Navigating the Lower Saint Lawrence in the 19th Century.
| Cases argued and determined in The Court of King's Bench for the District of Quebec. edited by George O'Kill Stuart, Esq., Q.C. Pages 21 - 39. | ||
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| Hamilton and others against Fraser and others. 20th February, 1811. | ||
A prohibition may issue from the Court of King's Bench to stay proceedings in the Court of Vice-Admiralty. A suit for salvage of the ship stranded on a sandbank in the River St. Lawrence, in locus in quo being infra corpus comitatus, held that the case was not one of Admiralty jurisdiction, and a prohibition granted to stay further proceedings therein. The River St. Lawrence, from the West end of Anticosti to the eastern line of the District of Three Rivers, is within the District of Quebec. In this case, a rule was obtained, calling on the defendants to shew cause why a writ of prohibition should not issue to stay proceedings in a certain suit in the Court of Vice-Admiralty brought by the present defendants, for work and labour, in the salvage of a certain ship and cargo, at the Batture of Mille Vaches, in the River St. Lawrence. The libellants in the Court of Vice-Admiralty, Fraser and others, alleged in the first count of their libel, "that the respondents, as owners and proprietors of a certain ship or vessel, called the Trio, on the third of November last, upon the high and open seas, within the jurisdiction of the Court of Vice-Admiralty of this Province, to wit, at the Batture of Mille Vaches in the River St. Lawrence, were indebted to the libellants in £2000 for the work and labour, care and diligence of the libellants before that time on the high and open seas aforesaid, done and performed by the libellants in the salvage of the said ship, and the cargo wherewith the said ship was forced and driven on shore and stranded, and after she was got afloat, to wit, on the third day of November last, at the Batture of Mille Vaches aforesaid, was loaded, and for money by the said libellant in that behalf laid out and expanded." And the libellants averred that "the respondents, being so indebted, promised to pay this sum of £2000 on the high and open seas and within the ebbing and flowing thereof, to wit, at the Batture of Mille Vaches aforesaid." This promise is repeated in the second count against the respondents "as agents and consignees or factors of the ship Trio," is laid in a third count by way of quantum meruit, the respondents being therein charged as "owners and proprietors of the ship Trio," and is again in a fourth count by way of quantum meruit, the respondents being therein charged as "agents and consignees or factors of the ship Trio". The locus in quo with respect to the work and labour performed by the libellants and to the promise made by the respondents being covered in each of these counts to be "on the high and open seas and within the ebbing and flowing thereof, to wit, at the Batture of Mille Vaches aforesaid". To this libel, the respondents put in a plea to the jurisdiction of the Court of Vice-Admiralty averring the Batture of Mille Vaches (the locus in quo) to be "in the County of Northumberland, in the District of Quebec, in the Province of Lower Canada, without the jurisdiction of the Court of Vice-Admiralty and within the jurisdiction of this court." And issue having been joined upon this point, the plea to the jurisdiction by the Court of Vice-Admiralty was overruled without the adduction of any proof whatever on either side. These facts were set forth in the suggestion and verified. 1st. By sworn copies, of the libel, of the plea to the jurisdiction, of the replication, and of the decree overruling the plea. 2ndly. By affidavits, in which it is sworn the place called the Batture of Mille Vaches, at or near a certain part of the northern bank of the River St. Lawrence, upward of 100 miles from the mouth of the said River and from any part of the high seas, and within the District of Quebec, and not elsewhere." Sewell, Chief Justice delivered the opinion of the court. Upon mature consideration, we are of opinion, that the motion that must be granted, and a prohibition awarded to the Court of Vice-Admiralty. This decision will restrain the Court of Vice-Admiralty from the exercise of a jurisdiction to which it has formally laid claim, and we are on this account desirous to make the principles of our judgment distinctly known, I shall therefore, take occasion to state them, but as the present is the first case in which a prohibition has been awarded to the Court of Vice-Admiralty out of this court, I shall show in the first instance the power and the authority of the Court of King's Bench to award this writ. Every Court of limited jurisdiction must be subject to control, for where there is no control there can be no limited jurisdiction. In England, all such Courts, (and among them the Admiralty,) are superintended and restrained within the proper bounds of their authority, by the superior Courts of Westminster Hall. And in the King's Colonies in America, the same power, with respect to the Court of Vice-Admiralty has been exercised by the superior Courts of common law. In Key and Hubbard vs. Pearse, (a) Pearse libelled in the Vice-Admiralty Court of New York, and the plea of Key and Hubbard to the jurisdiction being refused, they obtained from the Court of King's Bench of that province, a writ of prohibition. The issue in the cause was, "whether the ships seized was prize or no prize", a question over which the Court of Admiralty holds an unequivocal and exclusive jurisdiction, and it was accordingly determined at the cockpit, that the prohibition had been improperly issued, but the general authority of the Provincial Court of King's Bench, to award the writ of prohibition, was not at all doubted. The Lord Chief Justice Lee, in delivering the judgment, said: "As this is a question upon prize, I think the Common Law Court had no right to prohibit," and Lord Mansfield, (referring to this decision,) afterwards said, in the case of Lindo vs. Rodney: - "This case (Key & Hubbart vs. Pearse,) was argued, and could only be argued as a mere question of law, just as if it had arisen in Westminster Hall, upon a capture in the River Thames, within the body of a county. The courts of law in the Colonies prohibit the Court of Admiralty just as the courts of Westminster Hall do here."(a) The power of prohibiting the Court of Vice-Admiralty when it exceeds the limits of its jurisdiction, must then be vested in some or other of His Majesty's ordinary Courts of Law in this Province, and as the Courts of King's Bench and of Appeals are the only Courts of ordinary jurisdiction in the Province, we have to inquire in which to them it is vested. For this purpose it must be remarked, that the distinction between the Writ of Prohibition and the Writ of Appeals is essential. When a Court has jurisdiction, and gives a wrong sentence, that sentence is the subject matter of appeal, and not of prohibition; but if it has not jurisdiction, prohibition is the legal remedy. The Writ of Appeal removes the cause into the Superior Tribunal for investigation upon the merits of the case itself, in reference to the parties and their respective rights. The Writ of Prohibition does not remove the proceedings, nor does it lead to any investigation of the merits, except in so far as they tend to elucidate the question of jurisdiction. Now, this jurisdiction of the Court of Appeals is limited by statute,(a) and extends only "to causes appealed from civil jurisdiction wherein by law an appeal is allowed;" so that the Court of Appeals cannot take cognizance of the proceedings of the Admiralty, unless it be by a Writ of Appeal, and it is certain that no appeal is by law allowed from any decision of the Court of Vice-Admiralty, except to the High Court of Admiralty in England, or to the Court of his Majesty in Privy Council.(b) It follows, that the Provincial Court of Appeals has no jurisdiction whatever with respect to the Admiralty. A Writ of Prohibation to the Admiralty cannot therefore, issue out of that court, and consequently must issue out of the Court of King's Bench. To what I have said upon this part of the subject, I shall add, that the power and authority of this Court to award the Writ of Prohibition, and to award the Writ of Certiorari, (which we daily issue,) stand in principle upon the same ground. Both Writs are designed for the control of limited Tribunals, to restrain and keep them within the true bounds of their respective jurisdiction, and both are equally necessary for preserving inviolate the legal distribution of judicial authority.(a) The general question which arises out of the facts set forth in the suggestion and in the affidavits fyled in support of it, is this: "Whether the Court of Vice-Admiralty has jurisdiction in a case of salvage arising and entirely completed within the limits of the Province?" And we are of opinion, as already intimated, that it has not. The ground of this opinion shall now be shown, and to this end, certain propositions, on which we rely, shall be stated with the authorities on which they are founded. We hold then, as a general rule: 1. That according to the Civil and Maritime law of England, the High Court of Admiralty of England, cannot hold plea of any matter arising within the jurisdiction of the ordinary Courts of Law; and that it cannot hold plea of any matter arising within the limits of the Realm, or Kingdom of England, because the limits of the jurisdiction of the ordinary Courts of Law, are co-extensive with the limits of the Realm. 2. That certain cases are exceptions to this general rule, but that salvage arising and completed within the jurisdiction of the ordinary Courts of Law is not one of excepted cases. 3. That the Provincial Court of Vice-Admiralty has no greater or other authority than that of the High Court of Admiralty of England. It will follow from these propositions (when established,) that as the High Court of Admiralty of England cannot, so the Provincial Court of Vice-Admiralty cannot hold plea of any matter of salvage arising and completed within the jurisdiction of the ordinary Courts of Law, and consequently that the Provincial Courts of Vice-Admiralty cannot hold the plea of any matter of salvage rising and completed within the limits of the Province, if the limits of the jurisdiction of the ordinary Courts of Law of the Province be co-extensive with the limits of the Province. I proceed to the consideration of the first proposition: It is laid down as a general rule that the jurisdiction of the instance Court of Admiralty of England is confined to matters arising on the high seas,(b). It is true that it does not seem to be agreed what shall be taken to be the high seas in all cases, but it is equally true that a river, creek or haven within the limits of any country, constituting a part of the Realm or Kingdom of England, is clearly held not to be a part of the high seas, and that the Instance Court of Admiralty cannot take cognizance of any matters made or done in any such river, creek or haven, because all matters arising there may be heard and determined in the ordinary Courts of Law. "It is the rule," says McDouall, "in the law of England, that the Admiral's jurisdiction is confined to matters arising on the high sea, and therefore he cannot take cognizance of contracts &c. made in any river, haven or creek within England, for those are triable by the Common Law. By the Statue 13, Rich. II. c. 5., it is enacted, "That the Admirals and their Deputies shall not intermeddle from henceforth of any thing done within the Realm, but only of a thing done upon the sea." By the Statue 15, Rich. II. c. 8, it is enacted, "That all manner of contracts, pleas, and quarrels, and all other things rising within the body of Counties, as well by water as by land, and also, of wreck of the sea, the Admiral's Court shall have no matter of cognizance, power or jurisdiction, but all such manner of contracts, pleas and quarrels, and all other things rising within the bodies of Counties, as well by water as by land as afore, and also wrecks of the sea, shall be tried, determined, discussed and remedied by the Law of the land, and not before, nor by the Admiral nor his Lieutenants in any wise." And by the Statute 2, Henry IV, c. 11, it is enacted as follows, viz: "Whereas in the Statute made at Westminster the 13th year of the said King Richard, among other things it is contained, that the Admirals and their Deputies shall not intermeddle from thenceforth to any thing done within the Realm but only of a thing done upon the sea, according as it hath been duly used in the time of the noble King Edward, grandfather to the said King Richard, now our said Lord the King wills, and granteth that the said Statute be firmly holden and kept and put in due execution." Such are the statutes, which according to Stamford, are to be considered as statutes declaratory of the Common Law. "Per common ley (says he,) devant le Statut anno 2do Henrici Ivs. c. 11. L'Admiral n'avé jurisdiction, sinon sur le haut meer," and by a series of decisions, the provisions which they contain, are adjudged to be the Law Civil and Maritime of England. In Cradock's case, it was said "the intent of the Statute 13, Rich. II, was to prevent the Admiral's Court from holding plea of any thing happening within the Realm," and a prohibition was granted.(a) In Leigh vs. Burley, a prohibition was awarded because, per curiam; " the contract was made on land and infra corpus comitatus, and therefore the Admiral can have no jurisdiction, for the statutes 13 and 15 of Richard II, and 2nd Hen. IV. c. 11, are that the Admiral shall not have conusance but of things done super altum mare and Cook, (Justice) said when the place is covered over with salt water and is not of any county or town there, est altum mare, but where it is within any county, there is not altum mare; and trial shall be per vicinetum,"(b). In the case of the Lord Admiral vs. Linsted, the suit was instituted in the Admiralty for a ship as flotsam, left near a harbour in Norfolk, and it was agreed that flotsam ought to be tried in the Admiralty; but a prohibition was ordered per curiam, "because the suggestion was that the dereliction was infra corpus comitatus."(c) In the case of Culliver and Brand, a ship was wrecked by tempest in a creek of the sea, infra corpus comitatus of Dorset. The sailor upon pretence that the goods in the ship were bona peritura, procured a commission of sale out of the Court of Admiralty, whereupon the owner, to prevent the sale, brought a supersedeas, and upon producing the libel to the Court, a prohibition was granted, because the cause of action did arise infra corpus commitatus and so the Admiralty cannot hold plea thereof.(d) In Coke's report of the anonymous case in the Reign of Edward I, it is said, the sea within the jurisdiction of the Admiral is out of every County, for if the sea be in any County then pais may come from thence. The Admiral hath jurisdiction when the common law cannot give remedy.(a) Upon the reference made in the 7th of Jac. I. in the case of Sir Richard Hawkins, Vice-Admiral of Devon, to the Chief Justices of the King's Bench and Common Pleas, and to the Chief Baron of the Exchequer, it was by them resolved "that by the Common Law the Admiral ought not to meddle in any thing done within the Realm, and only with things done upon the sea, and this," say they, "appeareth fully by the Statutes 13, Rich. II, c. 5, and 2d Hen. IV. c. II,"(b) In further proof of the present proposition, I refer to the cases which are cited by "the Judges of the Realm," in their answers to the articuli Admiralitatis, (c) of which the first answer is as follows: "By the laws of this Realm, the Court of the Admiral hath no conusance, power or jurisdiction of any man, nor of contract, pleas, or querele, within any County of the Realm, either upon land or the water, but every such contract, plea or querele, and all other things rising within any County of the Realm, either upon land or the water, and also, wrecks of the sea, ought to be tried, determined, discussed, and remedied by the Laws of the land, and not before, or by the Admiral, nor his Lieutenant, in any matter, so as, it is not material whether the place be upon the water infra fluxum et refluxum aquæ, but whether it is upon any water within any county. Wherefore we acknowledge that of contracts, pleas, and quereles made upon the sea or any part thereof is not within any County, the Admiral hath and ought to have jurisdiction, and no precedent can be shown, that any prohibition hath been granted for any contract, plea or querele concerning any maritime cause done upon the sea, taking that only to be the sea within the Admiral hath jurisdiction, which is before by law describe to be out of any County.(a) In later times, the same opinion has uniformly been held in the Courts of Westminster Hall. In the Common Pleas, in Ross vs. Walker,(b) Ross, who was a pilot, was sent for to Gravesend to come on board the ship Oxford, being in sea reach, who accordingly went on board of her there, and piloted her from thence to her mooring at Deptford, and for his wages due to him upon that account, he instituted a suit in the Admiralty, upon which a prohibition was moved for upon a suggestion, that both the contract and the work done, were within the body of the County, and an affidavit that sea reach is within the body of the County, and a prohibition was ordered, and per curiam; "There is no instance to be found where the contract was at land, and to do the work on board within the body of some County, that the Common Law Courts have ever permitted the Admiralty to have the jurisdiction."(b) In Velthasen vs. Ormsley,(c) on the authority of the decision in Violet vs. Blague,(d) it was admitted on both sides, that the Admiralty had no jurisdiction in the case, because the running foul and breaking of the libellants' vessel had happened on the Thames, within the County of Kent, and a prohibition was accordingly awarded by Lord Kenyon, and the Court of King's Bench, and delivering the judgment of the same Court in Lindo vs. Rodney, Lord Mansfield said, "the view, purport and tendency of the Statute is to prevent the Admiralty from trying matters triable at Common Law. These Statutes don't exclude the Common Law in any case, and they confine the Admiralty, by the locality of the thing done, which is the cause of action, it must be done on the high seas, if done in ports, havens or rivers, within the body of a County of the Realm, the Admiralty is excluded."(a) From these authorities it is certainly clear as a general rule, that the High Court of Admiralty of England has no jurisdiction over any matters arising within the Realm, and that the reason of this rule is, that such matters having arisen within the jurisdiction of the Common Law Courts, must be their tried. It is admitted by our second proposition that certain cases are exceptions to this general rule, but we hold that salvage arising and completed within the jurisdiction of the ordinary Courts of Law, is not one of the excepted cases. Sueing for mariners wages, founded on contracts, and for money due upon hypothecation bonds, which have been executed within the jurisdiction of the ordinary Courts of Law, are familiar instances of such exceptions, confirmed by recent decisions in Howe and Napier,(b) and Menetone and Gibbons,(c) which have been cited at the bar. But these exceptions, the former is said (by Lord Mansfield,) in the case of Howe and Napier, to be founded on services performed at sea,(d) and the latter is said by Powell, (Justice,) in the case of Johnson vs. Shepney,(a) to be founded on the principle, that the master must have power to take up money during a voyage upon hypothecation to supply the necessary wants of his ship occasioned by stress at sea.(b) But independent of these considerations, it must be remembered, that the proof of one exception is no evidence of the existence of another. Our inquiry is, whether salvage arising and completed within the jurisdiction of the ordinary Courts of Law be also an exception? And if it be, it was incumbent on the libellants to shew it, and this they have not done; not a single authority of any description has been produced to contradict, in this respect, the general rule or the assertion of Abbott that the Admiralty has jurisdiction if the salvage be performed at sea,(c) and not otherwise. I proceed to shew: 3. That the Provincial Court of Vice-Admiralty has no greater or other authority than that of the High Court of Admiralty of England. The Courts of Vice-Admiralty in the British American Colonies are branches of the jurisdiction of the Admiral of England, and appeals from the decisions of these Vice Courts are therefore brought before the High Court of Admiralty of England not only in ordinary cases, but even in revenue cases, in which a jurisdiction is given to them by statute without any provision whatever for appeals.(d) In this Province, and as in all others belonging to His Majesty, the Judge of the Court of Vice-Admiralty holds his office by commission from the High Court of Admiralty in England, by which, under the Seal of that Court, he is appointed "Commissary in Lower Canada." It might, therefore, be sufficient to say, that as the Courts of Vice-Admiralty are thus emanations of the High Court of Admiralty of England, their jurisdiction cannot exceed that of the Court from whence they originate. The inferior cannot possibly be more than equal to the superior; nor can the Deputy (and they are Deputies of the Admiral) possess more power or authority than the principal from whom their whole power and authority is derived. I shall, however, have recourse to the commission by which the Judge of the Court of Vice-Admiralty in this Province is appointed, which I find upon research to have been uniformly the same from the conquest to the present time.(a) By that commission, the power granted to the "Commissary" or a Judge of the Provincial Court of Vice-Admiralty, is "to take cognizance of, and proceed in all causes, civil and maritime, and in complaints, contracts, &c., and such causes, complaints, contracts, and other the premises above said, or any of them, (however the same may happen to arise, be contracted, had or done,) to hear and determine according to the civil and maritime law and customs of the High Court of Admiralty of England."(b) And this to me is conclusive, for since the same rules must necessary obtain in all courts whose proceedings are governed by the same laws and customs, it is plain that the Provincial Court of Vice-Admiralty can have no greater or other authorities, power or jurisdiction, than that of the High Court of Admiralty; therefore, as the civil and maritime law and customs of the High Court of the Admiralty do not enable it to take cognizance of any case of salvage except such as arise on the high seas, the same rule must here obtain in the Court of Vice-Admiralty, and as according to the same civil and maritime laws and customs, any place which is within the limits of the jurisdiction of the ordinary Courts of Law is not part of the high seas, it follows that neither the High Court of Admiralty, nor the Provincial Court of Vice-Admiralty cannot lawfully take cognizance of any case of salvage arising in any such place. It is set forth in the libel that the salvage was performed on the high seas. But, by the suggestion, it is averred, and by the affidavits filed with the suggestion it is sworn, that it was performed "at the Batture of Mille Vaches, within the District of Quebec, within the jurisdiction of this Court, and not elsewhere." In Ross and Walker, it was said by the Court "It is and must be laid in the libel that the contract and the work were both on the high seas, yet we must now take the suggestion to be true, and that both the contract and the work were at land."(a) It is not therefore necessary, perhaps, at this time to shew why the Batture of Mille Vaches (which is the locus in quo in this case, and is upwards of 100 miles above the west end of the Island of Anticosti,) is within the limits of the District of Quebec, and within the jurisdiction of the Court. But as we deem it right in a case of this description to state fully the entire grounds of our opinion, I shall do so, and for this purpose, I shall detail in chronological order, the several Public Instruments and Acts, which relate to the boundaries of this Province and to the limits of the three Districts of which it is composed. Having first premised, that by the 2nd clause of the Provincial Statute 34, Geo. III. c. 6., this court has original jurisdiction and power in this District, "To take cognizance of, hear and determine all causes as well civil as criminal, except those which are purely," that is, exclusively, "of Admiralty jurisdiction." The first Instrument in order is the Royal Proclamation of the 7th of October, 1763, which thus describes the Government of Quebec, "bounded on the Labrador Coast by the River St. John, and from thence by a line drawn from the head of that River through the Lake St. John to the south end of the Lake Nepissim, from thence the said line crossing the River St. Lawrence and the Lake Champlain in 45 degrees of north latitude passes along the high lands which divide the rivers which empty themselves into the said River St. Lawrence from those which fall into the sea, and also along the north coast of the Baie des Chaleurs and the coast of the Gulf of St. Lawrence to Cape Rosier, and from thence crossing the mouth of the River St. Lawrence by the west end of the Island of Anticosti, terminates at the aforesaid River St. John. The next Act is the Statute 14, Geo. III. c. 83. usually called the Quebec Act, by which it is enacted, "That all the territories, islands and countries in North America belonging to the crown of Great Britain, and bounded as therein described, and all such territories, islands and countries which have since the tenth day of February 1763, been made part of the Government of Newfoundland, be, and they are hereby during his Majesty's pleasure annexed to and a part and parcel of the Province of Quebec as created and established by the said Royal Proclamation of the 7th of October, 1763." The next Instrument in succession is the Order of His Majesty in His Privy Council of the month of August, 1791, by which under the power reserved to him by the 14th of Geo. III. c. 83, recognized in the Statute 81, Geo. III. c. 31, he divides the Province of Quebec into two distinct Provinces to be called the Province of Upper Canada and the Province of Lower Canada by separating the said two Provinces according to the following line of division, that is to say: "To commence at a stone boundary, on the north bank of the Lake St. Francis at the Cove west of Pointe-au-Baudet, on the limit between the Township of Lancaster and the Seigneurie of New Longueuil, running along the said limit, in the direction of north forty-four degrees west to the western most angle of the said Seigneurie of New Longueuil, thence along the northwestern boundary of the Seigneurie of Vaudreuil running north twenty-five degrees east until it strikes the Ottawa River, to ascend the said River into the Lake Temiscaming, and from the head of the said Lake by a line drawn in due north until it strikes the boundary line of Hudson's Bay." There are no other Public Instruments or Acts, which relate to the boundaries of this Province, except those which I have cited, and from these, it is evident that the River St. Lawrence upward from its mouth, that is, from a line drawn at the west end of the Island of Anticosti from Cape Rosier on the south shore to the mouth of the River St. John on the north shore, was originally included within the limits and constituted a part of the Province of Quebec, as created and established by His Majesty's Proclamation of October, 1763, and that all which constituted the Province of Quebec so created and established is now the Province of Lower Canada, except what forms the Province of Upper Canada, which commences at the line of division declared by His Majesty's Order in Council of the month of August, 1791, some miles above the City of Montreal. As to the limits of the District of Quebec, it is necessary only to refer to the first section of the Provincial Statute 34, Geo. III. c. 6, by which it is enacted, "That the Province of Lower Canada shall consist of three Districts, to be called the District of Quebec, the District of Montreal, and the District of Three Rivers; that the District of Quebec will be bounded to the westward by the eastern line of the Seigneurie d'Orvilliers, as far as it extends, and thence by a due north-west line to the northern boundary of this Province, on the north side of the River St. Lawrence, and by the eastern line of the Seigneurie of Saint-Pierre-les-Becquets as far as it extends, and thence by a due south-east line to the southern boundary of this Province on the south side of the River St. Lawrence, and the said District of Quebec shall comprehend all that part of this Province which lies to the eastward of the before mentioned western boundary line of the said District." From these Public Instruments and Acts, it is apparent that the Batture of Mille Vaches being very far above the west end of the Island of Anticosti, and as the line drawn from Cape Rosier to the River St. John, is within the limit of this Province of Lower Canada, and being also very far below the eastern lines of the Seigneuries of d'Orvilliers and St-Pierre-les-Becquets, is also within the limits of the District of Quebec, so that all causes there arising are infra corpus comitatus and within the jurisdiction of this Court. If the parties in this case are not satisfied with this opinion, they know that they are not bound by the present proceedings, that is, particularly, in the power of the libellants, to compel the respondents to declare in prohibition, to perfect an issue upon the matter contained in the suggestion, to obtain the judgment of this Court on that issue, to appeal from that judgment to the Provincial Court of Appeals, and ultimately to obtain the decision of His Majesty, in His Privy Council, upon the whole case. Rule Absolute.(a) (a) Douglas 608, 619 in notis, 2 Chalmer's opin. 207-215, 34 Geo. III. C. 6. S. 23. The "Appel comme d'Abus," and the "défense d'exécuter," are in fact prohibitions. See the introduction to the Edition of Denzart, by Lecamus, 73. L. G. Den. Verb. "Défense d'exécuter," s. 1, No. 1. 2. And 3. Vol. 6. P. 77. P. 78. 2. Brownlow, 37. 12. Rep. 80. 4. Inst. P. 134. Douglas, 615. 6 Mod. 79. Records in the office of the Secretary of the Province. 2. Wils. Rep. 265. Since this decision, prohibitions have been awarded in the Court of King's Bench at Quebec, in the following cases: Murphy vs. Howard, the case of the Camillus for damage done by collision in the port of Quebec, in 1823. Willis vs. Soucy, for pilotage in the River St. Lawrence, in 1827. Garret vs. Morgan, Master of the Onandago, June 12, 1834, for the recovery of the capitation tax paid in Ireland. Hurley and another vs. Short, for a loss of passenger's goods at Grosse Isle, June 1834. In a Statute passed in the United Kingdom, 2, Will. Ivs. c. 51. intituled "An Act to regulate the practice and the fees in the Vice-Admiralty Courts abroad, and to obviate doubts as to their jurisdiction, the following clause is contained: "Whereas, and in certain cases, doubts may arise as to the jurisdiction of Vice-Admiralty Court in his Majesty's possessions abroad, with respect to suits for seaman's wages, pilotage, bottomry, damage to a ship by collision, contempt in breach of the regulations and instructions relating to His Majesty's service at sea, salvage and droits of Admiralty; be it therefore enacted, that in all cases where a ship or vessel, or the master thereof, shall come within the local limit of any Vice-Admiralty Court, it shall be lawful for any person to commence proceedings in any of the suits herein before mentioned in such Vice-Admiralty Courts, not withstanding the cause of action may have arisen out of the local limits of such Court, and to carry on the same in the same manner as if the cause of action had arisen within the said limit." This enactment does not seem to remove, in any way, the doubts therein referred to. It would have been desirable that this clause of the Statute had been more clear and explicit than it is. No question has yet arisen in the Courts here upon the construction to be given to it. (b) 3. Black. Com. 69. 1. Bacon, 623. Owen, 122. 13. Rep. 52. 2. Wils. 265. 4. Burr. 1944. Ib. Lister vs. Baxter, Str. 695. "By the Commission" (says the Report of the Governor and Council of Quebec, to His Majesty, drawn by Baron Mazeres, the Attorney General, in 1760.) "it is evident your Majesty has introduced into this Province all the laws of your Majesty's English Court of Admiralty, in lieu of the French laws and customs by which maritime causes were decided in the time of the French government."Mazeres collection, p. 19. (c) 2. McDouall's Ins. 543. Siderfin, 178. P. 9. 4. Inst. 136- 147. 3. T. Rep. P. 315. 3. T.R. 269. Abbot, 2. Ed. 357. (d) 2. Sid. 81. Cro. Jac. 511. 4. Burr. 1950. 2. Robinson's Rep. 246-248. note (a). |
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| Quebec Gazette #2408. 16/05/1811. Page 2, Col 2B. | ||
| GALLANT ACTION. | ||
|
Captain Hodgson, of the brig Fortune, who arrived here yesterday
from London, was attacked on the 13th of April, in position about
53 north and 20 west, by a French privateer of 16 guns, and about
120 men, which he most gallantly contended with for an hour and
twenty minutes, and finally beat off. During this time his colours
were twice shot away, and then nailed to the mast. The enemy made
three attempts to board, and were each time repulsed; the boarders
being killed in the chains and shrouds, or precipitated into the
sea, where they were drowned. The Fortune having sustained
considerable damage in her rigging and spars, and as her crew was
decreasing fast, would probably have been captured, had she not
fortunately shot away the enemy's fore top-mast, at which time the
Fortune's crew gave three cheers, and the privateer sheered off.
Captain Hodgson gave her a parting broadside, which was not
returned, and then lay by, and began to repair the damage, and to
clear the ship for a renewal of the action, in case the enemy
should think proper to renew it. But in two hours afterwards the
privateer disappeared to leeward, and Captain Hodgson proceeded on
his voyage. Captain Hodgson speaks in the highest terms of the
bravery of his crew, and of the great assistance he received from
his passengers during the action. The loss unfortunately sustained
by the Fortune in this action is as follows: John Wilson, John
Dickson, English seamen, killed: and Anthony Oliver, a foreigner,
also killed: Alexander Greig, of this city, a passenger, wounded
in the knee; Mr. Saunderson, also a passenger, wounded in the arm,
and three men slightly wounded. The Fortune mounts eight guns and two swivels; and the number of persons on board, including her officers, three passengers and eight boys, amounted to nineteen. The privateer, lost, killed and drowned between 20 and 30 on boarding, but the number killed on board of her by shot from the Fortune, could not be ascertained. |
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| Quebec Gazette #2409. 23/05/1811. Page 2, Col. 4T. | ||
| Whereas I, Eneas Riopelle of Quebec, shipwright, did on Wednesday last the 15th day of May instant, enter the shipyard of Messrs. Flower, Newberry & Capper, at St. Patrick's Hole and there interrupt the business thereof, and demean myself with great violence and outrage, and upon my being required to depart by Mr. Samuel Finch, master builder there, in pursuance of his duty, did violently assault him, and otherwise exceedingly misbehave myself for which the said Messrs. Flower, Newberry & Capper, have very justly commenced a prosecution against me. And whereas they have, at the intercession of my friends, consented to relinquish the same, on my publicly asking pardon for the offence which I have committed, promising never to be guilty of the like again, and paying the costs of such prosecution; I do therefore, and as a warning to others; hereby humbly ask pardon of the said Messrs. Flower, Newberry & Capper, and the said Mr. Samuel Finch, their master builder, accordingly, and faithfully promise never to offend again in a similar manner. As witnesses my hand this 20th day of May, 1811. | ||
| The mark of | ||||
| X | ||||
| Eneas Roipelle | ||||
| G. R. Bossé©2001-05 | Page 2 | Chapter 1811 |
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