Lowther v. The Earl of Radnor, (a) or Gwinne v. Poole, (b) where the facts of the case, although subsequently found to be false, were such as, if true, would give jurisdiction, and it was held that the question as to jurisdiction or not must depend on the state of facts as they appeared to the magistrate or judge assuming to have jurisdiction. Here the facts of the case, which were before the defendant and could not be unknown to him, showed that he had not jurisdiction; and bis mistaking the law as applied to those facts cannot give him even a prima facie jurisdiction, or semblance of any. The only questions, therefore, are, whether the defendant is protected from liability at common law, being and acting as the judge of a court of record, in which case the plea of Not guilty would be sufficient; or whether he is protected by the provisions of any statute, and, if so, whether he can take advantage of such statute, having omitted the words "by statute" in his plea and the margin of it.

As to the first question, although it is clear that the judge of a court of record is not answerable at common law in an action for an erroneous judgment, or for the act of any officer of the court wrongfully done, not in pursuance of, though under colour of, a judgment of the court, yet we have found no authority for saying that he is not answerable in an action for an act done by his command and authority when he has no jurisdiction. Here the defendant had, not only no jurisdiction to commit the plaintiff to the gaol of Cambridgeshire, but he had no jurisdiction to summon him to show cause why he had not paid the debt. That summons ought to have been issued out of the county court of Cambridge.

(a) 8 East, 118, 119.

(b) 2 Lutw. Appendix, 1560, 1566.

The case of Dicas v. Baron Brougham and Vaux(a) was cited, but it is plain that the order of commitment made by the defendant as Lord Chancellor was not without or in excess of jurisdiction. The question was whether it was regular or not, which clearly could not form the subject of an action. Holroyd v. Breare,(b) Tunno v. Morris, (c) and other similar cases turned on the question whether the person doing the wrongful act was so servant of the defendant as to make him answerable for the act; and it was held that an officer is not such a servant to a judge of the court. But none of those cases turned on the want of jurisdiction. We cannot, therefore, hold that the defendant in this case is protected from liability at common law.

Is he then protected by any statute? We find no statute which gives such protection. The statutes 21 Jas. 1. c. 12. s. 5 and 42 Geo. 3. c. 85. s. 6 enable the defence, when it exists, to be given in evidence under the general issue, but they do not protect a party acting without jurisdiction; and now even that privilege of pleading the general issue only is coupled with this qualification, that the plea must be stated to be "by statute," which words are omitted here.

The judgment must therefore be for plaintiff.

Judgment for plaintiff.

Bombay, then being built for the Peninsular and Oriental Steam Packet Company, for 60,000l.; that the contract (set out), which bore date the 1st of July 1848, was signed by the defendant Charles Wellington Howell, secretary of the company, on their behalf, and by the defendants Granatelli and Scalia, and by one of its terms was subject to ratification by "the Sicilian Government.'

That the agreement was ratified by the usurping government, who applied divers sums of the plaintiff's revenues-being monies paid into his royal public treasury at Palermo-in purchasing bills which they remitted to the defendants Granatelli and Scalia in England for the purchase of the said steamships, and that the purchase money was duly paid to the defendants, the Peninsular and Oriental Steam Packet Company, the vendors, who knew how the money was obtained. That the Vectis was delivered to Granatelli and Scalia in 1849, and by them sent beyond the seas. That the Bombay was still in the port of London, and had remained in the possession of the Peninsular and Oriental Steam Packet Company until May 1849. That in April 1849 the plaintiff's lawful authority was re-established in Sicily, and he was entitled to have the Bombay delivered up to him.

That after Granatelli and Scalia had made the purchase, they and their legal advisers formed a scheme and design (which the other defendants assisted them in endeavouring to carry into effect) of availing themselves of the provisions of the Act for the registering of British vessels for a purpose contrary to the policy of such Act, and in such manner as to defeat the just rights of the plaintiff, and to benefit the said Granatelli and Scalia. That in pursuance of such scheme they requested the company, immediately the Bombay was sufficiently advanced, to have it registered in the name of the company, although they had then ceased to be the real owners. That this was accordingly done, and that on the 16th of May 1849, at the request of the said Granatelli and Scalia, the company executed a bill of sale of thirty-two sixty-fourth shares of the ships to the defendant Brodie Willcox, described as a ship-owner, and of twelve sixty-fourth shares to the defendant John Moody, also described as a ship-owner; and of the remaining twenty sixty-fourth shares thereof to George Herring, ship-broker. That Willcox, Moody, and Herring had not, in fact, purchased the said ship nor any shares thereof from the company, but the ship was, in truth, purchased from the company by Granatelli and Scalia by means of money belonging to the plaintiff as

aforesaid. That the said Willcox, Moody, and Herring never gave any consideration for such bill of sale, but were known by the said company to be mere trustees of Granatelli and Scalia. That in fact B. Willcor was not a ship-owner, but a clerk in the employ of the company, and the attesting witness to the contract of July 1848, and that J. Moody had never been a ship-owner, but was employed in the command of vessels, and was engaged by Granatelli and Scalia, on behalf of the usurping government, to take the command of the Bombay; and that George Herring was employed by Granatelli and Scalia as a ship-broker in relation to the same ship. That the said George Herring subsequently, on June 17th, executed a bill of sale conveying the shares standing in his name to the said B. Willcox, but without receiving any consideration; that the registration of these bills of sale was purposely delayed until November 26th and 27th, and that on November 29th the plaintiff's agents first discovered in whose possession the Bombay was.from May 16th to November 28th. The said Willcox and Moody, having now the control over her, intended, unless restrained by the Court, to send her away without the plaintiff's consent from England to some parts beyond the seas, and not in the dominions of the plaintiff; and that they also intended to execute some bill of sale, or other disposition thereof, in favour of some person unknown to the plaintiff, without giving such person notice of the plaintiff's claim thereto. That the said ship having, before the same was so far completed that she could be registered, ceased to belong to the company, and never having since a time anterior to the registry thereof belonged to any person being a subject of Great Britain or otherwise entitled to the benefit of the Act for the registry of British vessels, the registration thereof, and the entry of the bills of sale, were acts in fraud of the provisions of the said Act of Parliament, and in viola tion of the just rights of the plaintiff, whose moneys had been invested in the purchase of such ships.

The bill charged that the defendants had in their possession the before-mentioned contract, and divers letters and communications which had passed in relation thereto, and divers deeds, documents, books, accounts, letters, &c. relating thereto, and that, if the same were produced, the truth of the matters aforesaid would appear.

The bill prayed that the defendants might be decreed to deliver the said steam-ship, the Bombay, to the plaintiff; and that in the meantime the defendants might be restrained by in

competitors for the crown, the nation is severed into two parties, who will mutually term each other rebels. Thus there exist in the state two separate bodies who pretend to absolute independence, and between whom there is no judge. They decide their quarrel by arms, as two different nations would do. The obligation to observe the common laws of war towards

each other is therefore absolute-indispensably binding on both parties, and the same which the law of nature imposes on all nations in transactions between state and state."

This country was not in alliance with the King of the Two Sicilies. There were two contending powers at war with each other. One had established a government de facto. Our Government did not interfere between the two. It is the same as in a public war between two nations. The property was hostilely seized by the de facto government and placed in this case out of the King's power. Vattel says, at p. 385

"The property in moveable effects is vested in the enemy the moment they come within his power."

That is the case here. The war is now at an end. To take away from a conquered enemy what he had taken would

be a notion that had never entered into the mind of any writer. The enemy established a right to certain property, and brought it into this country, and now the plaintiff comes to demand it. It can never be contended, that while the war continued the King could have come to this country for the property taken from the public treasury. This country treated both parties indifferently. Then can the property be recovered after the war? Suppose the present Republican Government of France were to place funds in this country for fear of being driven out of France, and then suppose the last dynasty were restored, would it be consistent with the law of nations that this country should restore the money so deposited to the restored dynasty?

But if the law of nations were different, then the King would only have to apply to the powers of the British Government and ask for redress from it. It might be a subject of appeal from one government to another, or an arrangement might be made by Parliament; but there is no contract which this Court could enforce. The Admiralty Court of this country could have no power to administer the law upon this subject without being delegated by the Government. Neither could this Court deal with it, except by being delegated by the Government. How could this Court say that the war has terminated? It might only be smothered. It would be

for the Government to decide that, and the plaintiff could not obtain that object except by treaty with this country.

As to the demurrer for want of parties, the plaintiff says that Messrs. Willco and Moody are mere trustees: but trustees for whom? For the plaintiff's enemy? Surely there can be no decree in the absence of those very persons who, upon the allegations in the bil, constitute these gentlemen trustees. The Sicilian Government, then, of that period, ought to have been made parties. As to the question of registry, the law requires that the ship be registered only in the name of British subjects, and this Court will give no relief against the register Barker v. Chapman, (a) Thompson v. Smith, (b) Ex parte Lynch, (c) Thompson v. Leake. (d)). Even though it be shewn in equity that the ship does not belong wholly to British subjects, still the Court will hold that it belongs to the registered owners, Willcox and Moody. The Court is concluded by the register.

Lindo v. Lord Rodney, (e) Le Caux V. Eden,(f) Elphinstone V. BedreeRodney, (i) Vattel's chund, (g) Barclay v. Russell, (h) Mitchell v. Law of Nations," Chitty's Trans., p. 161, 162, 392, 393, 423, "De Jure Belli," bk. 8. 426; Puffendorf, c. 6. s. 23, and c. 12. s. 3; the Ship Regis

try Act, ss. 5 & 38, (j) Wheaton's" Treatise

on International Law,"

(a) 1 Madd. Ch. 400. (b) Ib. 395. (c) lb. 15. (d) Ib. 39. (e) Dougl. 613.

(f) Ib. 594.

p.

434.

(g) 1 Knapp, 316; 2 St. Tr. N.S. 379. (h) 3 Ves. 424.

(i) 2 Bro. P.C. 423.