When this plea was overruled, 200 Fowles then moved the Supreme Court in 
the October term for a prohibition which issued in November. 201 In the 
January, 1739/40, term James Alexander, counsel for Kennedy, moved and 
had a rule by the Supreme Court for Fowles to declare in a month or a consultation 
to issue. 202 In his "declaration in prohibition" Fowles alleged that 
the seizure was made within the body of the city and county of New York 
and that therefore under 13 Richard 11, c. 5, 15 Richard 11, c. 3, and 2 Henry 
IV, c. 11, the Vice-Admiralty Court had no jurisdiction. Upon demurrer thereto 
and joinder in the demurrer, a writ of consultation was denied in January, 
1739/40. 203 The effect of the refusal of the consultation was to make the prohibition 
absolute so that further proceedings, if any, would take place in the 
common law courts. The Supreme Court, giving reasons for its judgment, 
stated that by the language of 15 Charles 11, c. 7, forfeitures were to be sued for 
"in any of his Majesty's courts" in the colony. This meant courts of record, 
which admiralty courts were not. To the contention that the phrase included 
the Court of Admiralty (this court being called the "King's court" in many 
statutes), it was observed that in such statutes it was termed the "King's 
Court of Admiralty," to distinguish it from foreign admiralty courts, and that 
the addition "of Admiralty" showed the distinction. Further, the presence in 
the statute of the words "essoin, protection, or wager of law" were applicable 
only to suits in courts of record. As to 7 and 8 William 111, c. 22, this statute 
gave no cognizance to admiralty courts in this matter. On the contrary, it 
rather indicated that prosecutions were to be brought in courts of record by 
leaving the choice of venue to the prosecuting officers and by the mention of 
juries. As to the pretense that this forfeiture was not disposed of by that act 
and so expressly suable for in the plantation courts of admiralty, it was replied 
that this forfeiture was not one imposed by 7 and 8 William 111, c. 22. 204 
From the Supreme Court judgment Kennedy appealed to the Governor 
and Council, where the judgment appealed from was affirmed on April 18, 
1741. Counsel James Alexander moved for an appeal to the King in Council, 
which was granted upon giving ,£lOO security to answer costs of the appeal. 205 
200 p or me proceedings in the vice-admiralty 
court see 1 MS Mins. Vice-Adm. Ct. Prof. N.Y., 
1715-46, 104-5, 106-9. 
201 NYHR Parch., 225-D-1; James Alexander 
MS Register of Cases, N.Y. Supreme Ct., 
1721-42, 42 (NYHS). For a copy of the plea 
in bar and of the suggestion see James Alexander 
MSS, Box 45. 
202 James Alexander MS Register of Cases, 
N.Y. Supreme Ct., 1721-42, 42 (NYHS). 
203 nyhr Parch., 225-D-1; James Alexander 
MSS, Box 45. Kennedy demurred on the 
grounds that: (1) it did not appear by the 
declaration by whom or by what power the 
colony was divided into counties; (2) it did 
not appear that the plea to the jurisdiction in 
the admiralty court was on oath or sworn to in 
court; (3) it was not set forth in the declaration 
that the importation was upon land or 
anywhere out of the admiralty jurisdiction; 
nor was any time and place set forth when 
and where die importation was made. 
204 James Alexander MSS, Box 45. 
205 19 MS Mins. N.Y. Council, Bi, 98, 102