1815.

GROSS and
Another

v.

administration of the said oath shall be as good and effectual as if the same were actually done by the said governor, consuls, and assistants.

Tweed, shall make request to hereby empowered to admi be admitted into the said fel-nister; which admission and lowship as aforesaid by his agent or deputy, making tender of 51. for his admission, LA PAGE. the said governors, consuls, and assistants shall, under the common seal of the said fellowship, within ten days after such request, appoint one or more person or persons to admit such person or persons into the freedom of the said fellowship, and to administer to him, or them, the oath to be taken by the freemen of the said fellowship; which oath they are

Sec. 4. And be it, &c. by, &c. that the commissioners of his Majesty's customs shall, at every session of parliament, lay before both houses a true ac count, in writing, under their hands, of what naval stores shall have been imported into this kingdom by any persons trading to Russia.

1815.

TR

FAITH and Others v. PEARSON.

Where a ship commander of

is seized by the

one of his Majesty's vessels as prize, and is

afterwards re

leased without any suit being

gainst her, if

have any

ground of complaint, his re

dress is in a

Court of Admi

ralty; and no

maintained at

RESPASS for breaking and entering the plaintiffs' vessel, forcibly detaining her whilst on her voyage from Senegal to Great Britain, carrying her to the island of Barbadoes, in the West Indies, and detaining her for several months. There were various counts in which the injury instituted adescribed was in substance the same. The defend- the plaintiff ant pleaded-1st. Not guilty. 2d. That at the time of the grievance committed the defendant was commander of one of his Majesty's ships of war, the Benbow; and that he had seized the plaintiffs' vessel because she had no manifest on board. 3. That he boarded the plaintiffs' ship in order ascertain whether the ship or cargo belonged to any of the enemies of the king; and that, after diligent examination of her papers and cargo, &c. having probable cause of suspicion that part of the 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. 4th. The fourth plea stated, that the defendant, having probable cause of suspicion that the ship was American, seized her as a lawful prize.

to

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.

I

action can be common law, either of pass for seizing the ship, or of false imprison

ment for contain and mariners.

fining the cap

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

The

the seizure, American rigging and canvass.
reason stated for her not having a manifest on
board was, that there was no Custom House at
Senegal or Goree; and that when a vessel was
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 sus-
picion 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.

FAITH and Others

v.

PEARSON.

1815.

The want of a manifest was a strong ground of suspicion. The 26 G. 3. c. 40. s. 3. requires the and Others masters of vessels, before clearing out from the

FAITH

บ.

PEARSON.

King's dominions in foreign ports, to deliver a manifest 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