, without a sentence of condemn competent tribunal (The Flad Oyen, 1 Rob Henrick and Maria, 4 Rob. 55; Cranford Eng 8 T. R. 23; Rose v. Himely, 4 Cranch, The Pennsylvania, 1 Acton, 33); and acrepa these treaties, a sale also would be necess ought to be shewn affirmatively that these p were subjects of the Queen of England a when the offence was committed; and bo done? Brazil had in no way parted with be diction over the Felicidade; how then could have acquired it? What allegiance did the owe to the queen? (Calvin's case, 7 Co. There is nothing in any way to found the of the Admiralty. (R. v. Sawyer, Rass. & 1 Taunt. 26; R. v. Azzopardi, 2 Moo. C. C. Car. & K. 204.) Lastly, if the offence were ca within the Admiralty jurisdiction, it does not to murder. (Tooley's case, 2 Lord Raymond Adey's case, 1 Leach C. L. 206; 1 Ra Crimes, last edit. 635; Foster's Crown L ALDERSON, B. referred to the case of the reprisal to Turner and Carew (Beawes' Le toria, vol. 1, p. 363); also to Viner's Abril tit. Pirates, C; and Ássievedo v. Cambridge 79). though it may be true that we could not, until we That treaty must be construed like any other con- treaty incorporated into it the provisions of the fir of the th until the time of its final abolition;" so that Felicidade; yet, being pirates by the mandate of their P. 430; Vattel, lib. 2, c. 17, ss. 268, 303, 308.) time they altogether ceased to be part of it; w/ of justice, try as pirates here the men on board the interpreted strictly. (Marryatt v. Wilson, 1 Bos. & own nation, liable to be punished by their own laws, Then, upon the construction of that treaty, first, it is events, they were to be governed and controls and we having jurisdiction on the seas, given to us by clear that the punishment of the persons concerned in the first article of the Brazilian treaty, and d the sovereign of that country, we had a right, under the slave-trade was no part of its object; no means were inconsistent with that article were rendere the first clause of the convention with Brazil in 1826, were provided for bringing the offenders to justice or and of no effect. Many of the conditions of th to take them into custody, and carry them some restraining them from a repetition of the offence. tuguese treaty were wholly inapplicable to the tea taken up for Secondly, thehe prisoners were not persons carrying things which existed with regard to Brusia is captor has not legal possession of the place where he that treaty. (The Ringende Jacob, 1 Rob. 89.) At capture might be perfectly legal, though no s offence, it does not lie in his mouth to say that his on the trade within the meaning of the first article of of the three years. It is, at all events, clear that an stair The judges assembled on the following day to consider the case; and a majority held the conviction bad, on the ground that the two vessels were illegally captured, and that therefore the courts of this country had no jurisdiction to try the case. Conviction held bad. Common Law Courts. COURT OF QUEEN'S BENCH, Friday, Dec. 5. REG. v. SEWELL. Landlord and tenant-Appeal under 11 Geo. 2, c. 19, s. 17. ld be found on board; the additional articles of they would be entitled to the protection of English 5th March, 1823, provide for that case; and if law; and being entitled to its protection, they are liaain Usher had reasonable grounds for suspecting ble to its penalties. Upon these grounds the conany slaves had been put on board for the pur-viction must be sustained. of the traffic, during that voyage, the capture Addams and Harding, in reply. Not a single detention were justifiable. The argument on the case has been cited to shew that the capture r side assumed that no capture could be lawful of the Felicidade, even if lawful, would change her h was not followed by condemnation; but that is nationality, or transfer the allegiance of those on so; the capture must necessarily be upon sus- board to the Crown of England; clearly the property n; and if, upon inquiry, the vessel is not con- would not be transferred; the vessel would remain a ned, compensation must be made. When, there- Brazilian vessel; and the general rule, as to jurisdicthe additional article speaks of "clear and un- tion, would therefore prevail. But she was not lawable proof," that refers to proof before the Court fully captured. The argument on the other side is, h has to decide the question of condemna- that only a part of the provisions of the Portuguese These observations apply also to the va treaty remain in force as to Brazil; but at all events, y of the instructions; for it would be absurd all the provisions which relate to the manner of uppose that the same instructions ought to have making the visitation and search must remain; and given after March, 1830, as before; the trade by when the additional article says that there must be zilians being lawful before that time, piracy "clear and undeniable proof" of a fact, mere susr; and the book necessarily contains the instruc-picion cannot be sufficient. The preamble of the 8 & s applicable to the case of every nation. In this 9 Vict. c. 122, makes it clear that the machinery of there was sufficient ground of suspicion; for the the mixed commissions, at all events, remained in finds that the Felicidade had been off the African force as to Brazil long after March 1830. The dest four days. This construction of the Brazilian cision of the courts of Mixed Commission are not auty is that which has been adopted by the mixed thorities upon which the English judges can act; and missions in various cases. [Lord DENMAN, C.J. the treaties themselves clearly shew that equipment re they regularly reported? Can we receive alone is not sufficient to justify capture and detention. n as authorities?] They are contained in the The Dispatch (3 Robinson, 278) is no authority in ers presented to both Houses of Parliament on support of this conviction. It only decides that subject 1839-40. [TINDAL, C. J.-I suppose you where parties ask for restitution of property, they ot produce them as binding authorities, but as must come before the Court with clean hands. The trating your argument.] (He then referred to capture of these vessels being unlawful, and the pricases of the Maria Carlotta, the Esperanza, soners in unlawful custody, they had a right to libethe Emprehendador, decided by the Mixed Com-rate themselves; and all that they did was done in sion Courts at Sierra Leone, in which vessels the exercise of that right. pped for the slave-trade, but having no slaves on d, had been condemned.) Those cases proceed the ground that the equipment is prima facie ence of the parties being engaged in the trade. treaty says that Brazilian subjects, after 1830, not to carry on the trade under any pretext; then should their vessels be equipped for the trade? question is not whether these vessels ought to e been condemned, but whether they were lawfully cured; and if they were not subject to condemon, that would not render the capture unlawful. e Fortuna, 1 Dods. 86; The Amedie, 1 Dods. 84; - Diana, 1 Dods. 100.) The case of the Le Louis is e distinguishable; for there the right of search not exist at all. The general law of nations now es the slave-trade unlawful; and the onus thereof shewing it lawful in any particular instance is upon those asserting it. (Kent's Com. pt. 1, c. 9, p. & 5 Wheat. Rep.153.) No municipal law of Brazil necessary to justify the capture of the vessel, Igh it might be to punish the persons on board; as to them, there is no ground for the distinction mpted to be taken between the mariners on board other persons concerned in the unlawful traffic. eed the whole of the argument, founded upon the visions of the 5 Geo. 4, which distinguishes ween the offence of actually carrying on the trade the merely being concerned in it, is inapplicable, ause that statute of course relates only to British jects; and the Brazilian treaty only to Brazilian This was an indictment against William Sewell for jects. Even if the vessel should turn out not disobeying an order of restitution made by Lord le to condemnation, that would be no justification Abinger, C. B. and Mr. Justice Littledale, as judges rescuing her by violence; the crews of neutral of assize, under the 17th section of 11 Geo. 2, c. 19, s. sels captured in time of war have no such right 17. At the trial various objections were taken on Le Dispatch, 3 Rob. 278); and that is a stronger behalf of the defendant, and among others, and the e. On these grounds the capture of the Felicidade only one material for the present judgment, that the s perfectly lawful; it was made by an officer of order was described as an order of Lord Abinger, rank of captain in the British Navy, who had C.B. and Mr. Justice Littledale, justices of assize, per instructions on board; and even if he had and ought to have been proved to have been made by eeded those instructions in the manner of exe- them, and that the production of the order stamped ing his commission, it would not have justified by the deputy clerk of assize, as an official order, prisoners in rising upon him as if he had piratically was no evidence of such order as described tured their vessel. (Bynkershoeck, Quæst.Jur.Pub. in the indictment, and as required by the statute. 1, c. 17, p. 127.) Sir L. Jenkins had held the con. This objection was considered fatal, and a verdict ry (Wynne's Life, p. 94), but that doctrine is not was entered for the defendant, with leave to the prov. As to the Echo, the capture was made by the jolly-secutor to move to enter a verdict for the Crown. at of the Wasp; and there is no question as to the opriety of the visitation and search, because she d actually surrendered before any one went on ard; but if there were, it is quite enough that cut. Stupart went on board before this offence was mmitted; and there is no ground for saying that lieutenant must be the first person to go on ard. If the capture had been made by the Felicide, instead of the jolly-boat of the Wasp, it would ve been equally legal; the British officer, in whose ssession she was, had a perfect right to use her for at purpose; and the cases cited, as to the authority British officers to appoint tenders, are altogether ferent in their facts. Lastly, the Felicidade being the lawful possession of her Majesty's officers, the risdiction of the Admiralty of England attached. O conversion of the property was necessary; if it ere, the crews of captured slave-ships might at any ne commit the same offence without subjecting emselves to trial here, for the ship never becomes holly British. During the lawful possession of her ajesty's officers the vessel becomes for the time ritish territory; the foreigners on board owe her ajesty a temporary allegiance; if any offence were mmitted against them by the English on board, The power given by 11 Geo. 2, c. 19, s. 17, to the justices of assize to examine summarily into proceedings by justices under s. 16 of that Act, is given to them as individuals and not as justices acting under the commission of assize; therefore where an indictment for disobeying an order of restitution described the order as made by A and B, justices of assize, it was held not to be proved by the pro duction of an order, to which the official stamp had been affixed by the deputy clerk of assize.Semble, such an order should be signed by the justices of assize who make it, and the signature proved in the ordinary way. Shee, Serjt. had obtained such rule, against which The Attorney-General (with whom was Dowling, Serjt. and Bramwell) now shewed cause.The evidence here proved no order, as required by statute or described in the indictment. The indictment states the proceedings by the magistrates under 11 Geo. 2, c. 19, s. 16, by which the defendant had been put in possession of the premises of the prosecutor, his tenant, and the appeal to the next justices of assize for the county, viz. Lord Abinger. C. B. and Littledale, J. and the order of restitution made by them, being such justices of assize. The order produced bore no signature by either of these judges, but was stamped as an official order by the deputy clerk of assize, in the same way as an order of the Court of Assize or an indictment. The deputy clerk was not called. Now the power given by s. 17 is "that such proceedings of the said justices shall be examinable in a summary way by the next justice or justices of assize of the respective counties in which such lands or premises lie, and if they lie in the city of London or county of Middlesex, by the judges of the Courts of King's Bench or Common Pleas; and if in the counties palatine of Chester, Lancaster, or Durham, then before the judges thereof; and if in Wales, then before the courts of Grand Sessions, respectively, who are hereby empowered to order restitution." How, then, did the judges of assize hear this appeal? Is it by virtue of their commission, or is it merely as individuals described in the statute as justices of assize? The indictment states that it was made to them, being the justices at the next assizes. It is not said they acted as such justices, or that they acted for the others named in the commission, even supposing that would have been correct. They only have jurisdiction as individual justices, and the deputy clerk of assize had no power to authenticate an order made by them as individual justices hearing this appeal. It formed no part of the records of assize. [He was proceeding to argue other objections, but was stopped by the Court.] Shee, Serjt. and Borill, in support of the rule.-The allegation is, that the order was made by only two justices named; and the proof is, that it was made by the Conrt, i. e. all who were named in the commission of assize. The assizes are described as held before the said justices and others their fellows, and these two acted for all when they heard the appeal. It is a species of renewal of their old power under writs of assize to prevent delay; and where there are no assizes popularly so called, there the power is given to the judges of the courts. Comparing the allegations in the indictment and the statements in the order produced, they agree. [COLERIDGE, J.— But what proof is there that the order was made?] The Act does not require the signature of the justices, and your lordships probably know from experience that these orders are never in fact signed. [The Court intimated that they did not recollect an instance of such an appeal.] Lord DENMAN, C.J.-The proof here was clearly insufficient. The indictment states the order as it was intended by the statute, for there can be no doubt that it is the one or more judges, as the case may be, who go the next assizes who have the power of summarily examining the matter. They are termed justices of assize to identify them, but they do not have the power by virtue of their commission, nor does the statute extend their commission. The order must, therefore, be made by them as individuals, and no signature of the officer of the Court held under the commission can prove any thing that they have done in their individual capacity. PATTESON, J.-There is no doubt that the appeal given by the statute is to the next justices of assize, but not to the justices named in the commission. It is given to the justice or justices who go the cir cuit as individuals. Then there is no proof that they made any such order. There is no proof of their signature; and even if their signature were not requisite (although I should certainly think it was), the stamp here affixed by the deputy clerk of assize, who was not called, would shew nothing as to the parties who made the order. WILLIAMS, J.-I am of the same opinion. The short question is, whether the certificate of Mr. Straight, the deputy clerk of assize, is any evidence of an allegation that an order was made by the two justices, as required by the statute. If it were a judicial act within the authority of their commission as justices of assize, it might be so; but there is nothing whatever in the commission about such a power. There is no roll of the proceedings at Nisi Prius generally, and this certificate has no tendency whatever to prove that these two justices made the order. COLERIDGE, J.-The question is, what is the interpretation to be put upon the statute? Is the power given to the justices named in the commission, or to the judge or judges as individuals? There can be no doubt, upon looking at the terms used, that it is given to them as individuals. It is given to the justice or justices, which would meet the case where a single judge only went the circuit. Then the other clauses also clearly refer to the judges as individuals, except as to Wales, the phrase is changed, and the power is given not to the judge, but to the Court. This distinction leaves no doubt that in the former clause the power is not given to the justices of assize, as a Court, but as individuals; and their deputy clerk of assize can have no power to authenticate in this way any act of the judges. Their order must be proved in the usual way. Rule discharged. Tuesday, Dec. 9. POOLE . WILLIAMS. Liability of master for the acts of his servant Evidence. A employs B to deliver parcels, B finding horse and cart and driver; and also employs C to superintend their delivery. C drives a cart containing carpeting (A being a draper) against the plaintiff's cab: Semble, that this evidence does not establish even a prima facie case of liability against A. Case, for damage done by a collision between the plaintiff's cab and defendant's cart. Pleas-1st, Not guilty; and 2nd, that defendant was not possessed of the cart. The evidence was, that the plaintiff's cab was run down by a cart containing carpeting, and driven by one Phillips, who, upon being asked, stated that he was in the employment of the defendants, drapers, in Regent-street; that defendants had no cart of their own, but employed one Camp to take out their parcels; that Camp found the cart, the horse, and the driver; and that the duty of Phillips was merely to superintend the delivery of the parcels; but neither Phillips nor Camp was called as a witness. Verdict for the plaintiff; and rule nisi to set aside that verdict and enter a nonsuit, or for a new trial. H. Hill shewed cause.-The evidence establishes a prima facie case. Phillips is proved to be a servant of the defendants, and to be driving a cart employed by them in the delivery of their parcels. If in so doing he exceeded his duty, it rested with the defendants to prove it by calling either Phillips or Camp. Knowles, Q.C.-To make the defendants liable, the plaintiff must shew, not only that Phillips was their servant, but that at the time of the accident he was doing an act in the execution of his duty as their servant; instead of which it appears, on the contrary, that driving was no part of his duty. Neither does it appear that the cart in any way belonged to the defendants, or was employed by them. It contained carpeting, but there was no evidence that it was any part of the defendant's business to sell car pets. The plaintiff's case, therefore, wholly failed: citing Quarman v. Burnett (6 Mee. & W. 499). Lord DENMAN, C.J.-I doubt whether there was not some evidence for the jury; but my brother Wightman has a strong opinion that there ought to be another trial, and perhaps that is the most satisfactory course; but we give no opinion as to the liability; we do not say that Camp is liable or that the defendant is not. WIGHTMAN, J.-The ground is the deficiency of evidence; Phillips appears to have been in the defendants' service for a very different purpose from that of driving. Rule absolute for a new trial. DAVIS v. CURLING. Highway Act-Notice of action. A surveyor of highways, sued for an injury suffered by the plaintiff, in consequence of rubbish and gravel improperly left upon the highway under his care, is entitled to notice of action under the 109th section of 5 & 6 Wm. 4, c. 50. worth v. Rudgard (1 C. M. & R. 499) where the action is for money had and re there can be no reason for notice. The ascertained, and no tender of amends made. But, if necessary, I should control Umphelby v. McLean is not law since Water Keen (4 B. & C. 211). The second class area Case, against the defendant for damage sustained for penalties, and there no protection is neces by the plaintiff in consequence of gravel and other tender of amends can be made; there is a veste rubbish being left improperly on a highway. The in a sum certain. That is Wright v. Horton. T declaration stated, that before the committing of the class are actions for acts done by parties holding grievances, &c. the defendant was a surveyor of high-employments, hut independent of, and whol ways, appointed under 5 & 6 Wm. 4. c. 50, and that nected with, such employment; as carriers before, &c. a large quantity of gravel, earth, and mon law are not entitled to notice, because ther rubbish had been laid and put upon a certain public high- also powers under a railway Act. (Palmer way, which before and at the time of the committing Junction Railway, 4 M. & W. 749; Carpueix by the defendant of the grievances hereinafter men- and Brighton Railway, 5 Q. B. 747. See a tioned was under the survey, care, and superintendence v. Saunders, 10 Bing. 429; Morgan v. Pane of the defendant as surveyor, by reason of which said & C. 729.) Then, looking at the charge here, a gravel, &c. the said highway had become straitened, facts proved, it is impossible to say that the and the said gravel, &c. had become and was a plained of was independent of, and unconnect nuisance to the public passing along, &c. ; of all which his official duty. According to the argument the defendant before, &c. had notice, to wit, &c. ; and other side, the lapse of any time after an i was requested to remove the said gravel, &c.; and obstruction would debar the defendant f charged, that the defendant, well knowing the tection. He is, throughout the declaration re premises, but continuing, &c. did not nor would as surveyor. [Lord DENMAN, C. J.-Howar within a reasonable time remove or cause to be re- over the notice in fact?] It wants every moved the said gravel, &c.; but on the contrary, for such a notice. [He was then stopped. from the time of receiving such notice up to and until Court.] the happening of the said injury, &c. behaved and conducted himself with gross negligence in and about the premises, and knowingly, wilfully, and wrongfully, and in violation of his duty as such surveyor as aforesaid, allowed, permitted, suffered, and caused the said gravel, &c. to remain, continue, and be in and upon the said highway, straitening and obstructing the same, and remaining and being a nuisance to the public for a certain long and unreasonable time, to wit, &c., without taking any care or precaution whatsoever to guard against danger or damage to persons going along the said highway, contrary to his, the defendant's, duty as such surveyor as aforesaid. By means whereof, &c. STINTON . BLOXHAM.--Case, for wrongfully distraining for 561. 5s., only 461. 10s. being due. Plea, Not guilty by statute. Verdict for the plaintiff; and rule nisi for a new trial, on the ground of surprise. The question turned upon the affidavits. Cockburn, Q.C. and E. James shewed cause; Peacock, in sup-under sec. 109. port of the rule. Rule absolute for a new trial; the question of costs reserved. DAVIS v. CURLING. Wednesday, Dec. 10. DANIEL v. PIDDING. Sale-Evidence. Part heard. Where a broker, according to the usual practice, pays the deposit for the vendee, who afterwards recognizes the payment by part payment to the brokers, this is not an admission to dispense with the production of the bought and sold notes, there having been no acceptance of part of the goods sold. This was an action in special assumpsit for the loss upon a resale sold under a contract, with conditions stated at length in the declaration. The bought and sold notes were not produced at the trial, but it was shewn that the conditions were those usual in tea-sales; that defendant was in the trade and acquainted with the conditions; that the brokers had paid the deposit required by the conditions, and that the defendant had subsequently recognized the amount so paid as a debt from him to the brokers, and included it in a composition which he paid to them as his creditors. At the trial, Lord Denman, C.J. thought that such a settlement was an admission of the contract. Martin, Q.C. had obtained a rule nisi for a nonsuit, on the ground that there was no evidence of a contract, against which Watson, Q.C. and Oyle, shewed cause.-This is not a parol admission of payment, but a recognition by acts of the contract. [WIGHTMAN, J.-How is it shewn that the bought and sold notes did not vary the conditions?] There is also an admission upon the record, that the deposit was paid. There was also evidence upon the account stated. After the payment of the deposit, a letter was written from the plaintiff, with a statement of account, and the defendant afterwards called, looked at the books, and offered a composition, which was refused. [WIGHTMAN, J.-That was no evidence of an account stated.] Martin, Q.C. (with whom was Willes).-There was no evidence of the contract, the bought and sold notes not being produced. Lord DENMAN, C.J.-At the trial I considered statute. Plea-Not guilty. Verdict for plaintiff, damages for 351. with leave to move for a nonsuit, on the ground that no notice of action had been given, as required by the statute (upon which alone the Court gave judgment), and also as to the sufficiency of the evidence to fix the defendant with personal knowledge of the obstruction. Petersdorff had obtained a rule accordingly, against which Bovill shewed cause.-No notice was necessary, A mere nonfeasance and culpable negligence is not within the protection of the It must be an act done in pursuance of and under the authority of the statute. (See dictum of Maule, J. in Eliot v. Allen, 14 L.J. 136 C.P.) The defendant is entitled to notice only where the general tenor of the Act would authorize what he has done, but there has been some minute variance or mistake. The charge here is that he omitted to remove, therefore some clause should be shewn authorizing such omission generally, giving some semblance of justification. It is charged also that he wilfully did it; it could not, therefore, be in pursuance of the statute, nor could there be any mistake as to his duty. The mere acting as surveyor is not sufficient to bring him within the statute. In Wright v. Horton (Holt, N. P. C. 450), the defendant had acted as a magistrate, but no notice was requisite in an action against him for acting without qualification. Umphelby v. M'Lean (1 B. & Ald. 42) is a similar anthority; so Charlesworth v. Rudgard (1 C. M. & R. 488, 3 D. P. C. 517). For a mere nonfeasance, no notice of action is necessary. (Atkins v. Banwell, 3 E. 92.) In Carpue v. London and Brighton Railway (5 Q. B. 747), although the Act contained the additional words, "for any thing omitted to be done," Patteson, J. remarked, that no part of the clause pointed to things negligently done; shewing how strictly these protective clauses are to be construed. Shatwell v. Hall (10 M. & W. 523), Cork v. Leonard (6 B. & C. 355), Dowell v. Benningfield (1 C. & M. 9), were also cited. Even if notice was requisite, a sufficient notice was given. [Several letters were referred to, but they did not shew when or where the accident occurred, nor the form of action, and required compensation immediately.] Lord DENMAN, C. J.-This was an act ding course of his official duties. The grave! it where it ought not to have been, after n move it. As by the declaration, so by the i is charged, in his official capacity, with a pa (not a mere omission), -with leaving the was improperly put there. Notice was es PATTESON, J.-The declaration appa to sec. 56, for the statement as to the left follows very nearly the words there not attach any importance to the use di wilfully; but still it was not a mere omiss!! something wrongfully done, and a conting Is it, then, an act in pursuance of the stat gravel was put there by the surveyor, dir remain, there some time; then the length of question of reasonableness. Notice was se WIGHTMAN, J.-The defendant is only an officer, and is charged as such, with the 13 of his official duty in permitting the obstructi remain without sufficient precaution. It is the something done in his official capacity, and he titled to notice, that he may tender amen with Mr. Petersdorff that there maybe between actions in tort and those e contract, fo to the latter there can be no tender of amends. T however, is a breach of duty imposed by art f liament. Rule for nonsuit aavinte v BUSINESS OF THE WEEK. Saturday. DOE dem. BUTLER v. LORD KENSING V. Williams stated that he declined the made by Chilton, Q.C. in this case the day bein Monday, Dec. 8. ROGERS V. BRENTON.-M. Smith concla argument against the rule for a new tra arrest of judgment. Sir T. Wilde, Serjt. and d Q.C. (in part) were heard in support. Argument adj HOPE t. HARMAN. Postponed till next Wednesday, Dec. 10. HENZELL . HOCKING. Rule absolute, with liberty to the other reopen it on payment of costs. COURT OF EXCHEQUEL Tuesday, Dec. 2. SPECIAL PAPER. DRESSER V. STANSFIELD. Debt upon an award-Pleadings in. Petersdorff (with whom was James), contrà.-Personal knowledge was not brought home to the defendant, which is necessary. But, at any rate, notice In action of debt upon an award, the proper of action was necessary. He is charged as surveyor; he derives his liability solely from the statute, and is, therefore, also entitled to the protection given by it. He could not have been sued unless proved to have been raise the question of whether all the matters a ference submitted to the arbitrator have been is to plead generally that no award has bez suŻ. This was an action of debt upon an award, fed surveyor; and there are several sections (ss. 51-54) claration being in the ordinary form. The defenda In pursuance of the sta- had not made any award as to one of the issues int to perform about gravel. tute" are vague words, but mean in pursuance and execution of an official employment, as here. The cause referred. To this plea there was a demurrer, on the gran that, under the circumstances, the payment was an objection, that no plea could have been framed, is that the plea was merely an argumentative des an award having been made. Hugh Hill, in support of the demurrer.-The pr admission of liability upon the contract, and that it was duly made. But it is impossible to say, upon reflection, that I was right. BINGLEY U. YONGE. Rule absolute. Rule absolute. futile; for if a plea would have been an answer, then no protection was necessary. Then the cases cited are easily distinguishable. The first class are those against an officer for nonpayment of money; as Umphelby v. M'Lean (1 B. & Åld. 42), and Charles-roperly put there, nor by whom. (a) The declaration did not shew that the gravel vi y the COURT. Judgment for the plaintiff. Friday, Dec. 5. The EARL OF ROSSE v. WAINMAN. (Argued Nov. 17 and 19.) Special case. Crowder, for plaintiff. Butt, for defendant. Defendant to amend. ADMIRALTY COURT. Wednesday, Nov. 5. THE JANE.-Salvage. This was an action brought by the writers, owners, and crew of two smacks, named the Benevolence and the Friends' Goodwill to obtain a reward for alleged Rochester, which, on her voyage to that port from salvage services rendered to the schooner Jane, of Middleborough, with coals, on the 29th of May last, was off the entrance of the Swin, in the Thames, and early in the morning of the 30th, the wind blowing bard from the N. E. by N., the weather densely thick, with heavy rain, grounded upon the East-flat of the Barrow-sand. She was descried by the two smacks, which came up to her assistance, and eventually the schooner was got off the sand, and carried safely to Sheerness. The negotiations which took place between the master and the asserted salvors were matters of dispute between the parties, and the subject of very contradictory affidavits; the parties who proceeded against the vessel contending that the schooner was, in fact, abandoned by the master and crew; the owners alleging that those parties, after their services had been declined, took advantage of the accidental absence of the master, the jolly-boat having got adrift with the master in it, and obtained possession of her, employing expressions calculated to intimidate the crew, by inspiring them with the apprehension that the vessel would be lost. The ship was arrested for 250., the vessel, cargo, and freight being worth only 8001. had never been abandoned by the master and crew; Dr. LUSHINGTON was of opinion that the vessel that the pretended salvors had taken possession of her without the slightest authority from the master; that the act approached as nearly as possible to an act of piracy as any case which had come before the consideration of the Court; and that the claim had been supported by false swearing from the beginning to the end. He pronounced against the claim, and condemned the pretended salvors in the costs. Friday, Nov. 14. way for the defendant to put in issue the fact of said Cyril Jackson, and such other person or persons ther or not the award settled all the matters in as aforesaid, shall and may from time to time for ever =rence would be to plead that no award was made, hereafter hold and enjoy all rents, services, courts, ch means no award according to the terms of the perquisites and profits of courts, goods, and chattels mission. In Gibson v. Hart (5 M. & W. 57) Parke, of felons and fugitive felons of themselves, persons says, "The plea of no award' means no award outlawed and put in exigent, deodands, waifs, estrays, ording to the submission,' as was said by Bayley, forfeitures, and all other jurisdictions whatsoever, in Fisher v. Pimbly (2 C. & M. 722), it means no and upon the said commons and waste grounds hereby d award." This is merely an argumentative directed to be divided and inclosed as aforesaid, Ferse of a material allegation in the declaration, and all mines and minerals, of what nature or comes within the rule laid down in Muntz v. Fos-kind soever, lying and being within or under the said (7 Scott, N. E. 471); see also Hicks v. Cracknell commons and waste grounds, in as full, ample, and M. & W. 72). atson, Q.C. in support of the plea. The point they could or might respectively have held and enbeneficial a manner, to all intents and purposes, as before the Court is of great importance, for if joyed the same in case this Act had not been made." award" is held to be the proper plea in cases Then it goes on to make a provision for the working the present, a party pleading it may at the trial of the mines and minerals, "and that the said Cyril nto evidence on some minute point of which the Jackson, and such other person or persons as afore>site party has no notice whatever. [ALDERSON, said, shall and may from time to time, and at all -That (practically) will never prejudice, for an ac- times hereafter, have, hold, use, work, and enjoy exon an award is never brought until either a motion clusively all mines and minerals, of what nature or kind been made to set aside the award, or, by the other soever, within and under the said commons and waste for an attachment for not performing the award.] grounds, and within and under every part thereof, I submit that, on a plea of "no award," we together with all convenient and necessary ways, and d not go into the question of whether there were full liberty of laying, making, and repairing waggonain things in the submission not gone into and de- ways and other ways in, through, over, and along the d by the arbitrator, but that we should merely be said commons and waste grounds, or any part thereved to contend that the award was bad on the of; and with full and free liberty, power, and authoof it. [PARKE, B.-In Gisborn v. Hart we held rity of digging, sinking, searching for, winning, and a prima facie case was made out by the plaintiff working the said mines and minerals, and loading and utting in the submission and the award, but we carrying away the lead ore, coals, iron, stone, and fossils held that the defendant might impeach this under to be gotten thereout, and of making pits, shafts, and plea of "no award." ed for on the other side, "no award within the and of repairing, amending, and upholding the same; No award means, as con- pumps; pit-rooms, drifts, levels, and water-courses, is of the submission."] Then I submit that the and of erecting, building, and using houses, kilns, iration is bad for not shewing distinctly a valid fire-engines, and other engines, mills, and other d on all the matters in difference. [PARKE, B. erections and buildings; and of altering, changis clear that the arbitrator must decide all the ing, pulling down, and carrying away the same, ers in difference; but here there is an allegation or all or any of the materials thereof, at their there were no matters in difference, except "of free will and pleasure; and to do, execute, and perconcerning the cause;" and then it goes on to form all such other works, acts, matters, and things, e, that the arbitrator made his award "of and either now in use or hereafter to be invented, as erning the premises." Now if you can see from shall or may be necessary or convenient for the full anguage of the arbitrator that he has decided all and complete working, use, and enjoyment of the said issues which he has to decide, that is sufficient; mines and minerals hereby reserved, in as full, ample, Il events, it would be well enough upon general and beneficial a manner, to all intents and purposes, as urrer.] they might or could have done in case this Act had not been made, without any interruption, disturbance, claim, or demand whatsoever; provided, nevertheless, that the said Cyril Jackson, his heirs and assigns, THE CONSTANTIA.-Bottomry. and his and their tenants and lessees, shall, This was a motion, in which Dr. LUSHINGTON had and they are hereby required, in the searching for reserved his opinion, respecting the right of priority of the first layer or stratum of earth separate and should be paid. The vessel was a Peruvian vessel, from and working the said mines and minerals, to keep several bottomry bonds, and the funds out of which they apart by itself, without mixing the same with the Lima to London, with guano and timber, and suslower strata." The term "minerals" here used, taining damage at sea, she put into Bahia, where motaining metals, in its proper sense includes all fossil bonds-one, dated the 27th of February, 1845, for although more frequently applied to substances con-ney was taken up upon bottomry. There were three bodies or matters dug out of mines. says, "all metals are minerals, but all minerals are bond, of the same date, for 1,3511. 17s. 6d., was upon Dr. Johnson 2,2531. 2s. 6d. hypothecated the ship only; another not metals," and "mines," according to Jacob's the cargo only; the third, dated the 9th of April, 1845, Law Dictionary, are "quarries, or places whereout for 3621. 2s. 3d. hypothecated the ship only. There any thing is dug." 7 B, In the Year Book, 17 Edw. 3, being three funds applicable to the repayment of ad"Ferrè de carbons 99 stones which may be dug by mining or quarrying, are fund or funds the several bonds were to be paid, and are spoken of. Beds of vances on bottomry, the question was out of which therefore properly minerals, and so we think they their order of priority. The learned judge was now in mind that the object of the Act was to give the entitled to be paid in the first instance, in preference must be held to be in the clause in question, bearing of opinion, that the bond of the 9th of April, 1845, was surface for cultivation to the commoner, and to leave to the others, out of the proceeds of the ship. Being in the lord what it did not take away for that pur- the last in date, it was upon that account entitled to the pose; and this construction is greatly favoured by preference upon principle; and being on the ship only, the last clause, which provides that the surface-soil it was to be paid out of the proceeds of the ship. With PARKE, B. now delivered the judgment of the was to be kept " -that is, "the first layer or stratum of earth" respect to the other bond on the ship, he was of opinion art.—The question in this case is whether Lord out mixing the same with the lower strata," a pro- applied to the payment of that bond. In regard to the separate and apart by itself, with- that the remaining proceeds of the ship ought to be sse is entitled to the stratum of stone in the vision which clearly indicates that the removal of the bond upon the cargo, he must take it that ship, freight, tment of the waste of the manor of Shipley, surface of the soil to a great extent may take place, and cargo were all hypothecated by the bond; and osed by virtue of the Act 55 Geo. 3, c. 18. Lord and be subsequently restored, so that the getting the cargo in such a case could not be resorted to until sse was the assignee of Dr. Cyril Jackson. Dr. stratum of stone by quarrying must have been conthe proceeds of the ship and the freight had been exil Jackson was the lord of the manor at the time templated. It must, however, be admitted that the hausted. If the proceeds of the ship should be exthe inclosure, and Lord Rosse has all the rights provision authorizing "the working the mines and hausted by payment of the two bonds before mentioned, ich were reserved to Dr. Cyril Jackson by the minerals, loading and carrying away the sand, ore, this bond must be paid out of the freight; but if it losure Act. What these rights are depends on lead, coals, iron, stone, and fossils," leads to the should turn out that the proceeds of the ship are inconstruction of the Act, which is not very clearly supposition that the Legislature intended to reserve med, and is open to much doubt; but the result of metallic minerals only, and creates much doubt about 27th of February, he was of opinion that the bondsufficient to pay the bonds of the 9th of April and the - consideration of the whole of its provisions is, the true construction of the words in the Act. t in our opinion the right to the stratum of stone the word "fossils" in a strict sense may apply to lenders had it in their power to hypothecate ship, holders must go without the money, because the reserved to the lord; consequently the plaintiff stones dug or quarried; at any rate, we do not think cargo, and freight, and they confined their security to st be entitled to recover. It is clear from the this provision so clearly indicates the intention of the the ship alone. tal that, before the passing of the Act, the lord Legislature to limit the proper meaning of the word upon the cargo out of the ship and freight, as the priHe directed the payment of the bond entitled to the soil of the waste and to every as to call on us to do so. ng constituting the soil, including every stra- the word minerals being connected with stone in the act if he were to throw upon the cargo a burden which We place no reliance on mary fund, because otherwise he should do an illegal of stone; and the question is, how much 18th section, which may be treated ejusdem generis, it ought not to bear till the previous funds were exthis right was taken away and transferred and the word there is probably introduced by mistake hausted. der the Inclosure Act, to those to whom the allot- for the word metals. Our opinion is, therefore, that nts were made. All is taken away except that which the plaintiff is entitled to recover. reserved by the saving clause 32, which is to be nstrued with reference to the title of the lord to whole of the soil. The section provides "that thing therein contained"-(that is, nothing in the Et contained)" shall be construed to extend, det, lessen, or prejudice the right, title, or interest of said Cyril Jackson, or any future lord or lords, By or ladies, of the said manor of Shipley afored in or to the seigniories and royalties incident or V. Lee, for plaintiff. Willes, for defendant. struction of the words "mines and minerals" in a cal Act for the inclosure of a waste-Held, to inude the ordinary stone of the country, and not mellic minerals only. his was an action of trover for converting certain ne, minerals, &c., and there being no facts in disbetween the parties, it was turned into a special for the opinion of the Court; the short point g, what was the meaning of the words "mines minerals" under an Act for the inclosure of a te, and whether these words could be held to ude stone dug under the surface of the earth, by rries or otherwise, of the ordinary kind found in neighbourhood. Hugh Hill was heard for the plaintiff, and Cowling the defendant, at a subsequent day, when the irt took time to consider the facts of the case; and arguments on them are so fully set out in the Dorate judgment of the Court, that it is unnecesy to set them out here. longing to the said manor of Shipley; but that the But Judgment for the plaintiff. Judgment for defendant. Bankrupt and Insolvent Courts. Thursday, Nov. 27. |