child all versus sans Trin W m b r rot Mod SC salk SC lev SC Skinner SC comb  SC Danv p Danv p p action for sue in the admiralty Mod vide Skinner Writ of  error on a judgement in c b upon a special verdict there find in a action on  the case ground upon the statute r r and h cap for sue in the court of  admiralty c the case upon the special verdict appear as follow sacred  scripture sand be a merchant of London and sole owner of such a ship whereon  he and several other merchant Carthew bad load good to a very great value  design a voyage to the east Indies while this ship lie thus load in the river  Thames ready to sail sir Josiah child and other member of the eastindia  company make application to king car in behalf of the company and his Council  for the king warrant to stay this ship from her intend voyage suggest that she  be a interloper and about to trade contrary to the prohibition of the charter  of that company and thereupon the king warrant be obtain afterward the say sir  Josiah child and other c apply to the court of admiralty for process to arrest  the say ship and good and accord they obtain a warrant from that court in  nature of a attachment in virtue whereof the say ship and good be actual  arrest by which mean the voyage be lose and sand alone who be the only owner  of the ship and of some part of the good bring this action against sir Josiah  child and other member of the eastindia company who act in this matter and the  jury find for the plaintiff and give l damage and after argument the plaintiff  have judgement for the say damage in doubly videlicet for l and also double  cost accord to the statute which judgement be obtain in the court of common  plea and now upon a writ of error bring in b r it be argue that this judgement  be erroneous for that this action be bring by sand alone when all the  partowners of the load ought to have join to which it be answer and so resolve  that this action be ground mere Carthew er p on a tort therefore this  severable in its nature and not like the case of boson and Sandford in b r for  that be a action ground on a contract in law and therefore all party to such a  contract must be likewise party to the suit but this be in nature of a  trespass objection sacred scripture there be nothing find in this verdict to  bring the defendant in the original action within the penalty of the statute h  because it appear that the ship be stop by virtue of the king warrant which in  this case the king may well do for the warrant be no general prohibition to  trade but a particular prohibition to trade with infidel and as a security  only against such special trade Carthew beside the prosecution which be find  to be make by sir Josiah child c in the admiraltycourt be not such a  prosecution as be intend by the statute because there be no suit in that court  against sand but only a warrant to arrest the ship and no libel against any  person and the word of the statute be that the party grieve shall have his  action against he who pursue in that court which must be intend of a suit by  way of libel inter part beside it appear that sir Josiah child and the other  be but agent to the company I e no other but their atorneys and a attorney of  the party sue in the admiralty be not within the penalty of this statute for  it be a penal law it can be extend by any construction to all which it be  answer and so resolve that it plain appear by what be find upon record that  the defendant in this action have incur the penalty of the statute h for the  common course of proceed in the admiralty in case of this nature be by process  to arrest the ship and this that which bring in the proprietor pro interest  his and then the libel follow therefore he who procure this first process out  of that court do prosecute and pursue therein which be the word of the statute  therefore the defendant be find to have procure the admiralty process and the  ship and good to be arrest thereon this be a fall prosecution accord to the  course of that court and such evasion have always be disallow the three  objection be that this action be lie for consequential damage videlicet per  quod he lose the profit of his voyage which ought not to be in a action ground  on this general statute and last that the plaintiff ought not to have double  cost to both which objection it be answer and so resolve that as to the  consequential damage the lie it special be but matter ex abundant for those  damage may have be give in evidence though not mention in the declaration as  in battery or maihem for break a limb c the loss of the plaintiff S time may  be give in evidence upon the common declaration therefore in this case the  plaintiff ought to recover consequential Carthew damage for his loss and the  lie they special can hurt and as to the cost which be double as well as the  damage this a rule that in all case where damage and cost be give at commonlaw  and a penalty be add by a statute with double damage that also draw double  cost as to the excuse that the defendant be only agent to the company this not  find that they command they so to do or if they have it will not have excuse  they from the penalty for this at their peril to obey such illegal command and  the king warrant will not mend the matter because the defendant S application  to the king in Council be illegal and for that the statute car cap par be cite  it be agree that the king may grant embargo on ship in time of war or may  employ the ship of his subject in time of danger for the service and defence  of the nation but this warrant be not in the nature of a embargo for it be  only to stay a single ship and not in any time of war or danger or for the  defence of the nation and the pretence of a prohibition for not trade with  infidel go no far than those name in the charter of this company so that it  appear all be do with a private respect only wherefore this altogether void  and for the reason aforesaid the judgement be affirm Carthew er p