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1815.

Tweed, shall make request to hereby empowered to admir

be admitted into the said fel. nister; which admission and Gross and lowship as aforesaid by his administration of the said oath Apother agent or deputy, making ten- shall be as good and effectual

der of 5l. for his admission, as if the same were actually La Page. the said governors, consuls, done by the said governor,

and assistants shall, under the consuls, and assistants. common seal of the said fel. Sec. 4. And be it, &c. by, lowship, within ten days after &c. that the commissioners of such request, appoint one or his Majesty's customs shall, at more person or persons to ad. every session of parliament, lay mit such person or persons into

before both houses a true ac. the freedom of the said fellow- count, in writing, uuder their ship, and to administer to him, hands, of what naval stores or them, the oath to be taken shall have been imported into by the freemen of the said fel. this kingdom by any persons lowship; which oath they are trading to Russia.

1815.

Faith and Others v. PEARSON.

dress is in a

TRE
VRESPASS for breaking and entering the Where a ship

plaintiffs' vessel, forcibly detaining her whilst commander of on her voyage from Senegal to Great Britain, car- jesty's vessels rying her to the island of Barbadoes, in the West as prize, and is Indies, and detaining her for several months. leased without There were various counts in which the injury instituted adescribed was in substance the same.

The defend- the plaintiff

gainst her, if ant pleaded :-/st. Not guilty. 2d. That at the ground of comtime of the grievance committed the defendant was commander of one of his Majesty's ships of war, Courtof Adınithe Benbow; and that he had seized the plaintiffs' action can be vessel because she had no manifest on board. common law, 3. That he boarded the plaintiffs' ship in order to either of tresascertain whether the ship or cargo belonged to the skin, or of any of the enemies of the king; and that, after ment for condiligent examination of her papers and cargo, &c. tain and marihaving probable cause of suspicion that part of the ners, cargo was American property, he detained the ship, and directed her to be carried into Barbadoes, and kept her there, to be dealt with according to law. Ath. The fourth plea stated, that the defendant, having probable cause of suspicion that the ship was American, seized her as a lawful prize.

The circumstances were these : on the 31st of March the brig John sailed from Senegal to London ; on the 5th of April she fell in with the defendant, who was the captain of his Majesty's ship the Benbow, and had a squadron under his comVOL. I.

1

1815.

FAITH and Others

v. Pearson.

mand. She was brought to by a shot which passed between her masts; and the defendant immediately sent on board his prize master, his third lieutenant, and a gang of men : they examined the ship, the crew, and the papers; the lieutenant observed, that the ship looked like an American ; that she had American canvass and rigging; and that the captain and the mate had the appearance of Americans. He took the master on board the Benbow with him, and the ship’s papers. The master returned in half an hour, with the third lieutenant, who wished him a good voyage, and left him. Not long after, another shot was fired from the Benbow, and again brought them to. The same persons came on board, and ordered the mate and all the able seamen to join the Benbow. The defendant desired to know whether the John had any slaves on board, and being informed that she had none, he asked for the manifest, but none was produced; he then examined the cargo book, and observed that a leaf had been torn out. He added, that the ship was not in the proper course for London. He took possession of all the ship's papers, and put them under seal, and then directed the vessel to be taken in tow by a brig belonging to his squadron, and in this state she arrived at Barbadoes. After a few days every thing was restored, and the vessel was set at liberty; but the master had previously been sent a-shore in custody of one of the defendant's officers, and the mate and crew had been treated as prisoners of war.

The vessel made London on the 10th of August, 1814. The John had been in the American service; she had been taken by an American privateer, but recaptured. She had, at the time of

1815.

the seizure, American rigging and canvass. The reason stated for her not having a manifest on

FAITH board was, that there was no Custom House at and Others Senegal or Goree ; and that when a vessel was

PEARSON. bound outwards no papers were ever given her by any public officer. She had, however, a clearance, which was a document signed by the Collector of the duties inwards, certifying that those duties had been paid. The point in which she was captured was in her fair course for England; and a witness stated that she would in all probability cross that point in making her way home. The vessel was sailing as close to the wind as possible ; and no suspicion could reasonably attach that she was out of her course.

The Solicitor General, and Best, serjeant for defendant, contended, that the action could not be maintained. The question is not whether the ship be good and lawful prize; not whether there was strong and reasonable suspicion; but whether the defendant did not, in fact, take the John as prize. If so, a court of common law cannot try this question; it belongs to a Court of Admiralty. If such cases were to be the subject of a common law jurisdiction, no captain could venture to detain a ship for an hour after he had examined her papers. They cited Le Caux v. Eden, Douglas, 594. If the plaintiffs have a right to recover, the captain, and every officer and sailor, would severally have a right to bring an action of trespass. The question, therefore, is, did the defendant, exercising, if they please, an erroneous judgment, take the John as prize? If so, no action lies at common law.

1815. The want of a manifest was a strong ground of

suspicion. The 26 G. 3. c. 40. s. 3. requires the FAITH and Others masters of vessels, before clearing out from the

King's dominions in foreign ports, to deliver a maPEARSON.

nifest to the officer or collector of the customs there; and, if there be no officer or collector, then to some principal officer or magistrate of the place, who are to cause a duplicate to be made, and to indorse upon the original manifest the day and year when it was produced, and to return it to the master of the vessel before she clears out. Add to this, that the vessel had been in the American service, and had, at the time, American rigging and canvass on board. They contended, that these circumstances, though they did not make the vessel a subject of prize, constituted a strong ground of suspicion, and warranted her detention.

GIBBS, C. J.-I am of opinion that the present action cannot be maintained : though the capture might have been improper, a court of common law has no jurisdiction. The injured are not without remedy, but this is not their remedy. If such an action might be supported here, the consequence would be, that every mariner might bring a separate action against the captors. The law has established a proper tribunal in the Courts of Admiralty, who are better acquainted with the principles of such cases, and can apply themselves to each particular, and examine every circumstance. In a case, whether a capture be prize or not, they enquire whether the captain has misconducted himself: if he has, they give the injured party a suitable recompense. There is nothing in the plaintiff's case which

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