1767. THEYER v. EASTWICK. Two anonymous cases in Ventr. 343 and 352. are in point. It was triable at common law; being punishable in London, at common law, by the custom of London. Lord MANSFIELD doubted, whether the Court could •They can not. judicially take * notice of this custom of London. Argil. Hunt, Tr. 5. G. 1. B.R. Driver et Ux'. t. Colgate, Hill. 12 G. 2. B. R. Hartopp v. Hoare, p. 16. G. 2. B.R. + It was so holden in But the suggestion not being drawn up, it was AD JOURNED. On the Wednesday following (28th January) this motion having been renewed Mr. Justice ASTON said-It must be upon affidavit of the custom of London; and "that the words were spoken "there.”+ Hynes v. Thompson, Mich, 12 G. 2. B. R. and in the abovementioned Case of Driver et Ux'. v. Colgate. [2033] [+ Vide post. 2418. Doug. 363]. A rule was then granted, upon filing such an affidavit. Which rule was now made absolute. Mr. Justice ASTON said-It may be as well tried at law, as in the Spiritual Court. Per CUR'.-(Lord MANSFIELD absent) V. post. p. 2035. Buggin versus Bennett, concern- The End of Hilary Term 1767, 7 G. 3. EASTER TERM 7 GEO. 3. B. R. 1767. [ 2034 ] FOWLER vers. DUNN. THE There was, at first, a difficulty with the Court, "whe"ther this could be done AFTER conviction for a felony, "and sentence of transportation." But, at length, they granted the motion; the Recorder alledging that there was a precedent in Sir John Strange's Reports.* the Bail of Peter Vergen. [See also 5 Vin. 237. pl. 2. 6 Com. 63. (Q. 2.) Foster 62, 65. 6 Durn. 51, 247. 7 Durn. 227]. N. B. There was a doubt also with Master Owen, It now appeared that the man was actually on board a ship in the river, for transportation; and that the ship was ready to sail, Lord MANSFIELD said that this made a very great difference in the case. For, under these circumstances, it might be extremely inconvenient; they might as well pray a Habeas Corpus to bring him hither, even after actual transportation; for the king's writ will run into the colonies. Therefore THE COURT, under these circumstances, refused to grant the motion. Nothing taken by the MOTION. 1767. Saturday 9th After Sentence THIS below, prohi bition cannot go,unless want BUGGIN versus BENNETT. HIS was a Question concerning a prohibition to the Court of Admiralty, to stay proceedings there in a suit for seamen's wages. of jurisdiction appears on the face of the proceedings. [See 5 East. 477. 5 East. 348, et Ant. 2033.] 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 AdmiraltyCourt, 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 (LS); and it was prayed "that they might be "taken as 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 at 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 Hunt; 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 by thus long, and submitting to the Admiralty-jurisdiction; if they could now at last object to it. This late application is only for vexation ; or calculated to save costs. 1767. BUGGIN V. Besides, if their suggestion was better founded than it is, yet here is no AFFIDAVIT to verify the truth of the BENNETT, suggestion. The Counsel on the other side (Sir Fletcher Norton, Mr. Dunning and Mr. Davenport,) relied on the case of Howe Esq. versus Nappier, adjudged in last Michaelmas Term. That was an application pending the suit, indeed: and this is after senience. But that case was fully argued and discussed; and it was settled, "that the Admiralty have "no jurisdiction, where the agreement is special, or by deed under seal." And this appears to be a contract made at land, by deed under seal. For, the articles are set out at full length; the Locus Sigilli is specifically marked out; they are incorporated with the answer; it is alledged to be covenanted by them, so and so; and the execution of them at Gravesend, (which execution must have been by sealing,) is admitted. From whence it follows, that the Admiralty Court had no jurisdiction to proceed at all: and consequently, their proceedings were coram non Judice, and therefore void. And, as this want of jurisdiction appears upon the face of the proceedings below, we do not come too late. If this Court see that an inferior Court has proceeded coram non Judice, they will, in such case, prohibit them in any stage of the cause, be it before or after sentence. Here, the Court of Admiralty never had jurisdiction: and the consent or acquiescence of the parties can not give them a jurisdiction in an original cause, if they really have none. It is the province of this Court, to see that inferior jurisdictions keep within their proper bounds. They denied that there was any need of an affidavit to verify the truth of the suggestion. They alledged that no other affidavit is requisite, in the first instance of applying for a prohibition, than an affidavit to verify the proceedings below, and "that the copy of them is a "true copy." THE COURT did not agree to this last assertion.-They rather thought, that where the want of jurisdiction does not appear upon the face of the proceedings, an affidavit was necessary. Lord MANSFIELD-If it appears upon the face of the proceedings," that the Court below have no jurisdiction," a prohibition may be issued at any time, either before or * V. ante, p. 1944. [2037] [18 Vin. 51 pl. Doug. 363. 1 H. Bl. 89.] 2 acc. See also 1767. BUGGIN V. after sentence: because all is a nullity; it is coram non Judice. But where it does not appear upon the face of the proceedings, if the defendant below will lie by, and suffer BENNETT. that Court to go on, under an apparent jurisdiction, (as upon a contract made at sea,) it would be unreasonable that this party who when defendant below has thus lain by, and concealed from the Court below, a collateral matter should come hither after sentence against him there, and suggest that collateral matter as a cause of prohibi tion, and obtain a prohibition upon it, after all this acquiescence in the jurisdiction of the Court below. Now here is nothing upon the face of these proceedings, which shews, that the Admiralty Court acted without jurisdiction; or, that what they did was coram non Judice. The word "covenanted," alone, is not sufficient It is clear it to that purpose: that expression does not necessarily ✶ im. port "that it was a contract by deed." does. [Ante, 1944.] [ 2058 ] In the case of Howe versus Nappier, the application for a prohibition was before sentence: this is after sentence, and upon suggestion of a collateral matter. In that case, no objection was taken, (as well as I can recollect) to the want of an affidavit. And where the want of jurisdiction appears upon the face of the proceedings, an affidavit is not necessary; though every suggestion that does not appear upon the face of the proceedings, but is collateral and out of the proceedings, ought to be verified by affidavit. In the case now before us, the matter suggested does not appear upon the face of the proceedings; but is collateral, and out of them; and therefore it ought to be verified by affidavit. Mr. Justice YATES thought the present case to differ very much from that of Howe versus Nappier. In that case, the deed was relied upon, in the Admiralty Court; and the prohibition was applied for, before sentence: and he said, the Court were satisfied, that they were right in the determination of that case. But in the present case, the matter suggested was not shewn or urged or relied upon as an objection to the jurisdiction of the Court of Admiralty; nor does it appear upon the face of the proceedings," that the articles were made at land, or under seal.” if the want of jurisdiction appears upon the face of the proceedings, there indeed a prohibition may go at any time it is indifferent whether it be applied for before or after sentence. The reason is, because all is a mere nullity. : If a prohibition is applied for, the ground of such application ought to appear to the Court applied to. If the |