COOTE vs. Gilbert. "Thou art a thief and hast stolen a tree,' not actionable. taken in mitiori sensu. [77 b] Words spoken are to be then than Godb. 241. Rot. 3176. 422, 231. Ant. thief, and hast stolen a tree.' R. R. 10. Styl. 114. 2 Cro. 66, 114. ADRIAN COOTE brought an action upon the case against Brownl. 1. R.2. Adrian Gilbert, for saying 'thou art a thief, and hast stolen H. 10 Jac. a tree.' Issue not guilty, and found for the plaintiff; and yet it was adjudged against him, for the special Cro. 166, 39, words, though they come under the word and, are in 9. Action for words for saycommon sense to be understood to be but a verifying ing thou art a and making good of the general word thief, and tree shall be understood rather a tree standing felled, which is wood, and the law strains not to but to heal. Yet Towse cited a judgment in the Bench, (7 Jac.) given for the plaintiff upon these 'thou art a thief, and hast stolen trees out of I. orchard, and I have spent one hundred pounds and spend another to hang thee.' Which case we allowed not, though it were somewhat stronger than the cause at the bar. hurt 1 Rol. 51. Ex King's position of words accord sense. 2 Cro. scit lignum dum crescere nescit. 2 Cr. 154, 166, 231. Noy. 135. Thou art a thief, and hast stolen a tree,' not actionable. Words to be So note, words are taken best for the speaker, yea, and though some cannot stand with that construction, as here taken in mitiori the word stolen; so there is one rule for deeds, another for sensu. words, note that. (1) See ante p. 6, Miles v. Jacob, n. (1) OWEN US. HOLT. The Dutchy Court of Lancaster has no jurisdiction in respect of the person, nor of lands of the subject. [78] Action on the statute 21 H. 6. for not returning one burgess. 1 Ro. 29. Pl. 1. Post. 111. SAINT JOHN vs. SAINT JOHN. A party in pleading need not aver a fact which will be intended unless the contrary be shown by the other party. When there is no act passed or record made of a parliament, it is considered, in law, as no parliament, though the journal be full; but yet an action lies for a false return thither. SAINT JOHN brought an action of debt for forty pounds. against Saint John, bailiff of Stockbridge, upon the statute of 21 H. 6. for not returning him burgess of the same town, for the last intended parliament. And where the words of the statute are, that the sheriff shall send his precept to the mayor, if there be no mayor, then to the bailiff. The plaintiff declared, that the sheriff had made his precept unto the bailiff, without averring that there was no mayor. And now after a verdict for the plaintiff, this was moved in arrest of judgment. But the court was of opinion clearly, that it was good, for we shall not intend that there is a mayor except it be showed, and if there were one it should come properly in the other side. (1) And though the parliament was as none, because there was no act nor record of it, yet this action may lie, for there was a return of the writs, and many sittings. (1) See ante p. 71, Sherley v. Wood, n. (2.) Admiralty. 2 Saund. 260. DON DIEGO, &c. vs. JOLLIFF. Prohibition lies to the Admiralty for holding plea of matters not within its jurisdiction. Admiralty has no jurisdiction of any matters arising on any continent, port or haven, but only upon the sea. A libel in the Admiralty against three defendants, alleges that two of them, on the high seas, &c. with force and violence took two ships and their lading; that they were carried into Ireland and came to the hands of the third defendant;held that the charge against the third defendant stood by itself, as one at land, and a prohibition was granted. (1) DON DIEGO SERVIENTO de Acuna, ambassador leiger for Vide post. 112, the King of Spain, libelled in the Admiralty Court, as 212, 79. Cest case est denie estre ley per curiam. 13 R. 2. cap. 5. (1) This doctrine is denied in the case of Radley v. Egglesfield, 2 Saund. 260. That was an action on the statutes 13 R.2. c. 5. 15 R. 2. c. 3. Prohibition to for cause not Admiralty at land. procurator general for all his master's subjects, against [78 a] Sir Richard Bingley for two ships and their lading of divers kinds of goods of the subjects of the King of Spain the Admiralty generally, and not naming them, adduct. ad port de Mun- done at sea. ster, in the preface of the libel generally against them all, Court holds and then proceeds, and charged them severally thus; that plea of things Jolliff and Tucker captain, pirata in alto mari, more bellico dictas naves aggressi sunt, et per vim et violentiam took them, and that they were adductæ in partes Hiberniæ, and that they came to the hands of Sir Richard Bingley, and he converted them to his own use, (not saying where,) and refuseth to render them, being required, &c. Here- Post. 112. upon Sir Richard Bingley prayed a prohibition, and two days were given to the ambassador's counsel. And now Montague, the King's serjeant, for the ambassador, said, that he could not sue for these goods at common law, because he was not proprietary. Secondly, that piracy did not change property, no more 3 Cro. 685. than theft at land. Utra. Thirdly, that the cause begun at sea, and therefore originally belonged to the admiralty. But all this not- 2 Saund. 260. withstanding, the court with full and clear consent awarded a prohibition for that part of the suit only that concerned Sir Richard Bingley, allowing clearly that they might proceed against Jolliff and Tucker for that part of the suit that did distinctly concern them, because it was and 2 H. 4. c. 11. for suing in the Admiralty for a matter determinable at common law. The ship and goods in question, in that case, were taken from the defendant on the high seas by a Scotch privateer as prize, carried by the privateer into Scotland and there condemned in the Admiralty as prize. The privateer afterwards sold them to another who sold them again on the land in Scotland to the now plaintiff, who brought them into England in the river Thames, and the now defendant, the original owner, having notice of it, arrested the ship and goods in the Admiralty in England, and there libelled them. The question was whether the defendant was within the penalty of these statutes, and the court decided that he was not; that where a taking on the sea is the original foundation of the suit in the Admiralty, as it is here, the Admiralty may proceed to try and determine it, notwithstanding another claims property by sale made on land after such taking supposed to be made; that the principal matter in this case was the taking at sea, of which the Admiralty has jurisdiction, and upon that all the rest depends; and that the property of the plaintiff's could not be examined unless the taking be determined, which is of Admiralty jurisdiction. [78 b] [79] Mo. 814. Ant. 11. 1. 2. laid down upon the high sea. But because Sir Richard Bingley is not said to have had any hand in the first taking at sea, but a part by himself, in that the goods came after to his hands, and were converted by him to his own use, which is his particular charge, that part of the suit belongs not to the Admiral's Court, because it is not laid to be done at sea. Nay, more, it is so laid in the libel, as it must needs be understood to be done in the port of Munster, or at land in Ireland; for it is said, that they were brought ad partes Hiberniæ, (not maris Hibernici,) so it must be understood upon the continent, and then follows, that they came to Bingley's hand, which must be understood there, no other place being assigned. Now the whole court resolved clearly, that the admiralty of England can hold no plea of any contract, but such as riseth the sea. upon No, though it rise upon any continent, post, or haven in the world, out of the king's dominions, for their jurisdiction is limited by the statutes to the sea only; for the admiral is for the seas, and the court for maritime causes. And therefore if any stranger or other will seek justice at the hands of the king of England, for wrongs done him out of his dominions, he must seek it in those courts that have jurisdiction over the cause. Now if the cause rise at land, or in a port (for no port is part of the sea, but of the continent) then he cannot sue in the admiralty, but he must sue in the courts of common law, which have unlimited power in causes transitory. And then it must be so laid, that it may give jurisdiction. And this suit against Bingley is no other than a mere action of trover and conversion, as Bawtry and others of the serjeants confessed. Now to the objections. To the first. The cause being laid at land no man may, by a new found form of suit, draw it ad aliud examen, but he must submit his forms to the law, and not e contra. To the second. The original charge is not piracy, for though he calls them pirates, yet the charge of taking the goods is only per vim et violentiam, as the taking of the goods, and the proceeding is civil, not criminal. And if [79 a] it were laid piracy, all that should come in upon evidence, the trover and conversion would be the property, taking and conversion. And if it were piracy indeed, yet buying in an open market without fraud would defend the buyer. And now the question is not who hath right, but where the right shall be tried. To the third. Bingley's charge stands by itself, as one at land, and Justice Warberton said, that the death of a man in great ships might be tried either before judges at land by the common law, or before the admiral, by the special law in that behalf. And this prohibition was the rather allowed to Bingley, because it was prayed before any proceedings in the admiralty, further than the libel, which in itself warranted the prohibition. Vide residuum infra. 113, 114. 3. And note, that the same day Sir John Watts, Captain Newport, and others, prayed a prohibition in the cases of Monsieur Villiers, governor of Deepe, for spoil done at Cape de Vert, which they would have surmised to have been done at land at Guiney. But because it did not M. 9. Jac. 1 Syd. 65. Noy. appear so in the libel, and because they had suffered it to 67. 12 Co. 77. proceed to sentence, it was denied, and they left to their 2 Cr. 419. remedy upon the statute, if there were cause. 1 Ro. 80. 1 Cr. 97. 3 Cr. 595. PALMER US. POPE. Prohibition will be granted to the Admiralty for holding plea of an agreement put in writing in a foreign land, though the breach alleged be on the high seas, and though the libel alleged it to be infra jurisdictionem maritimam. PALMER libelled in the Admiralty for an agreement made at sea, for well transporting of sugars, againt Pope, and that the agreement was put in writing in Barbary, and that the sugars were spoiled at sea. And hereupon a prohibition was granted; but if the writing had not been at land, under seal, but a simple remembrance of the agreement, it had been otherwise; 48 E. 3. 2. F. N. B. 118. g. 10 H. 7. Temps E. 1. Avowry 192. 8 E. 2. 45 Co. B. M. 9 Jac. the Admiralty. |