account against the other Secundum Legem Mercatoriam but by the Rule of the Common Law if two men be joyntly seized of other goods the one shall not call the other to account for the same 2. If two Merchants have a joynt interest in Merchandizes if one dye the surviver shall not have all but the Executor of the party deceased shall by the Law-Merchant call the surviver to an account for the Moity whereas by the Rule of the Common Law if their be two joynt Tenants of other goods the surviver Perjus accrescendi shall have all 3. In an Action of Debt upon a simple Contract which is without a Deed in Writing the Defendant by the Common Law may wage his Law That is he may barr the Plaintiff from his Action by taking an Oath that he doth not owe the Debt but when one John Cumpton Merchant brought an Action of debt Secundum Legem Mercatoriam against another Merchant upon a Contract without Deed and the Defendant would have waged his Law he was not permitted so to do and the Judgement was given for the Plaintiff It is not hereby intended that the Courts of Common Law cannot or do not take notice of the Law-Merchant in Merchants cases but that other things likewise considered it might be thought reasonable if they so desire to allow them the choice of that Court where the Law-Merchant is more respected than to confine them to other Courts where another Law is more predominant Besides there may be danger of doubt thereof because those things are not approved for proofs at the Common Law which are held sufficient in the Admiralty amongst the Merchants for as Sir Iohn Davies further observes At the Common Law no mans Writing can be pleaded against him as his Act and Deed unless the same be sealed and delivered But in sutes between Merchants Bills of Lading and Bills of Exchange being but ticquets without Seals Letters of advice and Credence Policies of assurance Assignations of Debts all which are of no force at the Common Law are of good credit and force by the Law-Merchant To which may be added what Malines observes That the bearer of such Bills by the course amongst Merchants shall be admitted to demand and recover the Contracts without Letters of Atturney which is not admitted in the Common Law It is moreover considerable That the Law of the Sea looks one way when the Common Law looks another As for instance A Ship is Freighted or hired for a Voyage to the Indies at 20 l. per moneth by Charter-party it appeareth that having been eight Moneths in the Imployment of the Merchant who Freighted her before she makes any Port with her Lading she perisheth in the Sea in this case by the Common Law as it hath been averred the Owner of the Ship ought to have Freight for eight Moneths but by the Law of the Sea which hath alwayes been allowed The Merchant losing his goods the Owner loseth his Freight Again if the Owner loseth his Freight the Mariner although he escape loseth his Wages for the time he served which happily would not be thought so if he sued at the Guild-Hall for the same Thirdly for encouragement and advantage of those who use Navigation and Trade by Sea it is considerable That in the Court of Admiralty one and the same Action may be brought against diverse and several persons undertaking the same business as when many joyn in subscription to a Policy of assurance but if a sute be brought at the Common Law every man must be sued severally which the Parliament in the Act concerning assurances held inconvenient and in the like manner divers and several Persons may joyn in the same sute as Mariners for wages at a small charge to themselves with little prejudice to the Masters or Owners which are sued and obtain a Decree or Order all together whereas when they sue at the Guild-Hall every man sues severally to the great charge of every particular and to the excessive dammage of the Masters or Owners if Judgements be given against them Besides the inconvenience of which the Statute of the 28. of Hen. the 8. cap. 15. takes notice That if Mariners or Shippers which by reason of their often Voyages and Passages must depart without long tarrying and protracting of time be enforced to attend the ordinary terms of the Common Law Fourthly the Court of Admiralty for the conveniency and dispatch of Merchants and Sea-mens causes admits of proofs which the Courts of Common Law do not allow for in that Court according to the Civil Law the Plaintiff may be relieved by the Defendants answer upon Oath which in the ordinary Courts of the Common Law is not afforded Again whereas in those Courts the Evidence must be produced at the Barr before the Jury Sea-men and Mariners which are many times necessary witnesses for the reason before exprest cannot be present without great prejudice to themselves and the Trade of the Kingdome But in the Admiralty Court they may be produc'd at any time after the sute is begun and their Examinations being taken in Writing they have liberty to follow their own and the common occasions Moreover many times in causes concerning Navigation and Trade by Sea no proof can be made but by Witnesses remaining in Forein parts to which the Writs of the Common Law do not extend but those Witnesses by Commission out of the Admiralty Court are usually sworn and examined by Magistrates in those places and their examinations so taken are allowed for sufficient proof upon return Divers other instances might be given by which it would appear that the Court of Admiralty can give redress in Sutes concerning Navigation and Trade with more conveniency than the Courts of Common Law but these considered and how much it concerns the good of the Kingdome and those who sâ—pport Navigation and Trade may be sufficient to discover which Court may be best justified in proceeding in causes of that nature What inconvenience may follow both to the Private and Publick by the interposing of the Courts of Common Law and by obstructions made unto the Admiralty in such businesses may appear in one particular that is concerning Charter-parties and Freight due for imployment of shipping There is but one instance given of a Sute brought at the Common Law upon a Charter-party viz. the 28 of Elizabeth which was on the Merchants part for breach of Covenant viz. for not staying in a Port of discharge so many dayes as were agreed upon for which the Owner was condemned in 500 l. without any respect to the Loss or Damage which the Merchant had sustained And if it be considered how many clauses there are in Charter-parties and Covenants of things to be performed for which the Owners are bound under a general penalty if upon every breach advantage should be taken in extremity no man would have great comfort in hiring out Ships to the Sea And it may be observed that
alwayes that if any Merchant stranger or other finde himself grieved or damnified by negligent keeping of his Wares or Merchandises or by long delaying or protracting of time in making of the Voyage by the said Owner his Master or any of the Mariners of the said Ship otherwise than shall be agreed in or by the said Charter-party not having been leâ—ten by wind or weather he shall and may have his remedy by way of complaint before the Lord Admiral of England for the time being his Lieutenant or Deputy against the said Owners or Masters who shall or may summarily and without delay take such order therein as shall be thought to their discretions most convenient and according to right and justice in that behalf It is true that the Cases exprest are for the Merchants to recover satisfaction for delay or damage done to their goods according to the Charter-party from the Owners and the Masters of Ships and it were very unreasonable if the Master or Owner having dâ—ely performed their Voyage might not seek the like remedy before the same Judge against the Merchants not observing the Charter-party either in not Lading their goods within the time appointed or not paying the Freight according to agreement in the same contained and exprest the causes being hinc inde reciprocal and it being sometimes held an absurdity Illud quod in uno eodemque judicio terminari potest apud diversos Iudices ventilari The Statute of the 43 of Elizabeth Chap. 12. declares That whereas differences growing upon Policies of Assurance had been ordered by discreet Merchants approved by the Lord Mayor who did speedily decide those Causes until that of late years divers persons did withdraw themselves from that arbitrary course and have sought to draw the parties assured to seek their monies of every several assurers by Sules commenced in her Majesties Courts to their great charges and delay thereupon it was enacted that a Commission should be granted giving power to certain Commissioners the first whereof is the Judge of the Admiralty to order and decree such Causes in a brief and summary course without formalities of pleadings and proceedings Malines affirms that he amongst others was one who upon experience of the great inconveniences which followed upon the drawing of those Causes to the Courts of Common Law solicited the Parliament to pass that Act. The Legal authorities which may be conceived to be intended to debar the Admiral from the Conusance of Contracts and writings made at Land touching things to be performed at Sea or such as shew that since the making of the Statute of the 15 of Rich. 2. Chap. 3. and not before the Courts of Common Law have admitted and held Pleas of Charter-parties of Policies of Assurance and declared something concerning Mariners wages Touching Charter-parties it is shewed first that in the 31 of Hen. 6. an Action was brought upon the Statute of double damages by William Hore against Ieffery Unton who had sued the said Hore in the Admiralty for fourscore pounds upon a Charter-party of Freightment of a Ship of the said Ieffryes imployed to go towards Island in regard Contractus ille apud novam Sarum infra corpus Comitatus non super altum mare factus junctus fuit whereupon damages were assessed against the Defendant to an hundred Marks and costs to 40 l. Again that in the 28 of Elizabeth in the Kings Bench upon a Charter-party by a Deed indented which was made at Thetford in the County of Norfolk Euangelist Constantine sued Hugh Glynn for the breach of Covenant in not staying at Muâ—trel in Spain so many dayes as were limited by the Covenant whereupon he was condemned in 500 l. and in arrest of Judgement it being shewed That the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had and that therefore the trial was not sufficient Sir Christopher Wray and the whole Bench resolved that the Plaintiff should recover 500 l. besides the costs and damages because the Charter-party was made at Thetford within the Realm Concerning Policies of Assurance That in the 38 of Hen. 8. in a Case betwixt Crane and Beâ—l touching a promise made at Dartmouth That the Ship should pass without taking which was afterwards surprized by the Spaniard upon the high Sea it was held not determinable in the Admiralty for although the taking were upon the Sea yet the promise was upon the Land Again that in the 36 of Elizabeth an Action of the Case was brought in the Kings Bench upon an Assumpsit from a Policy of Assurance where it was undertaken That a Ship should sail safely from Melcomb Regis to Abbevil in France the Ship being arrested by the French King in the River of Somme in the Realm of France and the matter was there adjudged â—o which may be added what Sr Ed. Cook delivers for Law in Dowdales case Cum combein le contract comme le performance c. when as well the Contract as the performance of it is wholy done beyond the Sea and it so appears the Trial fails at the Common Law But here saith he the Assumpsit was made at London which is the ground and foundation of the Action and therefore the Trial of necessity shall be there or otherwise it shall not be tryed at all and the Arrest which is in issue is not the ground of the Action but the Assumpsit c. Touching Mariners wages is that of the Book of 48 of Edw. 3. where it is said That if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded in that Court by the Common Law Nemy per ley Mariner To these Authorities it may be replied in general that all but the last are grounded upon the commonly received sense of the Statute of the 15. Rich. 2. that the Contract doth rise only there where it is made or written with out any respect to the nature of the business and the occasion thereof from whence in truth it doth more properly arise And whereas other acts of Parliament have in some special points ordained and declared otherwise it may be hoped that it may not be held a crime unexcusable if a man should doubt of the reasonableness of those authorities Touching the particulars As First of the 31. of Henry 6. betwixt Hore and Unton wherein double Dammages were given for suing in the Admiralty Court upon a Charter-party it is said that the Sute was upon a Charter-party of Freightment for four score pounds It doth not appear that it was for the freight of the Ship although it be most probable and if it were so why the Master of the Ship should not as well sue for his freight by virtue of the Statute of the 32. of Hen. 8. as the Merchant by vertue of the same Statute might sue in the Admiralty for dammage done to his
goods aboard a Ship contrary to the Charter-party without any respect to the place where it was made if no reason can be shewed that Judgment may be thought not to have been grounded so much upon reason as it was upon the common received opinion of the meaning of that Statute as it is therein related quia contractus ille apud novam Sarum factus junctus fuit Touching that of the 28. of Elizabeth whereby Glynn was condemned to Constantine for breach of Covenant in a Charter-party in the summ of 500. l. it seems a Case far more reasonable though something grievous because it is not denied but that a sute upon a Charter-party may be commenced at the Common Law upon a penalty as it seems that was for breach of Covenant in not staying at Madrill so many dayes as were limitted by the Charter-party Only that is thought no concluding argument against a sute in the Admiralty for freight grounded on a Charter-party But whereas when in the Arrest of judgment it was alleged that the Trial was not sufficient because the issue did arise out of a place in a Forein Kingdome from whence no Jury by Twelve men might be had Sir Edw. Cook sayes that Sir Christopher Wray and the whole bench resolved That the Plaintiff should recover cost and dammages because the Charter-party was made at Thetford in Norfolk within the Realm it is as much as if Sir Edw. Cook had said that whether the suggestion in the issue were true or false tryed by a competent or incompetent Jury yet if the sute were brought upon a Charter-party the Conusance thereof did belong to the Common Law and whether the former Judges had proceeded well or not was not material so that what is premised formerly touching Judgments and judicial Acts in the First Chap. may from this case be excused And as touching the infinite prohibitions granted upon sutes commenced in the Admiralty concerning Charter-parties there may be something declared and made appear reasonable hereafter in an other place As to the instances of Policies of assurance held tryable at the Common Law although by the Statute of the 43. of Elizabeth it hath been shewed that the proceedings in those causes at the Common Law were altogether inconvenient to the Kingdome yet in regard Sir Edward Cooks reasons in Dowdales case for the maintaining of proceedings in such businesses may be applyed to other matters to the prejudice of the Admiralty Jurisdiction something may be observed concerning the same in Sir Edward Cooks reasons as first That the Assumpsit is the ground and foundation of the Action and that the Arrest or Imbargo in that case had been no ground of an Action if there had been no Assumpsit neither could the Assumpsit have produc'd an Action if there had not been an Arrest But what was the nearest and immediate ground of the Action without doubt the Arrest And what was chiefly in question not the Assumpsit for it was taken for granted that that was done in London but it was the Arrest which as it was declared was in issue And it is likely that the Common Law which intended a Trial of the Vicinage intended it of the thing or matter which was in issue to be tried But he further argues That the Trial must be of necessity where the Assumpsit is made for otherwise there could have been no Trial at the Common Law which might have savour'd of some reason If possibly there could have been no Trial in any other Court but the Cause being Maritime and amongst Merchants it might more properly have been tried in the Admiralty or in the Assurance Court without a Jury or Trial of Twelve men by witnesses as Fortescue acknowledgeth Thirdly touching that of the Book of 48. of Edward the 3. where it is said That if a Mariner make Covenant only to serve in a Ship on the Sea yet if the wages be not paid they shall be demanded in that Court by the Common Law not by the Law Mariner the occasion was that an action of debt being bâ—ought at the Common Law upon an Obligation dated at Harflet in Kent whereas in truth it was made in Normandy and the consideration was Service done in Warr in France thereupon one of the Judges said That the summ demanded growing due for Service done in Warr the Cause ought to be tryed in the Constable and Marshals Court Another as it seems willing to retain the cause said tâ—at he hired a man to go in a message to Rome although the service were done in another Realm yet what was due by covenant might be recovered in that Court Another said if a Mariner make a Covenant with one to serve in a Ship on the Sea yet if his wages be not paid they shall be demanded by the Common Law c. So that it is plain it was not a Resolution of the Court but a fuit dic as they say and one mans opinion by way of argument to another purpose And the ground thereof might be that if it were in issue whether such a Covenant were made it might be tryed at the Common Law but it doth not conclude but that if the Question were whether the service in the Ship were performed on the Sea it might more properly be tryed in the Admiralty Court For confirmation on this point First To the 4. Request of the Judge of the Admiralty to the Lord Chief Justice of the Kings Bench 12. May 1575. viz. That the Judge of the Admiralty may have and enjoy the knowledge of the breach of Charter-parties made between Masters of Ships and Merchants for voyages to be made to the parts beyond the Sea according as it hath been accustomed time out of mind and according to the good meaning of the Statute of 32. Hen. 8. chap. 14. though the same Charter-parties be made with in the Realm The answer is This is agreed upon for things to be performed upon or beyond the Seas though the Charter-party be made upon the Land by the Statute of 32. Hen. 8. chap. 14. Secondly it was agreed unto by all the Judges and Attorney General before the King and his Counsel That if a Sute be before the Admiral for Freight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Sea although the Charter-parties happen to be made with in the Realm and although the money be payable within the Realm so as the penalty be not demanded a Prohibition is not to be granted But if the Sute be for the penalty or if the Question be made whether the Charter-party were made or not or whether the party did release it is to be tryed by the Kings Court at Westminster So that at first it be denied upon Oath that a Charter-party was made or a denial upon Oath tendred to which it may be added that it was there further agreed That if Sute shall be made in the Court of Admiralty for building