Page 132
Pickering against Barkley.
Mich. 24 Car. Banc. Reg.
Pasc. 24 Car. rot. 154.
PIckering brought an Action of Covenant upon a deed of Covenants of Charter-party,* 1.1 whereby it was Covenanted that the Defendant in con∣sideration of a certain sum of mony agreed to be paid to the Defendant, for fraight of a Ship, should make such a voyage, and bear all losses and damage which should befall the Ship, or Merchandises in her, excepting only perills of the Sea, and declares that the Defendant had not performed his agree∣ment, and for this he brings his Action. The Defendant pleads, that in the making of his voyage upon the Sea, the Ship was taken per quosdam ig∣notos homines bellicosos, whereby he was hindred in making of the voyage according to his agreement; to this plea the Plaintiff demurs. The questi∣on was in regard that in the Charter party perills of the Seas were except∣ed, whether the taking of the Ship by these, unknown men of War should be accompted a perill of the Sea, or not according to the meaning of Mer∣chants. Twisden of Councel with the Plaintiff held it should not, and so the plea was not good, and that therefore the Plaintiff ought to have Iudg∣ment, and said, this was not a danger of the Sea, but a danger upon the Sea. 2ly. He said, the party (it may be) might have prevented it by vi∣gilancy, or by making resistance, and so it may be it was his own fault the Ship was taken. 3ly. The men of Warr that took the Ship were per∣adventure English men, and then the Defendant is not to be excused, for he may have his remedy for what he is damnified, against them, and cited 33 H. 6. f. 1. and prayed Iudgement for the Plaintiff. Hales of Coun∣cel with the Defendant held, that to be taken and robbed by Pirates is a danger of the Sea, even as tempestuous winds, and Shelfs, and Rocks are. And 2ly. To that it is said, the pirates may be English men, we are not able to say of what Nation they were, and therefore our plea is good in that point also, and prayed Iudgement for the Defendant. Roll Iustice said, it was not well pleaded to say per homines ignotos. Bacon Iustice said, The Defendant doth not shew that he and his Ship was carryed per locos incog∣nitos, as he should have shewn;* 1.2 but Roll Iustice answered, that it may be the Ship is yet kept upon the Sea, but I suppose that Pirates are perils of the Sea, and to this purpose a certificate of Merchants was read in Court, that they were so esteemed amongst Merchants. Yet the Court desired to have Granly the Master of the Trinity house, and other sufficient Merchants to be brought into the Court to satisfie the Court viva voce Friday next fol∣lowing. Iudgement was given this Term nil capiat per billam, because the taking by Pirates are accompted perils of the Seas.