Buggin v Bennett
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1767 |
| Date | 09 May 1767 |
| Court | Court of the King's Bench |
English Reports Citation: 98 E.R. 60
IN THE COURT OF KING'S BENCH
Considered, Mayor of London v. Cox, 1867, L. R. 2 H. L. 288; Farquharson v. Morgan, [1894], 1 Q. B. 557.
[2035] buggin versus bennett. Saturday 9th May 1767. After sentence below, prohibition cannot go, unless want of jurisdiction appears on the face of the proceedings. [See 3 East, 477. 5 East, 348, et ant. 2033.] [Considered, Mayor of London v. Cox, 1867, L. R. 2 H. L. 288; Farquharson v. Morgan, [1894], 1 Q. B. 557.] Thi was a question concerning a prohibition to the Court of Admiralty, to stay proceedings there in a suit for seamen's wages. The ship was destroyed at Bencoolen, by order of the governor, to prevent her falling into the hands of the enemy. The master of her agreed " that if the mariners would assist in unloading the goods, they should be paid their wages." It appeared upon the proceedings in the Admiralty Court, " that it was covenanted and agreed &c." But it was not expressly alledged to be by deed. The articles were set out at full length. They were annexed to the plea, and referred to by it; and the locus sigilli was marked (L. S.); and it was prayed "that they might be taken at part of the plea." And the defendant in the Admiralty alledged that it was covenanted "and agreed by them, that &c. &c." Proceedings went on there, till sentence was given for the mariners. After sentence, and not before, the defendant below moved this Court for a prohibition ; suggesting " that it was a contract by deed, made at land." The other side admitted the execution of the articles to have been afc Gravesend. Mr. Serjeant Burland now shewed cause against the prohibition. He said that the defendant below had not pleaded this deed there ; but has pleaded another matter, and submitted to the Admiralty-jurisdiction : and there is a sentence against him. He comes too late, therefore, after sentence. After sentence, the Court will not grant a prohibition, unless a defect of jurisdiction appears upon the face of the libel. Winch, 8. 1 Ventr. 343. 1 Strange, 187, Argyle versus Runt; and Symes versus Symes, (v. ante, vol. 2, p. 813,) in Trin. 1759. These articles are not alledged to be under seal; only, " that they were in writing." Therefore no defect of jurisdiction appears. These seamen were intitled to their wages : and they shall be indulged in proceeding in the Admiralty. The sentence there was given upon the merits. Great delay, protraction and expence would be occasioned to them, by the other side's lying * See 2 Str. 1217. Case of The Bail of Peter Vergen. [See also 5 Viti. 237, pi. 2. 6 Com. 63 (Q. 2). Foster, 62, 63. 6 Durn. 51, 247. 7 Burn. 227.] 4 BURR. 3038. BUGGIN V. BENNET 61 by thus long, and submitting to the Admiralty-jurisdiction; if they could now at last object to it. This late application ia only for vexation; or calculated to save costs. Besides, if their suggestion was better founded than it is, yet here is no affidavit to verify the truth of the suggestion, The counsel on the other side (Sir Fletcher Norton, Mr. Dunning...
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