1843. LOPEZ บ. BURSLEM vantage of, by appeal, at any distance of time. It was probably to guard against this, that the Legislature has anxiously made the limitation as to the time of and others. appealing to apply in language so comprehensive to all sentences touching any of the matters provided for by the Act; and we are of opinion, that we should by no means be justified in putting a construction upon it, which would entirely defeat its object. The Guiana. It was further argued, that the Vice-Admiralty Court at Sierra Leone had no jurisdiction in this case, and that we ought, therefore, to reverse the appeal; and, indeed, it was said we ought at once to reverse the sentence, or to declare it null. I did not exactly understand how we were to come to the conclusion that the Vice-Admiralty Court had no jurisdiction over this British ship for an infraction of the British Statute, or how the case could have been brought before the mixed British and Brazilian Commission. But the Appellants do not deny that there are supposable facts which would give the Vice-Admiralty Court at Sierra Leone jurisdiction over the whole case; and till the appeal is received and heard, how can we know that these facts did not actually exist, and were not the foundation of the sentence? But suppose that a total want of jurisdiction were established, the clause of limitation is not applied to sentences of Courts acting within their jurisdiction; and this sentence, if it were pronounced by a Court not having jurisdiction, would not the less be the sentence of a Vice-Admiralty Court, touching matters provided for by the Slave Trade Abolition Act. A number of cases were cited to us, showing what that great Judge, Lord Stowell, had said and done when he had to review sentences of Vice-Admiralty Courts, bad for want of jurisdiction; but all these cases were regularly before him, upon an appeal duly brought and prosecuted, and in none of them did the question arise which we have to decide, whether the appeal ought to be admitted upon the construction of an Act of Parliament for limiting the time for appealing. I apprehend, therefore, that in this stage of the proceedings, the argument arising from a supposed want of jurisdiction in the superior Court must be quite unavailing. In the pardonable excess of a very laudable zeal, a power was imputed to this Court, which the learned Counsel for the Appellants on reflection must be aware does not belong to us. It was said that as a supreme tribunal, acting on the law of nations, we were to remedy all the grievances of foreigners, arising from the acts of Colonial Courts, which may in any shape be brought before us. But in reality, we are now sitting merely as a Court of Appeal from a Vice-Admiralty Court--strictly bound by Acts of Parliament, as much as the lowest Court of Justice in the kingdom. We cannot reverse or alter a sentence till it is regularly before us on appeal, and we cannot receive an appeal if, as in the present case, a previous condition prescribed by the Legislature has not been complied with. I, for one, should have been well pleased if an attempt which was made in the last session of Parliament, to allow this appeal to be heard by altering the law for these particular Appellants, had succeeded. A clause in a Bill for this purpose passed one House of the Legislature without opposition, but 1843. LOPEZ v. BURSLEM and others. The Guiana. 1843. LOPEZ v. BURSLEM and others. The Guiana. was not approved of by the other,* on the ground, as I was informed, that on inquiry it was found that if the agents employed had done their duty, the Inhibition might easily have been obtained in due time. But however that may be, the general law stands unaltered, and upon the just construction of that law their lordships are of opinion that the appeal cannot be received. They will therefore humbly recommend to Her Majesty in Council that the appeal should be dismissed, as prayed by the Respondents. * After the decision in the appeal of Logan v. Burslem, (ante, p. 284,) a Bill intituled, "An Act to make further regulations for facilitating and hearing appeals and other matters by the Judicial Committee of the Privy Council," was brought in the House of Lords. By sec. 11 of this Bill it was enacted, "That in all cases wherein a petition shall have been heretofore lodged as aforesaid, but the usual Inhibition and Citation shall not have been decreed within the aforesaid respective periods, the Judicial Committee and their Surrogates shall have full power to proceed, and the said Judicial Committee shall report, and Her Majesty shall adjudge on such report, in like manner and as if the said Inhibition and Citation had been decreed within the aforesaid respective periods, notwithstanding any Protest entered into or determined upon by the said Judicial Committee." When the Bill was sent down to the House of Commons, a Select Committee was appointed by that House "to inquire into the facts attending the delay in extracting the Inhibition in the case of the ship Guiana, and dismissal of the appeal, in the said case, by the Judicial Committee of the Privy Council." The Select Committee, after examining witnesses, reported to the House that there did not appear sufficient grounds to sustain the above section (which had been imported into the Bill to meet the exigency of the case of the Guiana). The section was accordingly struck out of the Bill (a). (a) See 6th & 7th Vic., chap. 38. ON PETITION FROM THE SUPREME COURT IN RE SHERWIN.* Heard Ex parte. 2nd Feb. 1844. Application for leave to an Order of the Supreme Court at Van Dieman's trover, the THE Petitioner, James Sherwin, was the Defendant in an action of Trover, to recover the amount of a Policy of Assurance, brought in the Supreme Court at Van Dieman's Land, by James Tetley. The action appeal from was tried at Hobart Town, before Mr. Justice Montagu, and a special jury. The jury, notwithstanding the charge of the Judge, that there was no evidence Land, refusto connect the Defendant, as agent for the Plaintiff, new trial of ing a fourth found a verdict for the Plaintiff, for £970, being the an action of amount of the Policy, deducting £30, the amount subject-matof premium; upon this the Defendant moved for, and obtained a new trial; and such new trial was heard before the Chief Justice, when the jury again found a verdict for the Plaintiff, for the same amount, notwithstanding the charge of the Chief Justice. A further application was then made for, and another new trial granted. This new trial came on before the same Judge when the jury again found for the Plaintiff. Upon this the Defendant moved again, and the Court granted a third new trial. This third trial was had tion for a * Present: The Lord President, Lord Brougham, Lord Campbell, the Vice-Chancellor Wigram, and the Right Hon. Dr. Lushington. ter of which amounted to £970, refus ed; the Char ter of Just ce right of aplimiting the peal to £1,000, and the Judicial Committee being of opinion upon the merits, that it was a mere ques Jury who had already found four times against the Petitioner. 1844. IN RE SHERWIN. before the Chief Justice (who again charged the jury in the Defendant's favour), and the jury (though selected from another district) found again for the Defendant; the Judge reserving a point of law, whether the Plaintiff ought not to have been nonsuited, on the ground that his demand of the Policy from, and tender of premium to, the Defendant, and the Defendant's refusal to deliver the Policy, constituting the alleged conversion to support the action, did not, in fact, take place until after the Policy had ceased to be in the Defendant's possession or control. In pursuance of the leave so granted, the Defendant moved the Supreme Court to set aside the verdict, and to enter a nonsuit, or, in the alternative, for a new trial; but the Court held that they had no power to enter a nonsuit, and refused the application for a new trial. The Defendant (the Petitioner) then applied, by petition, to the Court, for leave to appeal to Her Majesty in Council, and that all further proceedings in the action might be stayed. The Court refused to grant leave to appeal, on the ground that the Petitioner's case did not fall within the provisions of the Charter of Justice,* inasmuch as the subjectmatter of the suit at issue did not amount to the value of £1,000, the sum restricted for appealing. From this refusal the Petitioner presented l'is petition to Her Majesty in Council, praying for leave to appeal against such Order or determination of the Supreme Court. * See the Charter of Justice of Van Dieman's Land, dated 4th of March, 1831. Clark's Col. Law, 653. |