Beak v Tyrrell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1741 |
| Date | 01 January 1741 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 623
IN THE COURT OF KING'S BENCH
beak versus tyrrell. 3 Mod. 194, S. C. Trover for a ship; the defendant pleaded, that he took her as a prize, and that by a sentence in the Admiralty she was condemned, &c. 1 Show. 6, S. C. Comb. 220, S. C. 2 Danv. 265, pi. 12. Cro. El. 685. 3 Keb. 785. In trover for a ship, &c. the defendant pleaded specially, that he was the King's servant, and captain and governor of such a man of war, (but did not set forth any commission) and that he seised the ship mentioned in the declaration aa a prize, (but did not set forth any cause of forfeiture by which she became a prize) and that he carried the ship to the port of Sally in the East-Indies ; and pleaded generally, that the Admiralty-Court there gave sentence against the ship as prize, & hoc, &c. unde, &c. and upon a demurrer to this plea, the exceptions following were taken. (1.) The defendant had pleaded, that he waa an officer to the King, but did not set forth any letters patent, or commission under seal; and a man cannot have such an authority without a commission. To which it was answered and resolved, that 'tis not necessary, that every captain of a man of war should be constituted by a commission under seal; because the King may give him that authority by a warrant subscribed only; besides, this is a matter traversable, and therefore the plaintiff might have traversed the truth of this fact if he would ; but now 'tis admitted to be true by the demurrer. (2.) The second objection was, that the defendant did not set forth in his plea any cause of forfeiture by which [32] this ship (being a ship of the subjects) might become a prize; for according to common intendment, the goods of one subject cannot bo a prize to another subject; because a prize is properly something taken on the high sea from a common enemy against whom war is declared ; and the goods of a natural-born subject canuot be prize without some special cause alledged. (3.) The third exception was, that the defendant had not set forth for what the sentence was given, or who was the Judge of the Court of Admiralty, who gave sentence, and to whom such Court did belong; for he did not shew that it was the King's Court, or the Court of any other foreign prince, so that the plea is altogether iucertain. To both which last...
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