case the king against mason evidence that the captain of a ship tamper with  the carpenter to knock her on the head order a fire to be make in the cabin  throw the bucket overboard and make the crew drink will not maintain a  indictment for felonious burn the modern report er p ship if good be load on  board a ship with a special trust to deliver they at a certain place the  captain be not guilty of piracy by fraudulent convert they to his own use the  defendant who be master of a ship be indict and try upon several indictment at  the oldbailey before sir Henry Penrice judge of the admiralty and several  other civilian and before some judge of the commonlaw assist they and this by  virtue of a commission under the great seal accord to the statute Henry c the  first indictment on which he be try be for malicious and piratically burn a  ship to the great damage and defraud both the owner and insurer against the  peace and against the form of the statute see the car c the whether saint c  the Geo c and Geo c S hawk p c c S a the fact upon the trial appear to be as  follow the ship be load with linen at Rotterdam and bind for Malaga in Spain  the defendant when he receive the bill of lade be order by the merchant and  owner to put in at Lynn king in Norfolk in order to get a Mediterranean pass  for his safety it be prove by one witness who be the carpenter of the ship  that the defendant when he come near to DartmouthBay tamper with he to know  what he will take to knock the ship on the head it be prove by another witness  that the defendant give the ship crew some bowl of punch on the day the ship  be burn and make they all drink and afterward order this witness to make a  fire in the cabin where there be none for a month before that time which he do  when the defendant and most of the crew be go ashore except two who be very  drink and that there be but one bucket belong to the ship which the defendant  have order a sailor to fling overboard the day before the ship be burn the two  sailor who remain drink in the ship make oath that they be sleep there until  the ship be so much on fire that they can not relieve her nor themselves but  that they be carry off by another ship boat then in the harbour modern report  upon this evidence the presumption be very strong that the ship be burn by  that fire which be first make in the cabin but this be only presumption and no  direct proof the defendant be acquit the defendant be afterward try upon  another indictment for piracy and steal the good which he have at Rotterdam on  shipboard and consign to Malaga the evidence against he be that the good be  deliver to he and that afterward he get both the ship and the cargo insure at  London and Rotterdam and when he come to the coast of England be private run  all the good and when the ship happen to be burn be come to Dartmouth and  protest both ship and cargo as burn and lose accord to the method of protest  insure ship though the cargo be private run by he as beforementioned which be  prove by several witness the owner of the good prove the property and the  delivery c the counsel for the king lie it down for a rule that all act which  amount to felony at land will amount to piracy at sea that upon this evidence  it plain appear that the defendant have run the good mind to steal which if do  at land will be felony as for instance if good be deliver to a carrier and be  steal they mind to steal it be felony and so be this piracy for it appear by  his protest that the ship and cargo be burn and lose that he design to cheat  both the owner and insurer it be true if the master of a ship run good with a  intention to cheat the king of the duty this be no piracy though the good  shall happen to be seize as forfeit to the crown for not pay the duty but here  by the defendant protest the good to be lose when they be not but private run  by he this must be with a intention to cheat and defraud the owner for it be  do mind to steal and his intention make it piracy as a felonious intent make  the action felony the defendant produce a instrument in write under the  merchant hand who fraught this ship as he pretend by which he have authority  to run the good as modern report er p he shall modern report find opportunity  but upon enquiry and proof this seem to be a forgery for the merchant on oath  deny his sign the instrument and the witness to it be now produce to prove the  sign it make oath that he do not know the merchant therein mention but that  the defendant and another be at a publichouse in Rotterdam and send for this  witness who come and then the defendant tell he that the other person there  present be his merchant and that he send for he to be a witness to the power  his merchant give he and thereupon the instrument be ready draw that other  person sign it and this witness attest it all which give room for a  presumption that he intend the run the good before be leave holland mind to  steal but notwithstanding this evidence the judge of the commonlaw who assist  the judge of the admiralty direct the jury to acquit the defendant for that  the good be deliver to he upon a special trust to deliver they at Malaga and  that it can be no piracy to convert those good in a fraudulent manner until  that special trust be determine no more than it can be felony in a carrier by  convert of good deliver to he to carry to such a place before that special  trust be determine and this appear to be the law of England by concurrent  resolution in several lawbook Inst hale plea of the crown Staundf Edward  Kelynge the case in Kelynge be thus a man come to Smithfield market to sell a  horse and a jockey come thither to buy a horse the owner deliver his horse to  the jockey to ride up and down the market to try his pace but instead of that  the jockey road away with the horse this be adjudge felony and certain it be  felony but different from mason case because the horse be not deliver to the  jockey upon any special trust as the cargo be to mason but be only a general  delivery and no more than the common case of a shopkeeper show or deliver good  in his shop to his customer where a conversion of such good be certain felony  but the delivery of good upon a special trust be common public and notorious  and therefore if the party convert they before that trust be determine it be  not felony because be may have a proper remedy by a action of trover to  recover damage note to the former edition a the counsel for the king thereupon  insist that though this be not piracy before the special trust be determine  yet the break open some bale of linen on board this ship make it piracy for  this be a conversion with force and mind to steal and that it will be felony  in a carrier to break open any box deliver to he and to convert they mind to  steal for such a conversion by force be felony though the special trust be not  determine modern report but the court hold there be a difference between open  bale of linen and break open the lock or nail of box by a carrier and that  this be no piracy the jury thereupon acquit the defendant of this indictment  the defendant be afterward try upon a three indictment for a cheat in commit  the act aforesaid and be find guilty and fine and imprison till he pay the  fine I note to prove the delivery of the good to the captain a exemplification  of the entry of they make in the customhouse book at Rotterdam attest by a  public notary and seal with the public seal there be offer in evidence but the  court will not admit this exemplification to be give in evidence easter term  the nine of George the first in the king bench sir John Pratt Knt chief  justice sir Littleton powys Knt sir Robert Eyre Knt sir John fortescue aland  Knt justice sir Robert Raymond Knt attorneygeneral sir Philip York Knt  solicitor general