any ship.

[* 437 ]

unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales, provided, however, that unless the plaintiff recover 207. he will not be entitled to any costs, unless the judge certifies that the case is a fit one Equipment and to be tried in that court. The court has, also, by the 4th section repairs. of the same act, jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds are under arrest of the court. The 7th section of the act gives the court jurisdiction over any claim for damage done by any ship, thus conferring upon it the most extensive power in Damage done by collision and similar cases. And so liberally has this power been construed that it has been held to give the court jurisdiction *to award compensation to a diver who had been injured by the paddle of a steamer passing over him (a), and to extend to the case of a collision between two foreign vessels in foreign waters (b). It also, under the 6th section of the act, has jurisdiction over any claim by the owner, or consignee, or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods, or any part thereof, by the negligence or misconduct of, or for any breach of duty or breach of contract on the part of the master or crew of the ship, unless it is shown to the satisfaction of the court at the time of the institution of the cause that any owner or part owner of the ship is domiciled in England or Wales. It has, Questions between owners. also, jurisdiction under the 8th section of the act to decide all questions arising between the co-owners, or any of them, touching the ownership, possession, or employment, or earnings of any ship registered at any port in England or Wales, or any share thereof, and it may settle all accounts outstanding and unsettled between the parties in relation thereto, and may direct the ship, or any share thereof, to be sold, and may make such order in relation to the matter in dispute as it shall think fit.

Damage to goods or breach of contract.

Mortgages.

It also has jurisdiction by the 11th section over claims by way of mortgage, whether the ship, or the proceeds thereof, be under

arrest of the court or not.

Wages.

Pilotage,
Restraint.

It also, by the 10th section, entertains claims by seamen for wages earned on board a ship, whether by virtue of a special contract or otherwise, and also claims for wages or disbursements by the master of a ship, provided always that unless the plaintiff recover 50%. he does not get his costs, unless the judge grant a certificate to entitle him to them. It also has an original jurisdiction to enforce claims for pilotage, and may issue orders in suits of restraint to prevent the sale of the whole or any part of the ship; * and it may, by its order, remove the master of a ship where his removal appears to be necessary. [* 438] The powers exercised by the high court of admiralty have recently, by the 31 and 32 Vict. c. 71, been conferred on certain county courts, by virtue of which they are entitled to try claims for salvage where the property County courts. saved does not exceed 1000l., or where the amount claimed does not exceed 3001.; claims for towage, necessaries, or wages where the amount claimed does not exceed 1507.; claims for damage to cargo, or for damage by (a) The Sylph, 2 L. R. Ad. & Ecc. 24.

(b) The Courier, 1 Lush. 541.

collision where the amount claimed does not exceed 3007. They have also jurisdiction (by the 32 & 33 Vict. c. 51) to try and determine any claim arising out of any agreement made in relation to the hire of any ship or in relation to the carriage of goods in any ship, and also as to any claim in tort in respect of goods carried in any ship, provided the amount claimed does not exceed 3007. This proviso, however, does not prevent the parties from trying all such suits in the county court, although the claim exceeds the amount above limited, if they agree in writing that such county court (being a county court having admiralty jurisdiction) shall have jurisdiction to try the case.

Appeal from

The judge of the county court may also (by section 5 of the last-mentioned act), at the request of either party, be assisted by two mercantile assessors. An appeal from any final decree, or order of the county court, in an admi▾ ralty case, or by permission of the judge of the county court, from any interlocutory decree or order therein, lies to the high court of county courts. admiralty, subject to security for costs being given. No appeal, however, lies from any decree or order of the high court of admiralty made on appeal from the county court, except by the express permission of the judge of the high court of admiralty, and no appeal lies unless the amount decreed or ordered to be due exceeds the sum of 50l.

[* 439]

Practice.

*

The practice of the Court of Admiralty is regulated by the rules and orders of November, 1859, by virtue of which parties are entitled to prove their case, subject to their complying with the necessary formalities, either by affidavit, by written depositions, or by the oral examination of witnesses in open court, or partly by one mode and partly by another. In all cases, however, where the oral examination of witnesses can be had, it is the practice of the court to incline towards that mode of taking the evidence.

Trinity Masters.

The court, at the hearing of the cause, has power to summon to its assistance Trinity Masters to sit as assessors, and it usually does so in cases requiring for their determination any peculiar knowledge of nautical science. Thus in cases of collision it is almost a matter of course for the court to require the presence of the Trinity Masters upon application from either party for that purpose; and there is power under the Admiralty Court Act, 1861 (section 8), for the court to make an order for the Trinity Masters to inspect any ship, or other property, the inspection of which may be material to the issue in the cause.

The appeal from the high court of admiralty is to the Judicial Committee of the Privy Council. It lies, as of course, from any final decree or sentence of the court; but from any interlocutory decree or order, it lies only by permission of the judge.

Appeal.

[*440]

Jurisdiction.

*CHAPTER XVII.

ECCLESIASTICAL COURTS, ETC.

THESE Courts formerly exercised a very extended jurisdiction, comprising within their scope the determination of all testamentary causes and suits, and the granting of probates and letters of administration. They also entertained matrimonial suits, and had power to decree a divorce a mensa et thoro, and to give the relief, now granted by the court of divorce, except, as has been before stated, the dissolution of the marriage tie. Their powers, however, of late years have been very considerably restricted. Thus, their jurisdiction over all matters and causes testamentary, including suits for legacies, or for the distribution of residues, was taken from them by the 20 & 21 Vict. c. 77, and conferred upon the court of probate. Their jurisdiction in matrimonial matters and suits was taken from them by the 20 & 21 Vict. c. 85, and conferred upon the court for divorce and matrimonial causes. Their jurisdiction in the matter of church rates, which was formerly a most fruitful source of litigation, has been abolished by the 31 & 32 Vict. c. 109, which declares that, after the passing of that act, "no suit shall be instituted, or proceeding taken, in any ecclesiastical or other court, to compel the payment of any church rate made in any parish or place in England or Wales." Their jurisdiction, also, in cases of brawling, except as between persons in holy orders, has been taken away by the 23 & 24 Vict. c. 32, which has given power to justices of the peace to fine or imprison persons found guilty of unlawfully interfering with any clergyman in holy orders during [441] the service, or of making disturbances in churches or chapels, churchyards or burial grounds. And the jurisdiction to entertain suits for defamation was abolished by the 18 & 19 Vict. c. 41. During the last session of parliament, also, a bill was introduced for the purpose of further altering their jurisdiction, and re-moulding their procedure; and although such bill failed to become law, it is extremely probable that some considerable alterations will shortly be made both in their jurisdiction and in their procedure. In the view of such probable legislation, therefore, it is hardly necessary to do more than allude cursorily to the powers and the ordinary process of these courts.

*

The business of the ecclesiastical courts, of which the principal are the consistory courts of the bishop of each diocese, and the court of arches, which Suits against sits at Westminster, is now mainly confined to inquiring into clergymen; charges of heresy, of improperly conducting the service of the church, and of immoral or scandalous conduct on the part of clergymen. These suits, which are of a criminal nature, are preceded by an inquiry under a commission issued by the bishop of the diocese in which the offence is alleged to have been committed, and a consequent report of the commissioners to the effect that there are sufficient prima facie grounds for instituting further proceedings. The charges are usually for neglect of duty as a clergyman, or violation of the duties of the sacred office, for scandalous or immoral conduct, for brawling in a church or churchyard, for simony, or for maintaining doctrines, or performing divine service in a manner contrary to the articles of religion as by law established.

Against laymen.

These courts have also jurisdiction to entertain suits of a quasi criminal nature against laymen, for gross immorality, for damaging the church or the churchyard, or not repairing the chancel or aisle when it is incumbent on them to do so: also against churchwardens for * neglect of duty in respect of the fabric of the church, or the provid[* 442 ] ing of the necessary robes or elements for the clergy: and against any person for defacing or removing the monuments or the pews, or otherwise improperly interfering with the church or churchyard without a faculty previously granted by the ordinary.

Civil suits;

They also entertain certain suits of a civil nature, as, for instance, a suit known as a suit for perturbation of seat, where a party claims to be entitled to a certain pew or seat in a church from which he has been excluded; and which may be brought either against the churchperturbation of wardens, to secure the claimant's quiet enjoyment of his seat, or against the actual intruder, to compel him to prove his title or to cease his intrusion for the future. In respect of this right, however, an action for trespass will also lie at common law against the intruder, where the plaintiff can show by prescription a right to the seat or the pew which he claims.

seat;

for grant of a faculty.

When, also, it is desired to make such alterations in a church or churchyard as require to be authorised by a faculty (or permission) from the ordinary, the ordinary, before granting such faculty, causes all persons having an interest in opposing the grant to be cited to show cause why such grant should not issue, and in the event of any persons appearing to show cause against the issuing of the grant, a suit becomes instituted, and the parties are heard, their various objections are considered, and judgment is given, as in an ordinary suit.

The procedure of these courts is usually by citation, libel or articles, and answer. Formerly the evidence was taken upon depositions by examiners;

Procedure.

now, however, by the 17 & 18 Vict. c. 47, the ecclesiastical courts are empowered to take evidence vivá voce, and this is the course usually pursued.

The court of arches.

*

The court of arches, above referred to, is the court of appeal from tho different diocesan courts in the province of Canterbury, and is presided over by a judge, called the Dean of Arches, who sits as [*443] deputy to the archbishop, and is supposed to have received that title from originally holding his court in the church of St. Maryle-Bow (a). It, also, to a certain extent, is a court of original jurisdiction, as it habitually takes cognizance of all such suits as the several bishops or inferior tribunals in the province may submit to its determination by letters of request. A final appeal from the decision of the court of arches lies to Appeal. the judicial committee of the privy council.

A jurisdiction somewhat analagous to that exercised over clergymen by the ecclesiastical courts is exercised over soldiers by courts martial. These courts,

Courts martial.

which exist solely for the trial of military offences committed by persons in the army or navy, regulate their proceedings according to the articles of war and the provisions of the Mutiny Act, which is re-enacted,

(a) Sancta Maria de Arcubus.

with but slight modifications, in each session of parliament. They are empowered to take evidence upon oath, and to inflict the necessary punishments for such offences, including judgment of death. Their procedure has, however, of late years been the subject of much comment, and it is probable that before long it will be subjected to considerable revision. So long, however, as courts martial act within their jurisdiction, taking cognizance only of such offences as are contrary to the articles of war, and inflicting such punishments as they are competent to inflict, the courts of common law will not interpose, either to question the propriety of their sentences, or to investigate the grounds upon which they arrive at their decisions. (590)

THE COUNTY COURT, AND SOME OTHER COURTS OF LIMITED JURISDICTION.

THE County court is a local tribunal, originally instituted by the stat. 9 & 10 Vict. c. 95, held at prescribed periods in the district assigned to it, and presided over by a single judge or his duly appointed deputy. So much of the business of this tribunal as is routine, or other than judicial, being principally performed by the registrar.

Jurisdiction of county court generally.

The county court has had conferred upon it by many statutes separate branches of jurisdiction, so that it administers not merely the common law, but likewise equity (a) and bankruptcy (b), and discharges duties in regard to probate and administration (c), as a court of admiralty (d), and otherwise. We shall here, however, treat only of the two most important branches of county court jurisdiction, viz., that which it originally possessed under the 9 & 10 Vict. c. 95, as extended by subsequent statutes (e), and that which was given to it by the 28 & 29 Vict. c. 99, amended by the 30 & 31 Vict. c. 142. (591)

(a) 28 & 29 Vict. c. 99; 30 & 31 Vict. c. 142, ss. 8, 9, 24-27.

(b) See particularly 32 & 33 Vict. c. 71, which comes into operation on January 1, 1870.

(c) 20 & 21 Vict. c. 77; 21 & 22 Vict. c. 95. (d) 31 & 32 Vict. c. 71; 32 & 33 Vict. c. 51. (e) 9 & 10 Vict. c. 95, s. 58; 13 & 14 Vict. c. 61, s. 1; 19 & 20 Vict. c. 108, ss. 23, 24; 30 & 31 Vict. c. 142.

(590) Courts martial for the regulation of the militia are held in the several States under local statutes. In their general features they resemble those provided for in the army of the United States; and when in actual service, the militia, like the regular troops, are subject to courts-martial, composed, however, of militia officers. The jurisdiction of such courts extends only to offenses against the military law, committed by individuals in the service. Smith v. Shaw, 12 Johns. 257; Mills v. Martin, 19 id. 7. See Ex parte Milligan, 4 Wall. (U. S.) 2. A want of jurisdiction either of the person, or of the offense, will render the members of the court and officers executing its sentence trespassers. Ib.; Brooks v. Adams, 11 Pick. (Mass.) 441; Wise v. Withers, 3 Cranch, 331; Ex parte Biggers, 1 McMull. (S. C.) 69; Mitchell v. Harmony, 13 How. (U. S.) 115. See Vanderheyden v. Young, 11 Johns. 150.

As to the jurisdiction of naval courts-martial over civil crimes committed at sea, see United States v. Mackenize, 1 N. Y. Leg. Obs. 371; Matter of Martin, 45 Barb. 142; S. C., 31 How. 228; Wilson v. Mackenzie, 7 Hill, 95; 1 Kent's Com. 341, note.

(591) County courts, of widely varying powers, exist in many of the States of the Union,