THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW THE Council CASES HEARD AND DETERMINED BY THE JUDICIAL COMMITTEE AND THE LORDS OF HER MAJESTY'S MOST HONOURABLE PKIYY COUNCIL. REPORTED BY EDMUND F. MOOKE, ESQ., M.A., BABRISTER-AT-LAW. 4- VOL. I. 1865-6-7. LONDON: PRINTED FOR THE COUNCIL OF LAW REPORTING BY WILLIAM CLOWES AND SONS, DUKK STREET, STAMFORD STREET ; AND 14 CHARING CROSS. PUBLISHING OFFICE, 51 CAEEY STREET, LINCOLN'S INN, W.C. 1867. SB ZS/HL. LIST OF TUB JUDICIAL COMMITTEE ESTABLISHED BY THE 3RD & 4TH WILL. IV., C. 41, FOR HEARING AND REPORTING ON APPEALS TO HER MAJESTY IN COUNCIL. The Duke of Buckingham, Lord President. Lord Chelmsford, Lord High Chancellor. The Duke of Buccleucli, formerly Lord President. The Marquis of Salisbury, formerly Lord President. The Earl Granville, late Lord President. Lord Brougham and Fame, formerly Lord High Chancellor. Lord Cranworth, late Lord High Chancellor. Lord St. Leonards, formerly Lord High Chancellor. Lord Wensleydale, formerly one of the Barons of the Court of Exchequer. Lord Kingsdown, formerly Chancellor of the Duchy of Cornwall. Lord Westbury, formerly Lord High Chancellor. Lord Eomilly, Master of the Rolls. Lord Cairns, one of the Lords Justices of the Court of Appeal in Chancery. The Right Hon. Stephen Lushington, D.C.L., late Judge of the Admiralty .Court. The Right Hon. Sir James Lewis Knight Bruce, Knt., one of the Lords Justices of the Court of Appeal in Chancery (deceased). 700049 LIST OF THE JUDICIAL COMMIT i,t Hon. s Wigram, Knt., formerly one of tli- Vice-Chancel lore (deceased). The KL'lit H..n. Sir Edward /. .nn.-rly Chief Ju- of tin- Supreme ( 'ourt at Calc\ Th< KL-lit lion. Sir Fndtnek 7VM-, Ilart., late Lord Chi.-f Baron oi lh, lIL-ht Hon. Sir George James Turner, Knt, one of the Lor I . ! t h- Court of Appeal in Chancery (decea* The Kiirht Hon. Sir Lawrence Peel, Knt., form.-rly Chief. Justice ot'thf Siijm'iM.- Court at Calcutta. Tli- Ui.-ht lion. Sir Alexander James Edmund Cockburn, ]' Lord Chief Justice of the Court of nuoen's Bench. The Right Hon. Sir John Tat/lor Coleridge, Knt., formerly one ot the Judges of the Court of Queen's ]!.-m-h. The Right Hon. Sir William Erie, Knt., lato Chief Justice of the Court of Common Pleas. The Ili-ht Hon. Sir James William ColvUe, Knt., lute Chief Justice of the Supreme Court at Calcutta. The Right Hon. Sir Edward Vauglian Williams, Knt., late one < )f the Judges of the Court of Common Pleas. The Right Hon. Sir James Plaisted Wilde, Knt., Judfi'' of H.-r iesty's Court of Probate and Divorce. Uiirht Hon. Sir FUz-Roy Edward Kelly, Knt., Lord < :i of thv Court of Exi'h-iui-r. The Right Hon. Sir lli-liard Torin Kindersley, Knt.. lute one of the Vice-Chancellors of the Court of Chancery. The Right Hon. Sir William Bovill, Knt., Lord Chi 1 .1 notice of the Court of Common Pleas. The Ri.nht Hon. Sir John Rolf, Knt., one of the Lords Justices of the Court of Appeal in Chancery. w REPORTS, UABY. 1608. EEEATA. Page. Line. 20 26, for " licenses " read " licensees." 36 28, after " Ex parte Peele " insert " (2) " and add a note " (2) 6 Ves. 601." 44 3 from bottom, for " at " read " a." 109 6 from bottom, for " persons " read " person." 163 9, for "neither could be a Commettant" read "neither could he be a Commettant." 225 9 from bottom, for " claimed to regain it " read " claimed to retain it." 356 14, for " September, 1830," read " September, 1860." 359 10, for " exercitation on her behalf " read " exertion on her behalf." 362 14 from bottom, for " Burgess " read " Burgers," and throughout case. 518 6, after " Viet." insert " c. 83." 525 13 from bottom, for " Supreme Courts in Westminster " read " Superior Courts at Westminster." tETOBTS, .*, ISoB. A TABLE OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME. " AGRA," Tho . Allan's Patent, In re 'Attorney-General of New South Wales v. Bertrand Attorney-General of Victoria, In re 147 Australasia, The Bank of v. Flower Bank of Upper Canada, The v. Bradshaw . Bertrand, Eeg. v. Bradshaw, The Bank of Upper Canada v. Briscall, Ohrloff v. . Brodie, Carmichael v. Brown, Gugy v. Bruneau, Her Majesty's Procu- reur v. Burgers, Murray v. . Carmichael v, Brodie Carter, Nunes v. Casanova v. Reg. Chambers v. Davidson Cowasjee Eduljee, Page v. Dallimore, Keg. v. . PAGE PAGE . 501 Davidson, Chambers v. 296 ifh 507 Doyle v. Falconer . 328 LLJLL 520 " Elizabeth Jenkins," The 601 r m ifp 1 4-7 ,iv / o J- JT I Falconer, Doj'le t>. . . 328 V. 27 Flamank, Simpson v. 463 Flower, Eolfe v. 27 V. . 479 lasia v. 27 520 George v. Eeg. . 389 jpei Gloahec, Pease v. . 219 479 231 Gugy v. Brown 411 . 454 " Hebe," The .... 378 . 411 "Helene,"The 231 cu- Herbert's Patent, In re 399 . 169 Her Majesty's Procureur v. Bru- 362 neau . 169 Hocquard, Papayanni v. . 250 . 454 Herri ck v. Sixby 436 . 342 Hughes, Eeg. v. 81 115 , 268 . 296 " lona " The . 426 . 127 Jersey, In the matter of the Jurats 13 of 94 UwM T\I:U: OF CASKS I:I;I>OI;TI:I>. PAOB i AOE Jones, Walker v. . . . 60 Beg. 9. Bertrand 620 M Kill >y r. The Owners of the & 341 c. Dallimoro . . , Oeorgi 881 Lambe, Macdonald v '"'' r. Hughes 81 Leach, Parker r. 312 r. Lerien 586 Le Gal laid, M 470 , : ... 198 I,.-ith's rotate, In re . \\ ... 405 . 586 irdo Schmidt," The . 115, 268 Rolet 198 M'-hiTiimtt, In re 260 . Maodonald r. Lambe 539 Mallet's Patt-nt. In re 308 -Marie Joseph," The _:er r. Le Gallais 219 470 Salsse, S^randat v. . " Scindia," The I'll o Murray r. I'.tirgers . isawmy Jagav n Y ttapa ucataswara Yettia 362 1 Scott v. Paquet Sorandat r. Saisse . Simpson r. Flamank Mgapore," The . 378 Nawab Sidhee Nu/.nr Ally Khan 0.L' xirdhyaram Khau New Brunswick and < 'anada L'ail- 8 " Sir Kalph Abercrombie," The Sixby, Jlerrifk r. Stevens, Williams v. way Co., N\ irkhaiu v. . 64 N imes v. Can Trotman's Patent, In n 118 Ohrloff v. Briscall . . 231 Page . Cowasjee Edul jee . Papayanni v. Hocquaid . . 250 ; net, Scott r. . . .552 Parker c. Leach Pease r. Gloahec . . .219 Poole's Patent, In re . . 514 ver, Webster r. . . .150 Kajah Oojoordhyaram Khan, vab Sidhee Nuzur Ally Khan r. . True Blue," The 250 \ . lasquez," ITie . . .494 Vencataswara Yettia. Mutus,. Jagavera Yettipa Naiker r. . 1 Walker r. Jones ... 50 Wallace, In re . . .283 \\VU:<.-r r. !W,.-r . . . 150 ^ i kbam c. ITie New Brunswick and Canada Kailway Co. . 64 Williams v. Stevens . . 352 Wilson . Beg. . . .405 TABLE OF CASES CITED. [Those in Italics have been commented on, impeached, or overruled.] Aberdeen Railway Company v. Blakie Acebal v. Levy " Adams," The . Aga Kurboohe v. Reg. Alcock v. Cooke . Alston v. Herring Alton Woods, The Case of Ames, In re Anderson v. Dunn Andrews v. Elliot . . - Antigua, In re the Justices of "Ann," The " Atlas," The Atteiiborough v. Kemp Attorney-General v. Chambers v. Parnther v. Siddon v. Stewart of the Isle of Man Cowley .... Aube's Patent, In re Australasia, Bank of, v. Harris PAGE . 1 Macq. Sc.'Ap. 461 . . 486 . 10 Bing. 376 . . . 135 . 1 Edw. 298 . . . 212 . 4 Moore's P. C. Cases, 239 . 528 . 5 Bing. 340 . . . 86 . 11 Ex. 822 . . 237 . Co. Rep. Pt. 1, pp. 513 . 544 . 3 Moore's P. C. Cases, 409 . 528 . 6 Wheaton, Amr. Rep. 204 . 339 . 5 E. & B. 502 . . . 208 . 1 Knapp's Rep. 267 . . 294 . 13 Moore's P. C. Cases, 198 . 387 . 5 Notes of Cases, 50 . . 498 . 14 Moore's P. C. Cases, 351 . 407 . 4D. M. &G. 206 . 92,86 . 3 Bro. C. C. 440 . .. 558 . 1 Cr. & Jer. 220 . . 212 . 2 Mer. 143 . . 86 v \ 12 Moore's P. C. Cases, 27 . 149 . 9 Moore's P. C. Cases, 43 . 516 . 15 Moore's P. C. Cases, 97 . 346 B. Bakewell's Patent, In re . Barrow v. Coles Barry v. Butlin . Battiscombe v. Eve Beaumont v. Barrett Beavan v. The Earl of Oxford " Beaver," The . Becke v. Smith Benham v. Keane 15 Moore's P. C. Cases, 385 . 510 3 Camp. 92 . . 224 1 Moore's P. C. Cases, 98 . 206 7 L. T. (N.S.) 697 . . 316 1 Moore's P. C. Cases, 59 . 334 6 D. M. & G. 507 . . 72 1 Dods. 152 . . . 212 2 M. & W. 191 . . 346 1J.&H. 685 . . 73 zii TABLE OF CASES CITED. Bennett, Ex 10 Bentiock v. Williuk Berrington's Patent, In re Berrinjrtoo v. Evans Bett'a Patent, Jn re .1111, Kx |rte v. Dawaoa Blakit- ridge . Bowdt-n, Ex |*rte Brass v. Unit land . F.ynon . re v. Gugy . v. North . Bunbury v. \\"M Bunny r. The Judges of New Zealand Burdett v. Abbot But.. r . Bynner t>. The Queen 10Ve.304 . . 4.-.; . Coryton's Law of Patent, . 509 3 Y. A C. 884. . 71 1 Moore'. P. C. C* (N.S.) 49 616 Cooke'i Bnk. Law*, 634 . 84 Jac. . -u4 . 16;;. . . 46 . 287 c. Rep. 880 . 1 Burr. 31)3 . . .527 J. (g.B.) 193 . . :;::G 2 Moore'a P. C. Ca.es (N.S.) 841 419 11 Iw. Can. Kep. 408 . 417 8 Kx. 1 . . . 287 1J. & W. 256 . .302 r. M.*r,-> I'.C. Cases, 164 . 298 14 East, J37 . 7 11. A- N. 826 C. 18 . . . 317 9 Q. B. Kep. 523, 529 . .bo C. Calvin's Case Cambridge v. Anderton Cameron v. Eraser v. Kyte . Campbell r. Hall . Cams Wilson's Case Chabot v. Sewell . fort Chinerey v. Viall . " Cliristiana," The Christie v. Unwin " Clarissa," The . Clifford's Patent, In re Clifford i'. V cs. Ex part . Cuming v. Brown . 7 Co. Rep. 21a. . . 108 2 B. & C. 691 . . . 135 Cases, 1 . 206 3 Knaj.p's P. C. Cases, 332 . 86 P. 204 . . .545 7 Q. B. 984 . . .295 1 L< p. 4C6 . . 419 IOC. R. ( N.S.) 802 . . 235 :. H.&N. 258 . . 135 r.'s I'.C. Cases, 160. 4.,. 1 1 A. & E. 373, 379 . .335 12 Moore's P.C. Cases 340; 8. C. Sw. 1L . . 253 Note .... 402 IB. &AL498 . . 317 2 Bro. C. C. 595 . .34 9 East, 605 . .225 D. Falypll r. Tyror . 11 r. Phillips Davenport, Ex parte < i'. Garrt-tt . Devaynes v. Noble Dew v. Clark 6 Jur. (X.S.) 335 1 C. M. &1 1 M. D. & De G. 313 6 Bing. 716 1 Mer. 530 1 Add. Eoc. Kep. 279 163 335 36 237 43 558 RrroRTS, us:, isos TABLE OF CASES CITED. xiii "Diana," The Dill v. Murphy . . . Dimes v. Dimes . Ditcher v. Deuison . . Dixon v. Gayfere . Doe d. Carter v. Barnard . . Doe d. Wyatt v. The St. Helen's Runcorn Gap Railway Company Dumaresq v. Le Hardy . Downes v. Grazebrook Downie and Arrindell, In re Duncan v. Thwaits Dyer v. Pearson . PAGE 4 Moore's P. C. Cases, 11 ; S. C. 1 W. Rob. 135 . 429, 432 1 Moore's P. C. Cases (X.S.) 487 335 10 Moore's P. C. Cases, 422 . 558 11 Moore's P. C. Cases, 324 . 465 17 Beav. 421,429 . . 546 13 Q. B. Rep. 945 . . 546 2 Q. B. Rep. 364 . 74, 78 1 Moore's P. C. Cases, 127 , 386 3 Mer. 209 . . . 353 3 Moore's P. C. Cases, 371 291 3 B. & C. 584 . 336 3 B. & C. 38 . 224 E. Eastern Archipelago Company, The, v. Reg. Eichholz v. Bannister Ellis v. The Sheffield Gas Consumers Co! " Evangelismos," The Eyre v. McDowell . 2 E. & B. 94 . . .88 34 L. J. (C.B.) 105; New Rep. 87 135 2 E. & B. 767 . . . 157 12 Moore's P. C. Cases, 359 , 409 9 H. L. C. 619 73 F. Falkland Islands Company, The, v. Reg. Farnworth v. Hydo Farquharson v. Balfour . Fenton v. Hampton . Filliter v. Phippard . Fitt v. Cassauet . Forbes v. Eden Foster v. Colby . Fraser v. Burgess Free, Ex parte Freeman, Ex parte Fremoult v. Dedire Fripp v. The Chard Railway Company 3 Moore's P. C. Cases, 299 5 New Rep. 488 3 Sim. 210 11 Moore's P. C. Cases, 347 11 Q. B. Rep. 347 4 M. & G. 898 . 4 Court of Sess. Cases (3rd p. 143 3 H. & N. 705 . 13 Moore's P. C. Cases 2 Gl. & Jam. 250 Buck, 47 I P. Wms. 429 II Hare, 241 . Ser.) 524 135 303 333 163 135 368 237 303 35 34 74 74 Gandy v. Jubber . . "George," The . Gillard v. Brittan . Gillespie v. Thompson Godfray v. God fray Gooroopersad Knood v. Juggutchunder Grant v. Mills Graves v. Ashlin . " Great Eastern," The . Greathead's Case 33 L. J. (Q.B.) 151 . . 162 4 Notes of Cases, 161 . . 498 8 M. & W. 575 . 135 6 E. & B. 477 . . . 237 3 Moore's P. C. Cases (N.S.) 316 358 8 Moore's Ind. A pp. Cases, 166 3 2 Ves. & Bea. 306 . . 55 3 Camp. 426 . . . 135 3 Moore's P. C. Cases (N.S.) 31 505 Cust's W. 1. 1. E. Acts, 219 . 303 sir TABLE OF CASES CITED. . Urill v. General Iron Screw Colliery Com-) pany . Qnernfley/In re the States of Gugy v. Ferguson . - . ( / v < \ < i .J " 14 Moore's P. C. Casea, 868 3 El. & a 688. 11 lx>w. Can. Kep. 409, 486 r*o 164 237 106 H. y v. Bazendale . . . - 'ii v. Wright Harriott's Case . its v. Gatheroole " ! 1< my Kwbank" and Cargo, The Hen iliahopof) v. T. . . Hoch^ i Tour . liocquard v. inirne and Shecrness Rail- . iison Howard v. Gosset Ilutcliinaon v. Guion 341 2 . DeG. 644 . . 86 4 Moore's P. C. Cases, 407 . 206 . ;:;;:, \V. I. I. K. Acts, L'71 . 303 . M. & De ' ;_} . 468 \ . Law i:foore's P. C. Cases, 189 r . 258 Law Kcp. IP.. .495 J. Jackson, Ex parte v. Lawton James, Ex parte . " Jane," The Jersey Bar, The . , In re the States of Jewetson v. Dyson Johnson v. Fesemeyer - v. Ellis v. Gough . 1 Ves. Jun. 131 . 36, 34 10 John's Amr. Rep. 23 . 544 8 Ves. 344 . 486 L Rep. 338 . 245 13 Moore's P. C. Oases, '117, . 9 Moore's P. C. Cases, 185 108, 110 ! M.vv W.585 ..&J. 13 . .346 ..'5 . .317 3 Moore's P. C. Cases (N.S.) 1 206 Kielley v. Carson. Kingsford v. Merry K. 4 Moore's P. C. Cases, 63 329, 333 11 Ex. 577 ; S. C. I H.& X. 503 223 TABLE OF CASES CITED. Kinlock's Case Knight v. Fox . Foster, 16 , 5 Ex. 721 PAGE 524 162 Lacey, Ex parte . " Lady Ann," The Lawrence v. Sydebotham . v. Wilcock Lechmer Charlton's Case Lickbarrow v. Mason Liddiard, Ex parte Loaring, Ex parte Lockhart v. Hardy Long v. The Bishop of Cape Town 6 Ves. 626, 628 . . 486 7 Notes of Cases, 369 . . 503 6 East, 45 . . 245, 457 11 Ad. & El. 941 . . 200 2 My. & Cr. 316 . . 290 2 T. R. 63 ; Sm. L. C. note, 431) 00/l (Edit. 1841). . .f z/ * 2 M. & Ayr. 87 . .34 2 Rose's Bank. Cases, 79 . 55 9 Beav. 349 . . . 56 1 Moore's P. C. Cases (N.S.) 411 368 M. Mac Dowell's Case Mackintosh v. Mackintosh . A Maclean v. Dunn . . . . McMillan v. The Free Church of Scot- land V .... Magdalen College Case Maharajah Sutteeschunder Roy v. Gune-) schunder . . . .) Major v. White . . ... Mallett's Patent, In re " Malvina,"The . . . " Margaret Mitchell," The Martindale v. Smith " Meander," The .... Medora Caledonian Steam Company v.\ Stuttan . . . .J Miles v. Atherton \\.\ "j Milgate v. Kebble Montreal Assurance Company v. M'Gil-) livray . . . . .j Morley v. Attenborough . Mo rrison v. Morrison Motz v. Moreau . Gust's W. 1. 1. E. Acts, 300 . 303 2 Court of Sess. Cas. 1357 (3rd) n . Ser.). 4 Bing. 722 . Court of Sess. Cas., vol. *xxii. (Sec. Ser.) 290; S. C. vol xxiii. p. 1314 11 Co. Rep. 75 . 8 Moore's Ind. App. Cases, 164 . 7 C. & P. 41 . Law Rep. 1 P. C. 308 . 1 Moore's P. C. Cases (N.S.) 357 Sw. 382 . ... 1 Q. B. Rep. 389 1 Moore's P. C. Cases (N.S.) 63 5 Notes of Cases, 156 . 3 Burge's Com. on Col. & For. Law, p. 350 . . 303 3 M. & G. 100 ; 3 Sc. (N. S.) 358 135 13 Moore's P. C. Cases, 129 . 388 3 Ex. 500 . . . 135 2 Sm. & Giff. 564 . . 303 13 Moore's P. C. Cases, 398 . 396 136 368 85 3 237 401 429 136 134 429 253 " Neptune," The . Newell v. Elliott . " Newport," The . Newsom v. Thornton Newton's Patent, In re N. 12 Moore's P. C. Cases, 346 . 253 4 Jur. (N.S.) 562; 27 L. J. \ K1ft (C.P.)337 . . ./ 5 11 Moore's P. C. Cases, 155 . 270 6 East, 17 ... 224 15 Moore's P. C. Cases, 176 . 616 xri Nilbett v. Dixoo . Nga liooDg v. Reg. ; h American," The . M. & Y. 973 7 M...P-.H tad. AS;-, r 1 . C. 7.' . Ml 3tt7 OrDona,"The . OBtoee,"The O. j 1 Bpink's Eco. ft Adra.J , )A . A . a \ f TO. 4O9 *wCP A"* 1 . 9 Moore's P. C. Caw*, 160 . 407 11C. B. Rep. IMJ P. Palmer r. Parker v. Patrick . Pater, In re PatereoD v. McCallum Patten v. i'honi|ou Peachey v. Rowlands Peacock, Ex m: v. Bell and Kendal Peele, Ex part . .tent, In re IVrry v. Rirker . IVttman v. Bril Phillips v. Clark . Pigott v. Eastern Railway Company Plummer, In re . Pooneakhoty Moodehar v Rex 27 Beav. 349; S. C. 28 BeaT.\ 341 . . / .I T. K. IT.". . 33 L..T. (N.S.) M. C. 142 . 294 t's Low. Can. Rep. 429 . 646 3M.&8. 350. . .224 . 15. RfX 1-2 I-:, ^5 1 Wins. Saund. 74 b. . . 337 6Vea,601 . . 40,44 2 Webs. Pat. Cases, 17 1.1 8Ves. 527 a . . .66 1 I'h:ll. :,!., . . 317 2C. 15. (N.S.) i:,6 . . 238 8 C. B. Rep. 229, 240 . . 164 1 Ph. 60 . .46 3 Knapp'a Rep. 348 . . "jj^ Quebec Fire Assurance Company, The, v.) 7 Moore , 9 p> c c ou Louis . . . .) . 164 Rainy v. The Justices of Sierra Leone Rajah Perladh Sein v. Baboo Bhoodo) Singh .....} Rajundemarain Rae v. Bijai Govind Sing Itandleson v. Murray Rankin v. Dixon .... Reedie v. The London and North Western) Railway Company . . .) Reward, the .... Reg. v. Alloo Paroo v. Belcher .... 8 Moore's P. C. Cases, 47 . 267 10 Moore's Ind. App. Cases, 78 13 1 Moore's P. C. Cases, 117 .386 8 A. &E. 109. . . 1>.J 9 B. M. & Y. 1048 . . 1G4 4 Ex. 244 2 Dods. 270 . . . 212 5 Moore's P. C. Cases, 296 . 524 4 Moore's P. C. Cases, 471 . 206 TABLE OF CASES CITED. Reg. v. Clarke . . . - v. Dean . . . - v. Dulwich College . . - v. Eduljee Byramjee . - v. Gompertz . . - v. Jose Alves Dias . . - v. Joykissen Mookerjee . - v. King . . . Q , f - - &/ . Rex v. Clement . . . - v. Davis . . . - v.Edwards ... - v. Foster . . . - v. Mawbey . . . - v. Reynell . . . - - v. Sir Oliver Butler . . - v. Streck . . . - v. The Inhabitants of the County Oxford. Richards v. Birley . . Ridgway, Ex parte . . Rogers v. Rajendro Dutt RU Col I an ^ Rose v. Watson PAGE .7 Moore's P. C. Cases, 77 92, 85 . 12 M. & W. 39 . . 213 . 17 Q. B. Rep. (N.S.) 615 . 207 . 5 Moore's P. C. Cases, 276 . 524 . 9 Q. B. Rep. 831 . . 527 .6 Moore's P. C. Cases, 107 . 208 . 1 Moore's P. C. Cases (N.S.) 272 524 . 1 1). & L. 721 . . .337 I 17Q.B.Rep. 238, S.C. ) K0n K0ft .{ 2Den.C.C.281,286f 520 > 526 . 4 B. & Aid. 218 . . 294 .12 Mod. 9 . .527 . 3 Camp. 208 ; S. C. 4 Taunt, 309 524 . 7 C. & P. 496 . . .526 .6 Term Rep. 619 . . 526 '6 East, 315 . . . 527 .3 Lev. 220 . . . 85 . 2 C. & P. 413 . . .526 f) 10 i? 4. Ain AIK KOC > 13 East, 410, 415 . . 526 .2 Moore's P. C. Cases (N.S.) 96 407 .11 Jur. (N.S.) 97, C. . . 358 .8 Moore's Ind. App. Cases, 103 3 3 Mac ' & Gon 125 ' ' 74 10 H. L. C. 672 73 of S. Sack v. Ford .... Sadler v. Henlock . . . . " Sarah," The . . . . Sawyer v. Vernon . . . . Sayers v. Whitfield , . . Schoole v. Salt . . . . Q v, iv, TI, j 'Schwalbe, The. " Scindia," The . . . . Shaw v. Simpson . . . Shepherd, Ex parte . . . Simister's Patent, In re . . . Simond v. Hibbert . . . Smith v. The Justices of Sierra Leone . Spalding v. Ruding . . . Sree Mutty Ranee Surnomoyee v. Maha-) rayah Sutteeschunder Roy . .[ Steel v. South Eastern Railway Company Stephens v. Wilkinson . . . Stevenson v. Newman . . . Stockdale v. Hansard . . . Stocks v. Booth . . . . Stoke's Case . . . . Stuart v. Bowman . . . " Sydney Cove," The . . . 13 C. B. (N.S.) 90 . . 237 4 E. & B. 570 . . .162 1 Rob. 313, note . . 253 1 Vern. 370 . . . 86 1 Knapp's P. C. Cases, 148 . 303 1 Sch. & Lef. 176 . . 56 Lush. 239 ; S. C. 14 Moore's P. C. Cases, 241 . 429,498 Law Rep. 1 P. C. 241 . . 458 1 Y. & C. (N.R.) 732 . . 303 2 M. D. & De G. 204 . .35 4 Moore's P. C. Cases 164 . 402 1 Russ. & My. 719 . . 303 3 Moore's P. C. Cases, 361 . 267 G Beav. 376 . . . 225 Q -KT T A A r m 1f , K 8 M <> or ^Jnd. Ap. Cases, 165 . 4 16 C. B. 550 . . . 162 2 B. & Ad. 320 . . 135 13 C. B. 285, 302 . . 223 9 A. & E. 1 . . .335 1 T. R. 428 . . .319 6 C. & P. 151 . . . 526 3 Low. Can. Rep. 310 . . 545 2 Dods. 13 . . . 30a VOL. I. TABU: MF CASKS cm:i> T. Tannent v. The Earl of Glasgow Tharp, In n '< ople v. Mauran :,tun r. Court Trotman's I'atmt, In rt Turbcrvillc v. Starape Turner v. Tho Parishioner* of iiauwoll MM j 2 Court of Se*. Oaa, 22 (3rd\ -o . ./ J I>e O. M. A. Q. 214 6 Dcnio'aRep. 898 . . 544 8 D. M. & Do G. 1SI3 . 62, 56 Law Rep. IP. C.I 401,516 . loe of Cases, 868 . .316 V. Vanghan v. Menlove Vcre v. Ashby " Vixen," The V. C.) 4f>8 !< !', &C.298. 1 Dods. 161 34 212 w. Walter v. Gunner Waring, Ex parte Warner r. (iatrr . /.inthus, In the Matter of Wliite v. Garden . Wliitworth v. Gaugaiu " William Beckford," The Williams, Kx i>arte .. v. The Bishop of Salisbury Wilson v. The Newport Dock Company r. Wils>n . Wintc-r v. Innes . "Wiuwick/'The. Woodcroft's Patent, In re Woollocombe v. Ouldridge Wright's Patent, In re . 1 Hagg. Con. Hep. 314 . 317 2 Hose's Bank. Cases, 182 .55 2 Curt. :;ir. . .316 5B. & A. 817 . IOC. B. 919 . . .223 IPh. 728 ;S. C. 3 Hare, 416 Cr. & Ph. 325 3 Rob. 355 Buck, 13 .. . 34, 44 2 Moore's P. C. Cases (NJ5.) ) ^ 97K J01 f A** 3<5, 391 . | 1 Law I;. -,,. Kx. 177 . 248 8 Low. Can. Hep. 34 . 545 4 My. & Cr. 101 . 34 2 Moore's P. C. Cases, 30 J Webs. Pat. Cases, 32 MO 7 Add. 1 h . 317 1 Webs. Pat. Cases, 576 402 Xenus v. Aldersley 12 Moore's P. C. Cases, 359 . 409 Y. Yates v. Hoppc 19 L. J. (N.S.) C. P. 180 846 Casts BEFORE THE JUDICIAL COMMITTEE AND LORDS OF HER MAJESTY'S MOST HONOURABLE PRIVY COUNCIL. MUTUSAWMY JAGAVERA YETTAPA NAIKER, j. o. APPELLANT ; 1 865 VENCATASWARA YETTIA, RESPONDENT. ON APPEAL FROM THE HIGH COURT OF MADRAS. Practice Appeal Under appealable value. * Special leave to appeal granted, notwithstanding that no application had ' been made for such leave to the Court below : upon the allegation, that though the amount decreed was much under the appealable value, the original demand being necessarily limited by the jurisdiction of the Court in which the suit was originally instituted, yet the subject-matter at issue exceeded in value the appealable amount. 1_HIS was a petition for leave to appeal from a decree of the High Court at Madras, dated the 3rd of January, 1865, which affirmed a decree of the Civil Court of Tinnevelly of the 31st of March, 1864, awarding to the Plaintiff (the Respondent), as the illegitimate son of the Appellant's eldest brother, a former Zemin- * Present : LORD CHKLMSFOKD, LORD JUSTICE KNIGHT BRUCE, LORD JUSTICE TURNER, SIR JAMES "W. COLVILE, SIR EDWARD VAUGHAN WILLIAMS, and SIB LAWRENCE PEEL (Indian Assessor). VOL. I. 3 B 2 CASES IN THE PBIVY (X J- 0. d0r of Yeitiapooram, an aiinu.il mai.-.;. i,,.: Mi tin* \illagoeforniiugll. >pvrty oi sent Zen*n~ *AW*Y A***'* family. Tht Defendant (the present A \ : the J Yrrr*i^A I'^n'ti^ .-laini. all hat he WES Dot t NAIXJD the late/,, : iiat his mother was a dancing woman (wear VEKCATA* Hotter on h . -In -1 ! a Pagoda at 'within tin- Z'miwlary ; this Ifo/fer ia 2o#y (nuptial mark), worn ly married v.oni'-n among Hindoos, and he insi-t.'d that she was a Dasce, or of caste, cohabiting with several men. It the .-nit \\a> ri-inall\ i l.y tin- Kesponilnit in the Court of th< I'l-incijial Sudder Anieen of i7y. praying that a decrcr might be passed, a\\anling to liim anl his heirs, on account of their maintenance, Us. 8,400 per annum, to be paid from the income of the Zemindary. That Court, on the llth of November, 1863, dismissed the suit with costs, wh.-reupon the Respondent aj>p-al"l t.. th- Ci\il Court of Tinnevefly, which reversed that decision and decreed to the Respondent an annual sum of Rs. 2,500 for maintenance, being the largest sum that Court had jurisdiction to award, which decree uas ailinnrd on apjxjal by th<- High Court at Madras. The pre- sent 'Petitioner, the Zemindar of Yettiapooram, appb'ed to that Court for a review of the decree of the 3rd of January, 1865, which application was rejected with costs. No application \\a- made by the Petitioner to the High Court for leave to appeal to Her Majesty in Council, inasmuch as he was advised that, the judgment being only for Rs. 2,500 (though the real value of the annuity was much beyond that sum, and exceeded Rs. 10,000, the appealable value), applications for leave to appeal had, under similar circumstances, been refused both by the Suddcr and High Court, on the ground that those Courts were bound by the actual amount of the judgment. The Petitioner, therefore, now applied direct to Her Majesty in Council for special leave to appeal, stating various points of law involved in the suit, which affected the caste, or status, of the parties; he, moreover, urged that the suit having been originally brought in the Court of the Si which Court was prohibited from entertaining auv suit where the sum at issue exceeled VOL. L] CASES IN THE PEIVY COUNCIL. 3 Us. 2,500, lie was precluded from availing himself of important J. C. evidence in that Court, or bringing the same before the High 1865 Court, and submitting to that Court many questions of fact and law affecting both the status and claim of the Plaintiff, and from bringing the same ultimately on appeal before Her Majesty in Council; and he insisted, that it was worthy of the gravest VENCATAS- consideration, whether a Plaintiif by instituting a suit in an inferior Court for a sum below the appealable value Es. 10,000 to Her Majesty in Council, when the amount at issue was really of much greater value, as in this case, should by such means be enabled to exclude an appeal against a judgment of the High Court, if the case should be carried there. The Attorney-General (Sir E. Palmer), with whom was Mr. ftlacJceson, for the Petitioner : This is a very important application* The circumstances disclosed in the Petition shew abundant grounds for the allow- ance of the indulgence we ask for. The question at issue involves important points of law, affecting not only the interests of the parties claiming and disputing the right to the annuity sued for, but questions of caste and status of the utmost importance in India. In the case of Rogers v. Eajendro Dutt (1), though the amount was under the appealable value, this Court gave special leave to appeal on the ground that an important point of law was involved. It did not there appear that any application for leave to appeal had been made to the Court below the Supreme Court at Calcutta. In the cases of Maharajah Sutteeschunder Eoy v. Guneschunder (2), Gooroopersad Knoond v. Juggutclmnder (3), the principles upon which the Courts in India are to estimate the appealable value prescribed by the Order in Council of the 10th of April, 1838, were distinctly stated by this Court ; in both these cases it was held that where interest was by the decree to be added to the principal sum decreed, and the aggregate amount exceeded Us. 10,000, the case was within the appealable value, and leave to appeal to Her Majesty in Council was given. But that course could not be followed in this case, because there was nothing to add to the decree which would raise it to the appeal- (1) 8 Moore's Ind. App. Cases, 103. (2) Ibid. 164. (3) Ibid. 166. 3 B 2 4 CASES IN Tin: PRIVY Co; Nlc value. In the case of Sree ' '-*' xkundcr #oy(l> \vas v^v^ \\\M\ charged with which tin- Xndder 7m*fA Court .ti-.n of : 1-iihan. ta.822 ISaa. It was he],! i, v ih- c,n:rt !ue .(' tin- subject-matter in suit, in tin- circum-tauc..*. t.ii-lit - ! as amounting ti IN. 1 P< : :'. Thl ur The jinnuit;. 1 l.\ ill-- ' : ! Iliirli Court \\\-i\ \\r . tll'UL r ll :!UlU:tl Valllf <'lil\ of IN. . tli. \;ilil- tli.-ili It-. 1. tin- IIJ.JH .. !ur unl-r the Onl.-r in Cuiincil. Th-r<- i- anotln-r -i.ii which miirht. \M.- ajij.rr!, utitli- u- t< tin- iny Mad. Reg. III. of 1833, 8. 4, to suits under IN. _',500. Tl 1 from that Court 18 to the Sn>ll> /-. no\\ the Iliirh Court. l>ut the >uni clai: decreed beini: under the a|i]K-:ilaMe value from that Court, no appeal can !* granted 1,\- the Ili^li C. urt to Her Majesty in Council, and thus thou-h tl:-- te amount !ar alo\e the apjH-alalile value, the >uit l-!iiir really oi value of an annuity of IN. : ' l.y -uint: Imt for 01 annuity, and in a Court not having jurisdiction alnAc the >um of IN. L'.." no, tho ]>efend;int in the Court l>eh\v i< ultini;. precluded from bringing an appeal to Her Majesty in Council, though the deci-ion against him involves not only an amount exceeding in value the requisite sum, but c. .nclud-s tioi. title and law which cannot be satisfactorily raised before the infe- rior Court or brought before the Iliirh Court. Sir Hugh Cairns, Q.C., and Mr. C. P. PhiUi r s, opposed the ap- plication. There are no grounds for this application. The ijue-tion before the Courts below was one of fact and not of law ; and the only question that can be brought here, if this appeal is allowed, is a question of fact upon the evidence. The facts li,- in a very narrow compass, taking them even from the statement for the Petition. (1) 8 Moore's Ind. App. Cases, 165. VOL. I.] CASES IN THE PRIVY COUNCIL. The Kespondent, the Defendant in the original suit, is the Zemin- J. C. dar of Yettiapooram, inheriting immediately from his brother 1865 Vencataswara, the last Zemindar. In 1854 the Petitioner's mother brought a suit in the Court of the Sudder Ameen of Tinnevellij against the Respondents, on behalf of her son, to recover posses- NAIKEB sion of a village, part of the Zemindary, which she claimed as VEMCATAS- a gift from Kumura, a previous Zemindar. This gift was, however, WABA ETT declared void for want of registration, and her claim was defeated. In September, 18G3, the Petitioner brought the present suit against the Kespondent for an allowance of Es. 8,400 for mainte- nance. The defence pleaded was that already stated, and the only issue raised was as to the status of the Petitioner's mother and liis paternity. No other issue was stated or applied for, and upon that issue the suit was dismissed. On the appeal to the Sudder Court the Petitioner raised no objection to the issues, but adduced further evidence of his claim, and no fresh point was raised or insisted on, as was open to him before that Court. The High Court, when the appeal came before them, proceeded on the same grounds. There is, therefore, no pretence for saying that there are important questions of law which could not be raised in the Courts below, and can be determined here. If there had been any decision by the Court of the Sudder Ameen contrary to law or usage, it might, and, for aught we know, was brought before the High Court, under the provisions of the Code of 1859, art. viii. eh. x. sec. 372-5. Then, with regard to the sum at issue not being of sufficient value to allow of an application to the High Court for leave to appeal, if the Petitioner is right in his calculation, it was much above Us. 10,000, and at least the fact of such value ought to have been brought before the High Court, and an appli- cation made to that Court for leave to appeal, the omission to make which, under the circumstances, is fatal to this application. The observations regarding the institution of the suit in the Court of the Sudder Ameen cannot prevail to the prejudice of the Respondent. The Court of the Sudder Ameen was the proper and only Court in which the claim could be made in the first instance, and it is no ground for applying for liberty to appeal here that that Court, which is limited by law to claims of a certain amount, took cognizance, as it was bound to do, of this claim, and rejected it, QMB IN Tin: i-i;i\v COUNCIL. [L.R. LORD CHELMSFOBD: ll'^' -rdships ' -able dii v - to a IfimvAwvT conclusion in this case. the jx-culiar cir.-mn- Trr*rA stances, that leave to appeal oir/M to I, I doul>t that substantial quest law are i aso, i V X 'Y, ! - ft 01 ' *! :; P" n tnat pr" 1 ""!. if then- were no "ih--r. their WAEA XKTTIA. Lordships might IK? disposeimii:r. NTJZUB ALLY KHAN . APPELLAHT; 18C5 _> KA.IAH nn.lnol'in AKAM KHAN .... ItBSPONDEHT. <>.\ AlTKAl. 1 l:'M 'lllK liliill rul'KT OF P.KXOAL. / of proceeding! in Court Mow. Application to stay proceedings in a cause in which an appeal from an Order in th>- iiati'.re of an interl"Ciit<>ry Onl 1 1 < r Majesty in Council, or. Jit satisfactorily to shew tliat a serious iiijury will be the remit to the party applying unless asked for be granted, and that the , party applying has come pn-mptiy tu make the applicatiou. :v, au Appellant from an Order of the High Court of Judi- cature, which remitted a cans*-, api*-aled to that Court from the ZilUih ( back for the trial of issues framed in accordance with the ]>r(>visiona of Act No.8of 1859, s. 139, having failed in obtaining an Order from the Hi^h Court- to stay proceedings hi the Xilluh Court, i^intiii^ the appeal, but not having appealed from that ilt-cisu.n ; prc-sented a pet/ I : Majesty in Council ]>rayin<; that all proceedings in the remanded suit mi;4ht be staye;i of tlair right to interfere in such circumstances, held that the Petitioner had not shewn any such injury, or used such expedition as entitled him to ask fur a stay of proceedings. Queer?, whether, where an order has been made by tL B Court below refusing to stay proceedings, and sueh Order is not specially appealed from, the Judicial Cumin.- any authority to interfere, though an appeal is pending before them from a previous Order of the Superior Court the same suit, remitting the cause back to the inferior Court before \vhic! pending. A HIS \\asjan jijijdi.-ation to stay proceedings in a suit institnt. Sudder Court (after- wards th- Iliirh Court of Judicature) at Fort William, Bengal, an 1 by that Court, alter a hearing and ivhi-arinu-. remanded back to the Zilhih k>r trial on tho merits. The circumstances a- stated in the petition-of the * Present : LORD CHHJUSFOBD, LORD JCSTICE KKIGHT BBCCE, LORD JUSTICE TrnNKR, SIR JAMKS \V. ( 'OI.VII.K, SIR EDWARD VAVGIUX WILLIAMS, and SIR LA WRENCH PEEL (Indian Assessor). VOL. L] CASES IN THE PKIVY COUNCIL. Appellant, were as follow : On the 30th of May, 1860, a plaint J> c> was filed in the Civil Court of Zillali, Midnapore, by the Kespondent i^ against the Appellant and others to recover possession as mort- NAWAB T 1 />!! i SlDHEE NCZUR gagor of certain Pergunnans therein specified, charging the Appel- ALLY KHAN hint and other Defendants with fraud and collusion in obtaining RAJAH possession of the Pergunnalis, and for the sum of Ks. 2,72,000, the OJ g H 1 A Y ^ RAM alleged mesne profits. The Defendants put in answers to the plaint, and on the 10th of November, 1800, the cause came before the Zillali Judge, who framed issues of law and fact in pursuance of the provisions of s. 139, Act No. 8, of 1859. On the 19th of November, 1860, the first hearing of the suit took place before the same Judge, who gave judgment on the issues directed, in favour of the Appellants, and dismissed the plaint. The Eespondent appealed from this judgment to the Sudder Court at Calcutta, and on the 1st of June, 1863, the High Court, ] mving been substituted for the Sudder Court, reversed the judg- ment of the Zillali Court of Midnapore and remanded the suit back to that Court for trial upon the merits. The Appellant applied for and obtained a re-hearing by the High Court, which, on the 12th of January, 1864, affirmed its previous judgment and decree : whereupon the Appellant petitioned for and obtained leave to appeal to Her Majesty in Council from such decree and judgment. The Appellant in his petition to the J 1 iirh Court for leave to appeal against the before-mentioned decree and judgment, prayed that until his appeal (for leave to present which he was then petitioning) should be heard, or decided, or until the further order of the High Court, all further proceedings in the High Court and in the Zillali Court of Midnapore should be stayed ; and on the 16th of June obtained an order nisi calling on the Kespondent to shew cause why the hearing of the suit under the aforesaid order of remand should not be postponed, pending the result of the appeal to Her Majesty in Council, which Order, on cause being shewn, was discharged on the 25th of August, 1865. No appeal was asked for or interposed from this Order of dismissal, but the Ap}K)llaiit, believing, as he stated in his petition, that IK- would be put to great trouble and inconvenience, and would be forced to incur great expense in and about obtaining the evidence 10 CASES IN THE PRIVY COUNCIL. I..!:. J.G. \\lnVh In in,] l,n advised and believed would bo necetaary to I- 1 '-"- n hi* In-half at th'- trial, and 1 ing advised aii'l I NAWAD ''"it tin- d.-terminat i.. : tin- issues in fact raised I: in the -uit would IM- wholly immaterial as regardt-d tin; result of tin- suit, if lie succeeded in his app- r Majesty in r.,mi<-jl, OofOODHTARAM which he had l.-.-M advi-.'d .r.l'l ]]': ;:. 11 wrioiLs injury will I*- th- n-Milt to th- j >'" ~ UI tin- May of proceedings is . s<-nnr ' Now. with regard to any suggested injury which may arise to OOJOODHTARAJf the IVt it i !l T ill Ol.e the delay B01 t granted, th' K " vs no ground wh.i- ; MipjMsiu^ that any such injury will In- sustaiiu- 1. All that he can . . that he may ! j.ut to costs the trial of these issues of fact remitted to the ZiUah ultimately the decision of th.-ir Lordships houl 1 !>. in his faM.ur. UJHUJ tin- 4068- tions of law which it is >ai-l arc rais<-n\d arise from the cause being allowed to take its course, and the issues of fact allowed to be tried in due form in the ZiUaJi Court of Midna- pore, there is no pretence for saying that any Mich injury will ai Then, has the 1'etitioner come prompt ly with his application? which is another essential requisite of an application f..r d- hi; for a stay of proceedings in any case. The appeal to the High Court of Judicature was decided finally on the 12th of January, 1804; on the 10th of 1-Ybnmry, J864, there was a petition for leave to appeal, and no application to stay proceedings ma-le till the month of June, 18G5. The delay was endeavoured to be accounted for from the Respondent having objected to the leave to appeal, on the ground that the six months ought to be dated from the date of the original decree, m\<\ from the order on review ; but that really appears to their Lord- ships to be no explanation at all, at least no satisfactory explana- tion of the delay which has taken j.laee, of sixteen or months before this application to stay proceedings is made. Under these circumstances, there being no proof of any serious injury which would be sustained by the Petitioner, by their Lord- VOL. L] CASES IN THE PRIVY COUNCIL. 13 ships, supposing they have the power to interfere, not interfering to J. C. stay proceedings, and on the other hand, the Petitioner not having 1865 come, as rightly and properly he ought to have done, promptly with NAWAB this application to stay the proceedings below, their Lordships think this petition ought to be dismissed, and with costs (1). * RAJAH Solicitors for the Petitioner : Young & Jackson. Solicitors for the Respondent : Wilson, Bristow, & Carpmad. THE QUEEN APPELLANT; j. a* AXD 1865 FREDERICK WILLIAM DALLIMORE, , Dec. 5 6 7 24 JOHN HENRY CLOUGH, AND J RESPONDENTS. WILLIAM BOGG ON APPEAL FROM THE COLONY OF VICTORIA. Victoria Crown Lands License Occupation Sale of Lands by the Crown Col. Acts, 24 Viet. No. 117, and 25 Viet. No. 145. Construction of the Victoria Colonial Acts, 24 Viet. No. 117, and the 25 Viet. No. 145, for regulating and amending the laws relating to the sale and occupation of Crown lands in the Colony. C. and I>. having been in the occupation of certain waste lands as licensees paying an annual rent, obtained from the Governor a license in writing to occupy the same for one year and no longer, subject also to the reserved right of the Crown, to sell or proclaim any portion of such lands, as a gold-field common without compensation for the loss of enjoyment to the licensee : , upon a sale being made by the Crown of a portion of such lands after proclamation, and the expiration of the tenancy for the year, that the Crown had, under the terms of the licenses, as also upon the construction of the Colonial Acts, an indefeasible title to such lands, notwithstanding the previous and subsequent occupation by the licensees, and payment of rent by them, which, under the circumstances, did not constitute a tenancy from year to year, or give the licensee any title to the lands in question. 1 HlS'was an appeal from a judgment of the Supreme Court of Victoria, making absolute a rule to enter a verdict for the Defen- (l) See upon this point Rajah Perladh Sein v. Balw Bhoodoo Singh, 10 Moore's Ind. App. Cases, 78. * Present : LORD CHELMSFORD, SIR JOHN TAYLOR COLERIDGE, SIR JAMES W. COLVILE, SIR EDWARD VAUGHAN WILLIAMS. 11 GASES r J. C. uts, in an a; he Crown against 1805 Respondente. ' '"' certain unsettled Cro\\ u lands kn ho MaidcnHffls, Wooddock and Lamplough runs. Of these 1 , the Lamplough run c- about 17,380 acres. There was not, I* l"i. tin- year 1861, nor until tin- jmssin^. in til-- year 1862, of the Colon t.. No. 145, ml! Land Act. any legislative provision t'nr grant in:: licenses to occupy for pastoral purposes the unsettled Crown lands of the Colony. The sale of such lands was , the Imperial Ad, ."> vV \ In Viet. c. Hil. Secti-in 1 oftl : Act provid.-d. that it should be lawful for Her Majesty to demise for any term, not exceeding fourteen years, any waste lands of the Crown in the'Colony, grant to any person or person-* a license for occupation, for any term not exceeding fourteen years, any such waste lands. The o'th section of this Act gave authority to Her Majesty by any order in Council to make and establish rules and regulations respecting such licenses or demises. Various Orders in Council \\-re made under the authority of this enactment, luivintr reference to grant of leases, but not applying to licenses to occupy for pastoral purposes. By the Imperial Act, 18 & 19 Viet. c. 55, generally known in the Colony as the Constitution Ad, the Legislature of the Colony of Victoria as now subsisting, was established, and by the Imperial Act of the 18 & 10 Viet, c, 56, the Act, 5 & 6 Viet. c. 36, and 9 & 10 Viet. c. 104, were repealed; and it was enacted, amongst <.th. r things, in substance by section 4, that it should bo lawful for the Legislature of the Colony of Victoria to repeal, alter or amend any Order in Council made under the authority of the 9 & 10 Viet. c. 104, and that until so repealed, and subject to any such altera- tion or amendment, even* such Order in Council should remain in force. YOL. I.] CASES IN THE PKIVY COUNCIL. 15 Various licenses to occupy the unsettled Crown lauds in the J. C. Colony for pastoral purposes had been, for some years previous to 18C5 1861, granted, from time to time, by the Government. According THE QUEEN to the custom prevailing at the commencement of that year, the D AL LIM OBE licensees of Crown lands paid an annual license fee of at least 10, and if the lands occupied exceeded a given area, or were capable of depasturing more than a given quantity of sheep and cattle, the license fee was increased in proportion. The lands in question comprised in the Lamplough run, were thus held by the predecessors of the Eespondents, from whom they derived title. On the 18th of September, 1860, the Act, 24 Viet. No. 117, entitled " An Act for regulating the sale of Crown Lands, and for other purposes" was passed by the Colonial Legislature. By the 71st section of that Act it was provided that the Governor in Council might proclaim that any Crown lands in the vicinity of any gold-field should be a common for the use of all holders of miners' rights, business licenses, and carriers' licenses, and other residents on such gold-field, and every such holder or other resident should from the time of such proclamation be entitled to depasture his horses and cattle on such common, subject to the rules and regulations thereinafter mentioned, and that such common should be called a "gold-fields common." By section 77 the Governor was empowered (inter alia) at any time to increase, diminish, alter or abolish any gold-fields common. By a proclamation dated the 28th of January, 1861, and pub- lished in the Victoria Government Gazette of the 5th of February, 1861, reciting and professing to be made in pursuance of the last mentioned Act, the Governor of the Colony proclaimed certain Crown lands in the vicinity of the gold-fields thereinafter men- tioned, which included portions of the Lamplough run, to be a gold-fields common within the meaning of the Act. At the time of the proclamation, the Respondents, Clough and Bogg, were in occupation of the whole of the Lamplougli run, and continued after the proclamation to occupy the residue not included in the gold-fields common, together with Woodstock and Maiden Hill run previously occupied by them. Up to this period no lease had been granted of the Lamplough or other runs,Jthe U; CASES IN Till! ri;!YYCOUN< j.c. -pondcnts aii'l tln-ir predeoeMon, holding only in 18C5 li' 'I under th.- pi TuBQrtJ > in Council. It apju-an d. 1. ppli- D **MOBJ '' atl '" U '"'' ''"' ^'"M"' 1 "' deceasore, under an Order in Council of tin- !th of M;uvh. 1>I7 made pursuant 1" til-' !' A 1 ' Vi.'t. Ut Hi) >Ucli lea-e On tin- 'Joth of March. 1 S ''.'J. th.- Respondents, Cfcff^A and Bogg, having niado application for tin- license to occupy tho LampUinj1i. \o\\ I. tin- (iovt-rnor id, do h.-r.-hy aiithori/..- th- said /'. II. < 'luiiyh &(.'.. ii|on payment by them of the sum of 10 sterling into the hands of the receiver at Melbourne, on or be ion- tho 31st day of March i and upon th due Rck&Oirledgmenl "t' such payment hen- made by the said receiver, t ...... cnpy the said \\a-te lands for the t-nn hereinafter mentioned. Upon the issue of this license by the .-aid r.-c.-iv.-r. the -an;.- is to operate and be in force from th- Ut day of January, 180'J, until the 31st day of December, 1> no longer." "Given under my hand at J/-//>0urrt, Victoria, this 2"tli ofMiu-ch, A. j. 1862. - //- 1 /;/ BarMy. " N.l>. Although the above-mentioned waste lands of the Cn>\\ n are described as l>einu r known as Lamplougli, yet it is to be under- stood that no right is hereby granted to occupy land merely because such land may have been at some time heretofore kno\\n or described as Lamplougli. and this license \\ill not authori/-- the said T. II. dough & Co. to occupy any land which is no\\. or \\hich may formerly have been known as forming part of such run, hut which shall be or may havo been lawfully taken a\\ay from such run, by or on behalf of the Crown, or the Board of YOL. L] CASES IN THE PRIVY COUNCIL. 17 Land and Works, by alienation or otherwise, howsoever; and J. C. the said T. H. Clougli & Co. shall not be entitled to any com- 1865 M*V^ pensation, or to a return of any portion of the above-mentioned THE QUEEN sum, if any portion of the above-mentioned waste lands of the Crown shall hereafter be alienated, or be otherwise lawfully dealt with by the Crown, or the Board of Land and Works ; or if the said T. H. Clougli & Co. shall be deprived of the enjoyment of any portion of such lands by reason of the same being proclaimed a common, or by reason of any other lawful act to be done on behalf of the Crown, or by the Board of Land and Works. "Received the above sum 10, per receiver. "A. S. Tliomson. "Treasury, Melbourne, March 31, 1862." Previous to the issuing of this license and on the 31st of December, 1861, Clough and Bogg had paid to the paymaster at the Treasury the sum of 99 10s. 8d., a portion of which was for assessment on stock, depastured on Lamplough station for the second half-year of 1861. And on the 30th of June, 1862, they I t:i id the sum of 329 11s. 8d. to the same officer, a portion of which was assessment on stock depastured on Lamplougli station for the first half-year of 1862. On the 18th of June, 1862, the Colonial Act, 25 Viet, No. 145, entitled an " Act to consolidate and amend the Laws relating to the sale and occupation of Crown Lands," was passed. By the first section certain Colonial Acts, including the 24 Viet. No. 117, and all Orders in Council, and regulations respecting the sale or other disposal of the waste lands of the Crown in force in Victoria at the time of the passing of that Act, were repealed, saving, however, all estates, rights, and interests created or exist- ing under or by virtue of the Act, 24 Viet. No. 117. The Act No. 145 was divided into parts. Part I. sections 1 to 11, was the introductory, Part II., sections 12 to 46, provided for the sale of Crown lands which were to be made under the direction of the Board of Land and Works. Part III. sections 47 to 62 provided for leases and licenses for other than agricultural purposes. Part IV. sections 63 to 79 related to commons. Section 63 suvcd (except as in the Act provided) all commons proclaimed under VOL. . 3 C lx CASES IN THi: I-KIVY < . [L.R. .1 i the Act _'! Vii-i \ . 117, i f penon entitled under tin- authority !' tin- l.i>t-iii.-nti..ii. -1 A.-t to depart ur hi-, Tm. <} i- horses ..r .-.ittl.- II|M,II any -u.-h c,,mm, -ii. EfootiOO '''"' gftl* th'- Governor in Council power in certain eM6t to ! iu lands to be a municipal common. <>r a /..M-li.M- common, .1 t-.un common, or a fanners' common, as the case might be ; section 67 referred tin- HL >minonage to all persons re*i ill- lands BO selected to be jn>.-laiiii-l. Section 77 pr..\j.l .| that nothing therein contaim-'l shoul-l pn-vi-nt th- i..n, ..r - ! .-ti-.n. or th. iin-l. r that A-t. of any land comprised in any common proclaim."!, or subject to li.-.-nx,^ before or alter th.- pa in:: ot' that Act: and tin- (lovcrnor in Council mif^ht at any tim- incrcas*-, dirnini-h. alt- i. or alx.li-h any such common. Tart V.. imm section MI to 1'Jl. r.-lat. 1 to* I.i'-.-nsea for pastoral IH-CU pat ion." - -ct ion >< i provi iin-j- that y.-arly li.-'-nses as to .\Mini: runs should be issued to confer r ]rivilegeB than previous pastoral lici-ns.-s conti-rrc.1. >vhih- s^tions M t. contained sp-citic provisions for tin- paym.-nt and assessment ot' the rents, and for ascertaining the grazing capabilities o! th.- runs, \\hieh \u-n- to be fixed and determined on ly the Boartl of Land and Works, in manner and form tin-rein particularly pro- vided; and when so determined, to be conclusive unless apj.eal.-d again -t. In pursuance of these provisions, the Board of Land and Works proceeded to determine the L r ra/in_r capabilities of each of the four classes of runs, into which the pastoral lands ot tin- Colony were directed to be divided, and published, as reijuir-- 1 by the Act. in the Victoria Government (ia/.ueo! the loth : December, 1862, the amount of rent to be paid in respect of such runs. Th.' area of the Lamplough nm was treated as 1500 acres, and the annual rent was fixed at '2~>. There was no appeal against the determination of rent tor the Lamplough run, and the annual rent so determined was duly paid in respect thereofl On the hh of March, 1863, the Respondent, Dallimore, and one Charles Forster purchased of the Resi>ondcnts, dough an I Bogg, all their riirht. title, and interest to depasture stock on the Woodstock stations or runs, which, in the contract of purchase, were stated to include the stations or nms then known as Lamplough, .VOL. I.] CASES IN THE PKIVY COUNCIL. 19 Mdden Hill, Woodstock, Lansdoicn and Knighton, as the same were J. C. then held and occupied by dough and Bogg under depasturing 1865 licenses from the Crown, standing in the names of the last-named THK"QVEEN Respondents, together with the benefit of the licenses. It was D by such contract provided that the boundaries of the runs should be as stated in the Government Gazette, except such portions as mil: lit have been deducted for commonage, sales, or reserves. The benefit of this contract became, by an agreement between the parties, dated the 4th of March, 1863, vested in the Respon- dent Baltimore alone. By a proclamation dated the 26th of October, 1863, the Governor of the Colony, in pursuance of the power given him by the " Land Act, 1862," abolished the gold-fields common described among others in the proclamation of the 28th of January, 1861, under the designation of Lamplough, and declared that the area therein described and marked as containing 3600 acres should be and constitute the gold-fields common for Lamplough. Notwithstanding that the original gold-fields common was thus abolished, the rents paid by the Respondents in respect of Lamp- lough run remained the same as before such abolition. But no -ii license for occupation was granted to them. On the 31st of December, 1863, the Board of Land and Works in pursuance of the 98th section of the " Land Act, 1862," No. 145, exposed to sale by auction in lots divers unoccupied Crown lands, including those in question in this appeal. The northernmost portion of the Lamplough run containing 3580 acres formed Lot '2, and was put up for sale by the name and description of Lamp- . lough A. run, the amount of rent determined for the same being 50. This lot was sold to Ambrose Bowles at a premium of 75. The southernmost portion of the same run, containing 5500 acres formed Lot 3, and was exposed for sale by the name of Lamplough B. run, the amount of rent determined for the same being 85. This was sold to Daniel Noonan at a premium of 151. Chauncey, one of the officers of the Board of Land and Works was instructed by the Board to put Bouies and Noonan in pos- session of the runs purchased by them. He accordingly met them by appointment on the land, and formally gave them pos- session. A shepherd of the Respondent. Dattimore, was at the 3 C 2 20 CASES IN Tin: Pi;i\Y OOU1 i i: time in possttwi'-n <>t l,,,tli tli.- pui.-iui- ,,: 1865 II- -]H>nd lit, .mil refused to giv- up such possession. TH*QCCE O" the .'5<)th of .M.uvh. 1st; I. ('hauncey as such agent of ;!. DALUMORX. Board, ma- ! a demand on Dallimore personally of possession of the land* in question for the above j .m. 1 II ev 1 1 [ possession: when ii|.n th- App.-ll.mt ..nth. I of April. 1st! I, brought an action of ej.-ctm-nt in the ^ Court of the Colony a^ain-t tin- Iie-p<.Mdent. J>iiore, for t\\o portions of Lamplough run, kn<\\n . ' nyh \. nui, und Lampion yh B. run. On the 7th of June, 18(U, tin- Respondents, Clough nnd Bogy, obtained leave to appear t> tin* action, as landlords of the Respondent, Daflimore, und defend the property sought to be recover. (1. Thf action was tried lx-t"r> Mr. .!u tin- K'-sp-.n-lrnts to mov- enter a verdict for them on the grounds appearing on th Judge's notos of tli- .-vid'-ui-.- -iv<'ii. On tin- LMth of June, lsi;l. th' Respond. -lit- obtained a rulo nisi to set aside the verdict for the Appellant and to a verdict for tho Respondents on the grounds, first, that th" ri-ht of entry \\as not in the Crown, but in Bowles and Noonan. Second, that the proelaination of the common did not September, 1864, was then made absolute. The Appellant applied for, and obtained, leave to appeal from this judgment. The Attorney-General (Sir B. Palmer), Sir Hugh Cairns, Q.C., and Mr. Kekewich, for the Appellant : The question at issue, though seemingly involved, is simply one of tenure. The Respondents derive their original title, if they have any beyond that conferred by the license of the 20th of March, 1862, from the occupation of their predecessors as licensees under the Crown, of lands forming part of a run in the unsettled district called Lamplougli. It is not pretended that there has been any sale of these lands under the provisions of the Imperial Ads, the 5 & 6 Viet. c. 36, or the 9 ( & 10 Viet. c. 104, or in fact any lease under the Order in Council made pursuant to the last-named Act, though it is said that a lease had been applied for by one of the Respondents' predecessors. Be this as it may, the question would still remain, what claim such occupier had to the grant of a lease, even if applying for it, and that is not sufficiently before the Court to require argument, for both these Acts were repealed, while the Orders in Council made under them were made subject to future amendments and alterations by the Constitution Act, 18 & 19 Viet, c. 55. Now, it was in this state of things that the Respondents or their predecessors were in occupation of the lands in question as licensees of the Crown. Then came the Colonial Act, 24 Viet. No. 117, for the sale of Crown lands, and the proclamation of gold-fields commons, and the due proclamation of the LamplougJi run, notwith- standing its occupation by the licensees as such, who continued to hold the residue with the other lands occupied by them. It was after this proclamation that the Respondents, Clougli and Bogg, applied for and obtained the license of the 20th of March, 1862, which by the terms of it is limited to one year and no longer ; and besides being so limited by the memorandum appended to it, so much only of the original Lampion gh run as remained after the goldfield CASES IN THE PRIVY C< [L J. C. prorlaii HKubjeot t. intniv appr-.p . i ; , or i MB Boa t he Act 25 Viet. No. 1 ! TnQuux all its special p to be foil n- 1 in the *vtioi. i - 1, Notwithstanding these various dealings by the f ; officers M it h the Ian-Is >o occupi.-,] l,y i lie Respondents, t i timie in the occupation ami tr--.ii t!i-ir possession as if it was a v.ili-1 aii-1 mboigting title, by parting with it to tin- K-->IH.M lent, Dattimore. They obtain, h< no r.-n.-\\al of tin- lic.-n- March. 1 *'_'. aii'l must, then-fore. IM- hel-I to \- l.nt t.-naiit- --n sufieranee. But the proclamation of li'itli of n.-toln-! uliich aKoli-.li!- 1 the |m-vious goldfields common, and constitute 1 one for Lamplomjh. put an end at once to the Defendants' ri-_ r i possession. \Vc say, tln-u, that tin- Crown was, thntiiirhoiit \\. proceedinirs, and is now, the owner of thi- laii'ls in i) on tin- truo construction of the Acts, was entitled to dispos< tin-in in the manner stutt-il. having, Ijefore the commencem'-i: the action, done all tilings necessary to entitle it to recover pos- session of such lands. Mr. Bi the land mentioned in the writ, uhi-h they, or their predeces- had held anterior to and in the year 1861. Their title, ther : \\as transferred to the Respondent, DaUinwre, who, at the dat the writ of ejectment, was in the lawful possession and occupation of the land in question. We maintain that the Crown had no p to determine the tenancy of the Respondents by proclamation. and never intended to do so. The proclamation for making Lamploikjli run a goldfields common, had no such eflect. That i> evident from the continued occupation of the Respondents, an ' license subsequently granted to them. There never was any take : the case, it is nut necessary t-< <].< iij.- thi- question. It is j.lain that neither the Respondents, Clowjh ami Bogy. n<>r tin- 1I<-|" 'i.-l' -n\.])< tlli more, who claims umlrr th.-m. hal ai. legal or eqnitaM.-. a.s lii'-ns.-vs at tin- tiim- tliis >\iit \\aa com- menccnl ; for the last license ol>taim operate and be in force from thr 1-t of January. IN'.L', until the 31st of December, 1802, and no lonp-r. But the Respondents claim as tenants, and that chum is ln;: on two subsequent payments of r nt. th- Sept ISo'."., for r.-nt diu- ilOth of Jun.-. l^ii.'i, and th- 'th r on Decei: 31st, 1863, for rent due on that day, \\hirh payments urn- ac-'pt-d as rent on behalf of thr Appellant, and having IM-VII so accept* d constituted, as it \\as it-n.!.-d, a ti-nancy from \ <-ar. It cannot be disputf proclaimed, no tenancy could !. coii-tit by such payment of rent as to any part of that land. If the ivnt paid after the license had ceased to operate had been paid without anything having occurred l>ut the sul-titutiou oi'tiie payment of rent for the obtaining a new license, it \\ould. perhaps, follow that the implied tenancy ought to bo regard- 1 as co-ex sive with the whole area to \\hich the license extended, and it would then have been necessary to construe the license uhidi license M;K in the term- already stated. On'the part of the Crov.n the contention \\as that the terms of VOL. L] CASES IN THE PRIVY COUNCIL. 25 the notice excluded the land which had been proclaimed a common J. C. from the right granted bv ihe license, because such land had been 1865 " lawfully taken away ' from the run. On the part of the Respon- 'x- 1IE Q UE EX dents it was contended that the concluding part of the notice treats the deprivation of the right of enjoyment of any portion of the land, by reason of the same being proclaimed a common, as a distinct thing from the being " lawfully taken away" mentioned in the earlier part, and indicates that such land is not to be considered as excluded from the right granted by the license, but only as deteriorated in value, so as to entitle the occupier to a compensa- tion but for the provision contained in it. It is not necessary, we think, to decide this point, because the extent of the implied tenancy is ascertainable, in our judgment, by reference to matters independent of the license, and which occurred subsequently to its expiration. The subsequent matters arose out of the exercise by the Board of Works of the powers conferred under sections 84, 85, 86, and 87 of the Land Act, 1862, 25 Viet. No. 145. By those enactments rents are substituted for the former assess- ments of stock depastured on the runs, such rent to be paid according to the grazing capabilities of the run, to be determined by the Board, and when they have been so determined, the Board is directed to cause to be inserted in the Government Gazette a notice of the amount of rent to be paid, in the form mentioned in one of the schedules of the Act, and the amount there mentioned is to be binding and conclusive, unless the occupier shall within two months of the publication send a notice of appeal. The form given by the seventh schedule consists of several columns, in one of which the area of the run is to be inserted, in another the grazing capabilities of the run, in another the annual rent, and in another the quantity of stock depastured on the run in 1861, and the last column is headed " general observations." Accordingly, on the 10th of December, 1862, the Board having determined the grazing capabilities of Lamplough run, published in a supplement to the Victoria Government Gazette the amount of rent, in a schedule framed in accordance with the Act ; and in that schedule Lamplough run was stated to have an area of 1500 acres, with a grazing capability of 750 sheep. The rent was fixed at 25. The _>; CASBB IN THE PRIVY, C< [L. B. lii.iM: 1 .11 th.- run i: H stated at ' 1865 .in-! in tli-- .oliiiuiix ;,,r -.rrii.-r.il observation- th- -n- was . TinQrcKx "area diminish-- ! by tale ami commonage." DALLWORE. ' l '" l"'" u:il 'I |- t ' l;i! IM '" "'"'I'll' 1 u> inl-nd-- ! t" be frani- conformity with tin- lic.-ns,- of 1802, according t< th- AJ-J.- ll.uit'- Mm. 'ti-. 11 .! it. At all event-. v <\<>\i\>\ that tin- pay- ments of rent, which are relied on as establishing the temu v\-rc made, and accept.- 1 ..n tli.- tiK>tin^ of the 8tat'inont contained in the srlu lull . Pile amounU {mid corresponded with the : lix.-tl. i,,r althou-li tlu- n^-i-ijit t>r tht.- payment made in DecemK- r. 18(J.'>, sh.-\s> that i'Ts <>*. 8d. was paid for the half year, yet it is \\n by tin- rvidi-nw that this sum was composed of 12 10., tin- hall-y<-ar's rent mentioned in the s-h. .lul- . \\ith an, augmentation of 53 6. Sd. t in respect of the southern part >f th- run which hal not been consider^l in the first instance to be! to the Lawjdouyh nin. And the amount paid for the earlier half- ir's rent i< i'l'J 10. If this be so, it is plain that the payments of rent were mado for the run exclusively of the land in question in this cause. And the result i>, that no tenancy was established in respect of it; but that us soon as the Respondents assented to become tenants of the (liinini>hr I area only, all title to the land in question ceased, both at law and in t{iiity.anl they became merely tenants at sufferance of it, supposing them to have had a right to hold it up to that thin- ; and consequently no notice to quit, or demand of posses was ]vi|ili>it'-. The jud:rnu -nt in the Court below assumes that the occupation. as licensees and tenants, of the run continu--! all along to ! the same dimension, and does not advert to the facts which, in our opinion, shew that the tenancy, if established, was of a diminished area, so as to exclude the land in question. For these reasons, their Lordships think they ought to ad\i- Her Majesty to reverse that judgment, with costs, and that the verdict found lor the Appellant oiurht to stand. Solicitors for the Appellant : Freshfidfo & Newman. Solicitors for tL Young. Maples, Tetsdale, & Young. VOL. 1.J CASES IN THE PRIVY COUNCIL. 27 GEOKGE EOLFE AND EDWARD BAILEY, AND APPELLANTS. J.C.* 1865 THE BANK OF AUSTRALASIA . Dec. 9, 11, AND 12, 13 ; Feb. 1. FLOWER, SALTING AND COMPANY . . RESPONDENTS. ON APPEAL FROM VICTORIA. (INSOLVENCY JURISDICTION.) Insolvency Partnership Liability of New Firm for debts of Old Victoria Colonial Act, 5 V ; ct. No. 17 Proof admitted against Joint Estate by Creditor holding security oil Separate Estate. II., F., and R., partners in business, and dealing with F., S., & Co., took T. and S., clerks in their employment, into partnership with them. The partnership was constituted by deed, to continue for three years, and a balance-sheet shewing the liabilities and assets of the existing firm was drawn up and admitted by all the partners. The new firm continued to trade, up to the period of its insolvency, upon the same footing and with tho same books as the old firm no distinction being made in their pay- ments, or balances, or between the debts or assets of the new, or what was the old firm. F. S., & Co.,. continued to deal with the new as they had done with the old firm. J?. F. and S. having become insolvent, F., S., & Co., creditors to a large amount, proved against the estate of the new firm. fi. and B., also creditors of the new firm, proved against their estate : and sought to expunge the proof of F., S., & Co., on the ground that their debt having accrued previous to the new partners being taken in, was due from the old, and not from the new firm : Held, by the Judicial Committee (affirming the judgment of the Supreme Court), that there was sufficient proof in the dealings and transactions of the several parties, to show that the new firm on its formation adopted the liabilities of the old firm, and that F., S., & Co. had consented to accept the liability of the new firm, and to discharge the old firm, their original debtors. The Act of 5 Viet. No. 17 (the principal Insolvent Act of the Colony of Victoria), sec. 39, enacts, " that any creditor who shall have or hold any security or lien upon any part of the insolvent estate, shall, when he is the petitioning creditor, be obliged upon oath, in the affidavit accompanying the Petition, and when he is not the petitioning creditor, in the affidavit pro- duced by him at tho time of proving his debt, to put a value upon such security, so far as his debt may be thereby covered, and to deduct such value from the debt proved by him, and to give his vote in all matters * Present: LORD CHELMSFORD, SIR JOHN TAYLOR COLERIDGE, SIR JAME* W. Coi.vi !.::, and Siu EDWARD VAUGHAX WII.LIAM>. :>> CASES IN mi: 1'uvv < [j. J. c. respecting the iiwolvcut estate as creditor only for Uio balance, &c. Ami in j ^ . . caw any creditor hall bold any security or Hen fur payment of hi* debt, Ac., upon any part of the Mid estate, the amount or value of such security or shall be deducted from hie debt, and he ahali only be ranked for, or room re v uient of, or a dividend for, the balance after m . > eared that previous to and pending these arrangements, W.RvfoAg* h* 1 by a deed, dated th- L'.'.ili ol Septan! and by another dated the 30th of June, 1859, mortgaged certain ll estate** \\hi.-h wen- hi- private pn|. rtv i-. the Reapon- uts as a security to r tlie debt 'iL > . ;ui <.rt the lirm), by \vhii-h orl<-r tin- C^ourt accepted the sum n tiled a joint s<-ln- ROC.T, persons, The affidavit in question further affirmed th / / / . tin d.-l.t * due to the Respondents, either as Ft/mm between himself and the Respondents or as between himself and . u : : N . A _ his | Respondents filed affidavits in opposition to the Apj--!- Unts* application, tin- purport of which was in <-stuMi-li : J-'irst, th.; t.. th.- arti-les of partiiT-hij> un-lcr which Talbot and Ibnftt Imitt. :irtn.-rs. n. liiins-lf j"intly lialil.' \\itli tin-in for tin- artners in the firm con>titnt- \ in In aii-\\.-r to this . .iftMavits were filed l>y tin- A]I|H-!- lants and by tin- \\i<>>\\< -nt, Ibrsfer, in support of the Respondents' claim on th- estate of Rvtledge & Co. Tli.- \i iciKv was conflicting ; and is stated and commented on, so far as is requisite tor tin- decision of the case in the judgment :icir Lordships on the appeal. On tli-- L'lul of March, 1863, Mr. Justice Molesworth pronounced jii'L'iii'-nt on tin- application made by the Appellants, Messrs. Rolfe < Ba ;he proof. After consil<-rinL r the facts of the case, he expressed his opinion that Talbot and Forster had never adopt. -1 or become liable for the debt to the Respon- dents, and he accordingly ordered the Respondents' proof to be expunged. Respondents appealed from the decision of Mr. Justice 'nmtih to the Supreme Court of the Colony in banco. On tli-- 12th of May. Isii.",, the Supreme Court made an order allow inir the appeal, and dnetuurgingwilii costs the rule nisi to expunge ; proof. The App Hants applied for leave to appeal again .-t the last- mention non to Her Majesty in Council. On the 28th of May, 1863, this \ ;ta refused by Mr. Justice Molesworth, on VOL. I.] CASES IN THE PRIVY COUNCIL. 33 the ground that, the matter in issue being only for the sum of J. C. 288, it was not within the appealable value as declared by the 1865 Colonial Act, 15 Viet. No. 10, s. 33. On the 21st of September, 1863, the Supreme Court of Victoria, sitting in banco, reversed the last-mentioned order, and granted the Appellants leave to appeal AUSTRALASIA to Her Majesty in Council. FLOWER, SALTING & Co, The Attorney-General (Sir E. Palmer), Mr. Hoblwuse, Q.C., and Mr. Wicfrens, for the Appellants in both cases : These cases arise out of the insolvency of the firm of Eutledge & Co. The Appellants in either case are creditors of that firm, and have tendered and proved their respective debts. The Re- spoii'Ii nis. Flower & Salting, were also admitted creditors to a very large amount, and it is against their claim in fact that the pro- ceedings in both cases are directed. The Appellants, Messrs. Rolfe and Baity, seeking to expunge the Respondents' debt altogether as not due from the insolvent firm of Rutledge, Flower, & Forster, but from the previous firm of Rutledge & Flower ; and the Appel- lants, the Bank of Australasia, insisting that by the law of the Colony the Respondents are bound to deduct the value of the mortgage securities held by them on the separate estate of William Rutledge from the debt which they claim to prove under the insolvency of W. Rutledge & Co. We say, therefore, first, that the debt proved by the Respondents against the estate of " William Rutledge & Co." was in no sense a debt of that firm, but merely tli(! separate and personal debt of William Rutledge and Horace Flower, two of the partners in it. They alone constituted the firm at the time the Respondents' debt was incurred. There is nothing in the partnership deed, nor in the subsequent dealings of the parties, which could render the new firm liable for the debts of the old firm ; there was no novation of the old debts by Talbot or Forster. If an incoming partner chooses to make himself liable for debts incurred by the firm prior to his admission therein, there is nothing to prevent his so doing. But even if an incoming partner does agree with his co-partners that the debts of the old firm shall be taken by the new firm, this, though valid between the partners, is, as regards strangers, res inter olios acta, and does not confer on them any right to fix the old debts on the new VOL. I. 3D IN THE PBTVT COUNCIL [L. R. w * J.O. partner: Pat*, -w T. 2Uy (1), E* part* Peele (2), > IMS jwrte HVZtoiw* < e cases shew that in -.rd- r t.. r. -nd.-r an iJ^i incoming partner liable to the creditors of the old firm, there '"" most be tome agreement to that itoct entered into between him BUR i4f AomuuuiA and the creditors, and founded on some sufficient consi' Fumn. There is no pretence for saying there was any such agreem* a * Lrfl10 * * made between the i oil firm and Talbot or Forster ; and all th>- authorities show that it is only by such an agreem and n.>t by reason of partners being such, that any liabilni- respect of the old debtsof the firm will attach to ti.. ,.rs. ,-ro must be some agreement, though it was said by Ix>rd Thurlow a very little will suffice to shew it, between the partners th.niM Iv.s and tho creditors: Ex parie Jackson (4); Ex parte Bingham (5) ; Ex parte Clowes (f>) ; Ex parte Liddiard (7) ; an arrang' -\\.-cn tho partners themselves is no evidence: Ex parte Freeman (8). The whole question, whether the estate of one of two partners who died, was after his death discharged from a partnership debt, is discussed, and all the authorities referred to in the case of Winter v. Innes (9) ;* Devaynes v. Noble (10). The case then resolves itself upon the evidence to the questions, first, whether the new partners took upon themselves the joint liability for the debts of the old firm; and, secondly, \vh< -th-r thf i liters of the old firm agreed to accept the liability of t li- fer that of the old firm. Upon the facts and circumstances of th- case, and looking to the whole evidence, we maintain that no such agreement was come to by either parties, and that the new firm were not liable for the debts of the old. The proof of the K - spondent's debt, therefore, against the firm of Ruttedge, Flower, & Foster, was rightly expunged. Secondly, as regards the appeal of the Bank of Australasia, the estate to be administered under the joint adjudication included both the joint estate of the three partners as well as the separate estate of each of them. Tho Respondents' proof, therefore, against the joint estate was subject to the deduction of the amount of th.- (1) 10 B. & C. 21)8. (6) 2 Bro. C. C. 595. Vcs.601. (7) 2 M. & Ayr. 87. (3) Back. 13. (8) Buck. 471. (4) 1 V. Jun. 131. (9) 4 My. & Cr. 101. (5) Cookc's Brp. Law*, (10) 1 Mer. 530. VOL. I] CASES IN THE PRIVY COUNCIL. 35 securities held by them against the separate estate, that was held J. 0. by the Commissioner of Insolvent Estates in the argument before 1865 him, and the proof tendered by them was rejected. That, we KOLFE maintain, was the correct decision, and according to law : Ex parte BJUJK OF Peacock (1) ; Ex parte Davenport (2) ; Ex parte Shepherd (3) ; AUSTBALASIA Ex parte Free (4) ; Ex parte Hallifax (5). FLOWER. The estates are to be administered under the insolvent law of J the Colony, and especially under the Act 5 Viet. No. 17, passed in 1841, which contains various provisions differing from the bank- ruptcy law of this country, especially in reference to the proof of joint and separate debts. The 39th section of that Act provides that any creditor who shall have or hold any security upon any part of the insolvent estate shall be obliged to put a value upon such security, and to deduct such value from the debt proved by him; which compels the joint creditor holding a security against the separate estate, to value such security, and prove only for the balance against the joint estate. That may be different from our law, but is the express enactment of the Colonial Act, and has no doubt been adopted, for, as we contend, good and obvious reasons. The case is analogous to, and seems to have been bor- rowed from, the Scotch law of sequestration, where, if a creditor hold a security for his debt over the bankrupt estate, its value must be deducted from the debt : 2 & 3 Viet. c. 41, s. 35 ; Burtons Law of Bankruptcy, ch. viii. sec. 1 (581). Sir Hugh Cairns, Q.C., Mr. Hellish, Q.C., Mr. Pearson, and Mr. W. S. Salting, for the Respondents : It was not competent for either of the Appellants, after the debt due to the Respondents had been finally admitted to proof by the order of the 24th of July, 1862, confirmed on appeal by that made by the Supreme Court on the 24th of September, to question the proof 'of such debt in the proceedings which they instituted for that purpose. The learned Judge of the Court below had no authority to grant the rule nisi for expunging the Respondent's debt at the instigation of the Appellants, Eolfe and (1) 2 Gl. & Jam. 27. (4) 2 Gl. & Jam. 250. (2) 1 M. D. & De G. 313. (5) 2 M. D. & De G. 544. (3) 2 M. D. & De G. 204. 3 D 2 QAflH IN THK I'KIVV OOUHdL '. Baily, who proved nbtequ>-nt t the admission !' th.- pr"f of th- i- Respondent*. The jurisdict i be Colon OIM drpi-ii'lent <>ii 1< L'islativo enacUu : ;. There is DO clause in the j 1 , < olony (the 5th V 17: the rmAuujA 7,1, YJ. -,.. N,, loth \ ri .,. Na ii: an.i tii-- i>tii Viet.. N... in. L'i\in- pow to aptagt proofs analogous to those contain. .1 in th i it liankruptcy Acts, Gth Geo. 4, c. 16, sec. < i h-- -' 1th ,v J i :: I. sec. 155; and we maintain that th<- .'in; ion .i such a clause implies that no su-li JM. \\-r exists. The 8Uth ann>ceedings here are not taken un have been such as to lead to the necessary inference that the creditors recognised and knew of the change of firm, their assent to such change will be implied: Ex parte Jackson (1), cit-.l on the other si-le, is no authority a-ain-t this principle, neither is Ex parte Peele. All the authorities r. latin- t<> incoming part n- -r>, th- ir rights und liabi- lities, are collect^! in Lindleys Treatise on the L.tu ut j'artn, rsliip. vol. i. pp. 31 J. :;17, ."."J. and vol. ii. p. .>;,. wli.-rc- it is f.\pr.-ssly laid AH. as we maintain the law to be, namely, that tin- >ultitution of debtors can only be made with the cn-'li tors' consent. Now, looking to the articles <>t partn.-r>hij. entered into between Rutledge, Flower, Fonter, & ToJbot, the affidavits of Forster, the bankrupts' books and schedules, there was abundance of evidence for the conclusion the Supreme Court came to, namely, that the Respondents adopted the new firm instead of the old, and were (1) 1 Yes. Jun. 181. VOL. I.] CASES IN THE PRIVY COUNCIL. 37 consequently entitled to prove their debt against that firm from J. c. which their debt was justly due to them. 1865 Then as regards the appeal of the Bank of Australasia, who ROLFE insist that, as we hold a separate security against the separate BANI^OF property of one of the partners, we must deduct the value of that AUSTKALASIA "V security before we can be admitted to prove against the joint FM>WEB. estate. the language of the 39th section of the Colonial Insolvent ' 1 Act, 5 Viet. No. 17, warrants no such conclusion; it speaks of securities or liens upon the insolvent estate, not upon the separate property of one of the insolvents. Messrs. Flower & Salting hold no security on the joint estate of W. Rutledge & Co., and never pretended to hold such; but they claimed, and are entitled to prove, for the whole debt due to them from the estate of W. Rutledge & Co., against that estate, without reference to, or abatement on account of, the security they hold on the separate estate of W. Rutledge. The joint and separate estates are entirely distinct, and must be separately administered. The practice of the Scotch Courts has no reference to the present case ; there are no provisions in the Insolvent Acts of Victoria analogous to or having the same effect as the law of sequestration in Scotland. LORD CHELMSFORD : These are appeals from two judgments of the Supreme Court of 1866 Victoria in a matter of insolvency of a firm of William Rutledge & Ftb. i. Co., Merchants, carrying on business at Belfast, in that Colony, by which the Respondents, Messrs. Flower, Salting, & Co., were admitted to prove against the estate of the Insolvents for a debt of 53,587 10s. lOd. The questions raised in the two cases were different ; but as the facts in each were the same, and both related to the same debt, they were argued together. They must now, however, receive a separate consideration. To begin with the appeal .of Messrs. Rolfe & Bailey: The judgment appealed from in their case was pronounced on an application by them to expunge the proof of the debt of Messrs. Flower, Salting, & Co., on the ground that it was not a joint debt of all the partners in the existing firm of William Rutledge & Co., . '-! IN Till: I'liUY er8 of it do\Mi to A|ril, l>.".'.i, \\\\> n the n-\\ parti 11 -i-ship MUS 1. .nn- <1. tirm of Wittiam Rutledge & Co. had for many years 1 transactions \\ith the Respondents \\ho carried on business as merchants in London, Sydney, and Melbourne ; in London, under the firm of P. W. Flower & Co.; in Sydney, of Flower, Salting, & Co. ; and in Melbourne, of Flower, Macdonatd, & Co. At tin- tinn- of the formation of tin- in-w partnership in April, 1N")!>, tin- tinn ot William Ruttedge & Co. were indebted to the Respond. M-' three iirms in sums amounting in tin- whole to 113,710 10. 7l I .l.-l.t- un- tion by the new firm of the debts of the old. Lord Thurl'V. in Ex parte Jackson (1), said, "If one man having debts takes another into partnership with him, a very little matter respecting those debts will make both liable." And Lord Eldon, in Ex parte Pee&(2), thought that " slight circumstances" might be sutlieient to prove an agreement to undertake such a liability. The denoe in this case, however, appears not to be slight, but cogent, to fix the liabilities of the old firm upon the new. Not only waa there a continuance of the former dealings of the old firm upon precisely the same footing and with the same books as before, but the liabilities of the old firm were regularly inserted in the balance- sheets of the new, and the assets of the old firm credited as belong- ing to the new, without any distinction between them. Large sums of money also were paid out of the general assets of the firm in reduction of the debt of Flower, Salting, & Co., and the interest upon their debt was regularly charged in the annual balance-sheets of the partnership. (1) 1 Yes. Jan. 132. - Ves. 604. VOL. I.] CASES IN THE PRIVY COUNCIL. 41 It was said by the Appellants that all that was done in payment J. 0. of the debts of the old firm was in the discharge of a duty assumed 1866 by the new firm, as the agents of the old, to receive their assets and discharge their liabilities. But the course of the partnership transactions scarcely admits of this argument; for, if it were AUSTRALASIA T?. merely a case of agency, it might have been expected that these FLOWER, assets and liabilities would have been kept separate and distinct ' LTIN from the partnership business, instead of being blended and inter- mingled with it. Independently, however, of the dealings and conduct of the partnership generally, there is evidence of acts, and admissions of Forster (the only one of the insolvents who attempted to defeat the claim of Flower, Salting, & Co., to prove under the insolvency), which is of great importance. In an affidavit made by him on the 2nd of December, 1862, he deposes as follows : " In or about the months of February or March, 1859, before the execution of the deed of partnership between 'the said William Eutledge, Horace Flower, David Talbot, and myself, I had a conversation with the said William Eutledge, relative to the debt due to Flower, Salting, & Co., when he told me that it was secured to that firm on his (the said William Eutledge s) own private property, and that I was not to be liable for it, nor for the debt of 19,000 then due to the Bank of Australasia" And again, " I never, directly or indi- rectly, agreed with the said firms of Flower, Salting, & Co., and Flower, McDonald, & Co., or with either of them, or any member thereof, to take upon myself the liability of the said debts so due by the said firm of William Eutledge & Co. to the said firms of Flower, Salting, & Co. and Flower, McDonald, & Co. respectively, nor did I ever, directly or indirectly, authorize any or either of my partners to enter into any such agreement on my behalf." The alleged conversation before the execution of the deed of partnership is positively denied by Eutledge in his affidavit of the 9th of February, 1863, in these terms : " I never on any occasion, either before or after the deed of partnership was drawn up, told the said Francis Forster that he was not, ujKrn entering my firm, to be liable to the debt due by my then firm to Messrs. Flower, Salting, & Co., but I say that in conversing with them upon the terms of entering my firm, I explained to both the said Francis CASKS IN THE PRIVY O R Forster and the said David TaJboi that, an the new firm wen 1866 take over the wh<>!< t the assets of the old firm, they most also B^ take, till tho linlilm rn.lii f ItettidgeiB soupl impeached by the affidavit AOBBAUJU of Edward Kttngmder, of the 25th . .t' I-'.-l.m.irv. 1 ><;:;, in \\hi<-h h.- states that WiUiam Rutledge was examined as a witness, at eoon ^ meeting under tho inwlv- u the subject of the debt due to the Bank of Australasia, and that he then M tin liutledge & Ck, and ih.it th.-y - 'l-l>t t that for that jwrtion of tho tak<- all th- liaKilitii s. < )n the other hand, as the new firm was not to be liable for a part of the debt of the Australasian Bank, it seems likely that some such coi u as that stated by Forster should have taken place. Whether he has not extended to the debt due to Flower, Salting, & Co., expressions \\ hirh were meant to be confined to the bank, may in some degree judged of by his subsequent conduct. According to the affi- it of Horace Flower, of the 16th of February, 1863, b< Forster joined the firm, he "pointed out to him the heavy liabili- - of the firm, and recommended him not to join in the partner- -liij'.' Flower's affidavit further states, "-The pfmeipal debt* doe l-\ tin.- said firm at the time I recommended the said Francis Forster not to join in the partnership were those due to Messrs. Mower, Salting, & Co^ Messrs. Flower, McDonald, & Co^ Messrs. P. W. Flower, and the Bank of Australasia, with which debts th- said Francis Forster was, as I believe, perfectly conversant ; but the said Francis Forster said that he was satisfied to join the said partnership, and did so join." Forster made an affidavit on th. 25th of February, 1863, in which he answers passages in the affidavits of other persons, but takes no notice of the above st ment made by Flower, which is wholly uncontradicted. VOL. I.] CASES IN THE PRIVY COUNCIL. 43 In addition to this evidence there are affidavits of 1 admissions J. C. made by Forster, and also proof of acts done by him, which 1866 strongly confirms the case of the Respondents. ROUE A statement by Eutledge of one of these admissions is con- * H ^ tradicted by Forster, and therefore may be disregarded. But Mr. AUSTRALASIA Salting, one of the Respondents, in an affidavit dated the 13th of FLOWEB, February, 1863, deposes to a conversation which he had with TING Forster in 1861, upon the subject of his debt, and says : " Upon all these occasions the said Francis Forster invariably spoke of the said debt as due by his firm, and never in the remotest manner denied or expressed the slightest doubt of his firm's liability in respect thereof. Upon one of these occasions, in answer to my inquiries as to his opinion of the security of our position (mean- ing our position as creditors of his firm), he remarked that he con- sidered the funds of the firm sufficient to discharge their liabili- ties, and that in all likelihood no necessity would arise for us ever to have recourse to the security which we held upon Mr. Eutledge's private estate." This is not denied by Forster in the affidavit of the 25th of February, 1863, to which reference has been already made, but it is almost impliedly admitted by his statement that " any expres- sions he may have used respecting the said debt were not intended by him to induce the said Severin Kanute Salting to believe that he had taken upon him that debt." There is, however, one act of Forster s which seems decisive of his opinion that the firm of which he was a partner were liable to pay the debt of Flower, Salting, & Co. In the Insolvent's sche- dule, to which Forster and his partners Eutledge and Flower were sworn, the names of Flower & Co., London, and of Flower, Salting, & Co., Sydneij, are inserted in the list of creditors, and under the column headed, " whether any security given," is inserted, "no security on insolvent's joint property, but secured on the private estate of W. Eutledge." Now Fbrsfers case is not that a sudden light broke in upon him as to his legal position after the filing of the schedule, but that from the first and continually down to the time of the insolvency he considered himself not to be liable for these dejbts. Forster says, indeed, that at the time of the pre- paration of the schedule he had no separate legal adviser, that II CASES IN T! I i: instructions were given t llutkdge, and that he signed and MM swore to it, as prepared by the * having taken advice as to the way in whi.-h tho debts due to Flower, Salting, A C< lie Bank of Australasia, should Us inserted Hut this i^*u explanation can hardly be accepted, for Fortter, upon hisexan rat tii'ii at tho first meeting, under the insolvency, said, M I beb !!L* ^ Flower, Salting, & Co. are correctly entered in the * -hedul. . I believe they hold seeimty. I never saw the deed, bat In .. from Mr. Flower, our pa Besides, if it be true that Forder, at a partner iu tho new linn, was not liable for these debt*-, existing partnership of W. Rutledge & Co. was not insolvent, as t ho debts of Flower, Salting, & Co., and of the Bank of Australasia, amounted top-tin -r to 63,000, and the deficiency of assets stated in the schedule is only 53,118 170. Id. There seems to be no reasonable doubt, upon the above facts, that the insolvent partner- ship, at the time of its formation, assumed the debts and liabilities of the former firm of )!'. Hutledge & Co., including the debt due to Flower, &iltinn. as upon that of the agreement of the partners inter se, it was said by Lord Eldon, in Ex parte WiUium8(l), "A very little will to make out an assent by the creditors to the agreement." This case is different from many of the cases mentioned in tlV course of the argument, where there had been a change in a firm of which a person trading with it had notice, and went on dea 1 with the new firm, and afterwards sought to make the old firm liable, and a question arose whether by his conduct ho had not discharged the old firm, and adopted tho liability of the new. Here the creditors of the old linn, knowing of the change of p nership. and that tho new partners had taken over all the assets, and had agreed to be subject to all the liabilities of the former firm, not only continued their dealings with the new firm upon he same footing as with the old, and received payment of at portion of their debt out of the blended assets of the old and new firms, but themselves proved that from the time when they (1) Buck, 13. VOL. I.] CASES IN THE PEIVY COUNCIL. 45 understood that the new partners took over all the assets, and j. c. became subject to all the liabilities of the preceding firm, they " thenceforth treated the partners in that firm as their debtors, in respect of the debt owing to them at the time of the creation of ** v THE BANK OF that firm, or of so much thereof as for the time being remained AUSTRALASIA due." ^ FLOW-ER, If Flower, Salting, & Co. had, under these circumstances, endea- SAL G & Co. voured to enforce the payment of their debt from the partners in the old firm of W. Rutledge & Co., there would have been ample evidence to satisfy a jury that they had discharged the old firm, and had accepted the new one as their debtor. Their Lordships, therefore, are of opinion that the judgment of the Supreme Court was right, and that the Respondents were entitled to prove against the estate of the insolvent firm of W. Rutledge & Co. for the amount still owing to them of the debt originally due from the former firm. The appeal of the Australasian Bank relates to the proof under the insolvency of W. Rutledge & Co., of the same debt of Flower, Salting, & Co., as in the case just considered, but raises an entirely different question. At the time of the insolvency of W. Rutledge & Co., the Austra- lasian Bank were creditors, and proved against the estate for the sum of 30,249 18s. Qd., the amount of their debt, after deducting 9500, the estimated value of a security held by them over the separate estates of William Rutledge and Horace Slower. At the same meeting, Flower, Salting, & Co. tendered a proof for their debt of 53,587 10s. IQd. This was opposed by the bank on the ground that Flower, Salting, & Co. were first bound to deduct from the amount for which they sought to prove the value of certain securities which they held on the estate of William Rut- ledge. The Commissioner of Insolvent Estates decided that Flower & Co. were bound to make this deduction, and rejected the proof. From this decision Flower, Salting, & Co. appealed to the Supreme Court of the colony. The appeal was heard by Mr. Jus- tice Chapman, one of the Judges of that Court, who overruled the decision of the Commissioner, and ordered that the proof ten- dered by tlower, Salting, & Co. should be admitted for the full . LBES IN Tin. l'i:i\ V nirsvn. J.a jffM*- The A]^ M.nitH appealed from tin- pi '/in. nt to tl,. full MM Court, v. :.,-n, after argument, an order was made (lirnniming appeal, without costs. From this order the present appeal i> '*- The question to be deterni flown. being creditors of an insolvent i 1 be allowed to prove against the joint estat< u, were boun 1 t<> value a security \\hi.-h they h.-ld U|M>M tin- separate estate of one of the partners. If the question had arisen in country, then- uuuld have been no difliculty in answering it. It , - -- 1. in : . .i. in ar-iim. nt. ti,;it t li- i u!.- t h.it t h-- > runt y to be deducted must bo upon the same estate as that agit which the proof is directed, was not laid down as a genital nil Lord Eldon in Ex parts Peacock (1). This, I was not inion of Lord Lyndhurst, who in the case In re Plummer said : " In administration under bankruptcy, the joint and sepa- rate estate are considered as distinct estates : and accordingly it has been held, that a joint creditor having a security uj>n separate estate is entitled to prove against the joint estate with- out giving up his security; on the ground that it is a i estate. That was the principle upon which Ex parte Peacock pro- ceeded, and that case was decided first by Sir J. Leach, and after- wards by Lord Eldon, and has since been followed in Ex parte Bowden (3)." Wliatever may have been tin- origin of the rule, it must now be con-i ! n 1 to be the established law in this country. It \\.i- >,ii 1 by Mr. Hobhouse, for the Appellants, that the rule was laid down without any consil -ration of its justice or expe- rli'-n.-y. an and to give his vote in all matters respecting the insolvent estate as creditor only for the balance, &c. And in case any creditor shall hold any security or lien for payment of his debt, &c., upon any part of the said estate, the amount or value of such security or lien shall be deducted from his debt, and he shall only be ranked for, or receive payment of, or a dividend for, the balance alter such deduction." The whole stress of the argument arising out of this section is laid upon the words "any part of the insolvent estate." Mr. Hobhouse went carefully through the different sections of the Act in order to shew that throughout one estate only is" mentioned ; and he contended that in every part of the Act an intention is manifested that there should be only one sequestration extending over every part of an insolvent's estate, applying to all the debts both of joint and separate creditors, and one single indivisible administration of the whole. Of course, if he could prove that the Act intended to annihilate the distinction between joint and sepa- rate debts and joint and separate estates, in the distribution of an insolvent's estate, he would establish his point. But it seems to be assuming the whole question thus to argue from the use of the word " estate " (in the singular) in the different sections of the Act. Even if the Act contemplated that both joint and separate estates would have to be administered, the language is quite capable of application to each estate respectively under adminis- tration. Too much reliance was placed upon the notion that the Colonial Legislature were impressed with a sense of the injustice of the rule prevailing in England, and were determined to guard against it in their new Code of Insolvent Law. Indeed, it may be doubted whether a new law on the subject of insolvency Avas introduced by the Act of 5 Viet. No. 17, for mention is ma'le in it of two former Acts for the relief of debtors in execution for 4g CASES IN I 1 l: i * hich they are unablo to pay, one of thorn as early as the !>" . *L Huvn ' if this were the establishment of a new code of insolvent law, and it was the object of the Colonial Legislature to prevent AITOLUJUJA the operation of a rule which they considered unjust, it is hardly n. to be imagined that they would have cominiu.-l th- ir int. ntion to the equivocal meaning of u is in a single section of the Act It is just as reasonable to suppose that, knowing the rule established in this country, which is founded not upon any statin. . 1'iit upon general principles applicable to many other cases, th- y iiM not intend to disturb it. The alleged injustice of tin- rule has been endeavoured to be shewn by vi -\\iiiLr it on one -i lo only. While tin- j>int cn-.litore are alone regarded, it may be successfully ar-u. <1 to be a hardship upon them that a creut, on tin- other hand.it may be con- tended, on the part of the separate creditors, that it would be great injustice to them to compel the joint creditor, with a separate s. -runty, to have recourse, first to the separate estate, which he might exhaust, and thus leave the separate creditors without a fuii'l lor the payment of their debts. These conflicting views seem to put the argument of hardship aside, so as to allow the operation of the well-established principle that, upon a joint bankruptcy or insolvency, the joint estate is the fund primarily liable. anl that the separate estate is only brought in in case of a surplus remain- ing after the separate creditors have been satisfied out of it. There Bccms to be no reason, therefore, why the words in the 39th section of the 5 Viet. No. 17, " any security or lieu on any part of the insolvent estate," should not receive the construction of which tl ley are capable, and be applied in each instance to the particular estate which is at the time the subject of administration. There is one other point which does not bear upon the main question, but \\hich, as it has been introduced as a ground of com- plaint on the part of the Australasian Bank, ought not to pass unnoticed. The Appellants state in their case, " that acting upon what they believe to be the law and justice of the case, they reduced the proof which they tendered by almost a fourth. The Respondents, holding securities of a much larger value, have VOL. I.] CASES IN THE PEIVY COUNCIL. 49 claimed and established their right to prove for the whole debt J. C. without deduction." 1866 If the secured debts of the parties were both due from the insolvent estate, there would of course be no reason for making any distinction between them. But a reference to their re- AUSTRALASIA V. spective securities will shew that this is not the case. The FLOWER, mortgage from Eutledge and Flower to the Bank of Australasia SALT ^_ I ' - recites that Eutledge and Flower are indebted to the bank in the sum of 10,000, and the proviso is for the payment of the mort- gage-money by Eutledge and Flmver ; therefore the debt was not one which could have been proved against the insolvent firm of Eutledge & Co., being due from two of the partners only. But the mortgage from William Eutledge to Flower, Salting, & Co., which is dated on the 30th of June, 1859, the day before the new partner- ship of W. Eutledge & Co. came into complete operation, contains a recital that there is due from the said firm to Flower, Salting, & Co. the sum of 60,000 and upwards, and the proviso is for pay- ment by W. Eutledge or the firm of William Eutledge & Co. of the principal and interest of 60,000 " due and owing from the said firm of William Eutledge & Co." So that this debt was a liability of the insolvent partnership, and not of some of the partners only. Their Lordships will in both these cases humbly recommend to Her Majesty that the judgments be affirmed, and the appeals be dismissed with costs. Solicitors for the Appellants : Farrer, Ouvry, & Farrer. Solicitors for the Eespondents : J. W. & W. Flower. TOL. I. 3 E ;,,, ( \ V IN 'l::i. i -l\\ ' ' ! [L.B. THOMAS YY M.KT.i: 1865 A AUBER GEORGK .loM.s I m KAL FROM Till-: SITHKMK COURT (KQtT: ' \i:\v -oi ni WALES. Mortgager and Mortgagee Auignet nf Mortgagee Mortgagee lul'Hng oMatcrnl teturitiei Severance of, from Mort The assignee of a mortgagee cannot stand in any different cliaracter, or hold any different position, from that of the mortgagee himself, although the mortgagor may n>t have been a joity to the assigmnci.-. mortgagor has tlu- ri^ht to have a re-conveyance of the inni-tira^ed i n^ riy upon pay- ment of u]x>n the mortgage, and the mortgagee is charged with the duty of making s co upon such payment being made. \Vli- r--. tin nf.. n-, a mortice having besides the property mortgaged, certain promissory notes made by the mortgagor as collateral security for his debt, transferred the mortgage without assigning the collateral securities : , that he was not entitled so to sever the debt from the security, and an injunction, granted against his proceeding at law to rct-uvi r the amount of one of the notes, pending a suit instituted by the mort^ajror, to redeem and to settle the equities of the parties, sustained. IX the autumn of 1861 the Kespondent, Auber George Jones, in pursuance of a partnership an t. r. <1 i: him and one Ralph Meyer Itobey, ma ! and TICE Kxir.nr BRCCE, LORD Ji TCBKEB, SIB JAMES TV. COL VOLE, and Sia EDWARD VAUHAX WILUAMS. VOL. I.] CASES IN THE PRIVY COUNCIL. < The due payment of these notes was further secured by a mort- J. C. gage executed by the Kespondent, Jones, in favour of Robey, of the 1865 undivided share of the Kespondent in certain stations known as WALKER Gobbagumblin and Tooyal, with the live stock thereon. T v - The mortgage was dated the 14th of April, 1862, and contained a power of sale, exercisable in the event of default being made in payment of any one or more of the promissory notes. In the month of April, 1862, Robey discounted one of the pro- missory notes for 2,444 12s. 4d., and indorsed the same with the three other promissory notes which had been made by the Respon- dent by way of renewal of his original notes, to the Appellant, by whom they were discounted. Robey received from the Appellant the full value of the notes discounted, and he at the same time executed in favour of the Appellant a transfer of the mortgage of the 14th of April, 1862. The transfer was endorsed on the mortgage deed, and was as follows : " By this instrument, made the 24th day of April, 1862, upon a mortgage of live stock from Auber George Jones to me, the undersigned, Ralph Meyer Robey, dated the 14th of April, and registered the 23rd of April, I, the said mortgagee, do, in consideration of value received by the discounting of four promissory notes, now current, and secured by the within mort- gage, transfer the said mortgage to Thomas Walker, of Sydney, Esquire, at present absent from the Colony, to the intent that, in pursuance of the legislative provision in this behalf, the said Thomas Walker may, as such indorsee, have the same right, title, and interest as I have or should otherwise have therein. And in case it shall at any time be found necessary or convenient to act in my name in the premises, as the original or apparent mort- gagee, I hereby constitute the said Thomas Walker, his executors, administrators, and assigns, my lawful attorney or attorneys, with full power of substitution for all purposes in relation to the said mortgage, or the enforcement of the terms and conditions thereof." The payment of the amount advanced by the Appellant, on the above promissory notes, and of any further advances, which might be made by him to Robey, was further secured by a mortgage of other property of Robey, known as a portion of the estate. 3 E 2 [L.B. i >n tin- -Jlili of s-jit. ili.- A|.|.. Ihmt. in oonaideraii ii !*,;, "00, paid to him l.y /,v>iey, oxen, -conveyance to liobcy WA1JteR of the undivided share in th> ail JT. mises comprised iu the mortgage ! llth.-i A|.nl. I- '..!- I on the mortgage deed, and was in tli- foil. mint: terms: " Kmm nil men l.y these present-, tlmt I, tin- within named Thomas WaHit r. in eonsid- y the within n:nn.-.l liilph Meyer Holey to be paid, tin- receipt of \\liii-li 1 do hereby a-kmml'dt:e, ,],,. l.y these presents, assign to the said Ralph Meyer liobey all my interest in th>- within in>i mortgage, anail / Meyer liobey, hi- -x.-.-utoM and administrators, discharged from the jxi\ in. nt ut' tlio several promissory not. s ln-M l.y in.-. anr- . subject to any equity oi n-il.-nij.tion >ul.>istin^r th<-r-in (if on the part of the said Aviber George Jones, but withoir ju'lice to any other r.-medy or s.-nirity for the said Thomas }}\tll;\ool-i:rouing and breeding sheep and cattle on the us of GolkagumUin and Tooyal, and that he had given tli- tour promissory notes to Robey on the occasion of his entering into >uch partnership, some of which were renewed, and that niU.- -|U-ntIy. and in the month of September. ]M;L'. the Respondent in consideration of 1,000, to be paid to him by Hobey, and in further YOL. I.] CASES IN THE PRIVY COUNCIL. consideration of Robey delivering up to him the promissory notes, J- C. cancelled, sold, and relinquished all his interest in the station and 1SG5 stock to Robey, and determined the partnership ; but that Robey WALKKK had not delivered up the promissory notes, and that he still Jox retained the first of the promissory notes which fell due on the 20th of April, 1862; and after stating the above facts, the Eespondent alleged, to the effect, that the Appellant had notice of the Respondent's position as mortgagor when the Appellant discounted the promissory notes for Robey, and also that the Appellant at the time he executed the conveyance to Robey, had notice of the rights and interests of the Respondent, under the alleged agreement for dissolution of the partnership between him and Robey, and of the alleged dissolution having taken place ; and the bill prayed that the promissory notes in the hands of the Appellant might be delivered up to be cancelled, and for an injunction to restrain the action, or any further proceedings on the promissory notes, or, if necessary, for accounts, and for further relief. The Respondent applied ex parte for an injunction to restrain further proceedings in the action, and he supported his appli- cation by the affidavits of himself and his Solicitor, Hilly er, and the Primary Judge in Equity of the Supreme Court, Mr. Justice Milford, awarded an injunction restraining the Appellant from further proceeding in the action, and from prosecuting any further action on the note, or any of the notes, in the bill mentioned, until further order. The Appellant thereupon moved the full Court to dissolve the injunction, and evidence by affidavit and viva voce was produced both by the Appellant and Respondent, in support of and against the application. It did not appear by the evidence that the Appellant had notice of the partnership arrangement between the Respondent and Robey, or of the agreement for the dissolution thereof, when he discounted the promissory notes and executed the reconveyance to Robey, and he insisted that he was in fact a bond fide holder for value without notice of the promissory notes discounted by him. The motion came on to be heard before the Primary Judge, on the 21st of June, 1864, and was refused with costs. I CASES 1 Y COUNCIL. [L. R. 1> pealed i ) the I'; IMS to tin- full (\rnrt, ami the nppnal came on to be heard beibr WAUUCR full C.Mirt. consirtiligot th.- < Alfred Stephen, 1kt. , ;, Justice Jfi^onJ, and Mr. .Justice FPwe, ou tin itliof August, 1864, and was also dismissed with costs. Tho Judges differed in tli.-ir opinions. Tin- Chi-f .ln-iiVe waft of opinion llmt tin- order if tin.- rrinmry .luL"' should !* reversed and di8chargeut the majority <>t the Court were of opinion that tin- order should be confirm- d, and h< Id in effect that tin- ApjM-llant. ly conveying tin- sliaro ol tii<- stati"ii and premises comprised in tin- inn : th- 1 1th ot April, !>;_'. to Itcibey, had pr- -judiccd the riirht of th- Appellant to redeem th mortga^t-d pn-mises on payment of the amount \ th-- promissory notes, and, th-THniv. that it \\.-is inequitable for the Appellant to sue the Respondent on the promissory note. The Chief Justice wasof opinion that tin- A j ijx^llant, as holder for vain.' of th<> promissory notes, was entitled to deal with his security. and to convey the mortgaged promises toRdbey in con-idcr.tTi. the payment made by him to the Appellant; that the promissory notes were not necessarily to be held \\ith the mortirairo > -m-ity : and that the Apj>.'llant. liaviiiLT acted in good faith, was entitled to convey the prop< rty as he did, subject to the equity of redemp- tion of the Respondent, reserving liis remedies on the promissory notes. From this judgment of the full Court the Appellant brought the present appeal. The Attorney-General (Sir R. Palmer), and Mr. Druce, for th. Appellant : The judgment of the majority of the .ludp-s in the Court below i~. \\e appn-h-.-nd. erroneous, and cannot be supported. There is nothing in the circumstances of the case to preclude the Appellant from recovering nt law on the note in question, or any of th< other notes in his hands. It is admitted that Robey was the Appel- lant's debtor on the discount transaction. The Appellant ntitled, on receiving a payment from Robey, to deal with tin- mortgage securities in such manner as Robey and he might agree, subject, of course, to the Respondent's equity of redemption, with- VOL. I.] CASES IN THE PRIVY COUNCIL. out any prejudice to the Appellant's legal remedies on the promis- J. c. sory notes remaining unpaid. In Ex parte Loaring (1), a vendor ISGS was held not to have waived his lien on the estate sold by taking \V^^ the promissory note of the vendee, and receiving its amount by discount: Grant v. Mills (2); and in Ex parte Waring (3) it was ruled that a holder of a bill of exchange had no lien on property deposited by the drawer with the acceptor to cover the liability of the latter in respect of his acceptance, yet that on the bankruptcy of the drawer and acceptor the arrangement of the property between the two estates may indirectly render such an equity available. Here the debt and the mortgage security are in the very nature of the transaction divisible, and were intended by both the original parties to have been so, with all the consequences attaching to such a state of things, from the outset. The effect of the re-conveyance of the mortgaged premises to Robey was not in any manner to injure or prejudice the right of the Respondent as mortgagor, but merely to leave matters in the same situation in which they would have been if the promissory notes had been discounted by the Appellant, without any conveyance to him of the mortgaged premises. In that case, Robey would have been entitled, according to the original contract on the mortgage, to hold the premises as his security for the payment of the notes, although in the hands of his endorsee ; and the Respondent, on payment or satisfaction of the notes, would have been entitled to a re-conveyance from Robey. The mortgaged premises, when re- conveyed by the Appellant, were subject to redemption by the Respondent in the hands of Robey ; and the Appellant cannot be held liable for the defaults of Robey. The Appellant, when he executed the re-conveyance, had, in fact, no notice of the matters alleged in the bill ; but the Respondent, having made default in payment of the promissory notes, is not entitled to any relief in equity against the Appellant. The Respondent was in no respect injured by the transfer of the mortgage to the Appellant, and all ground of complaint against either the Appellant or Robey in respect of that act fails. (1) 2 Rose's Bankruptcy Cases, 79. (2) 2 Ves. & Bea. 306. (3) 2 Rose's Bankruptcy Cases, 182. ;,,; CASES IN TIM: 1'KIVY OOUK< \l..ll Hugh Cairnt, Q.C., '/*w, for the Res; 1865 drnt : WUM Th.- injunction in this case M. Miit-"]. i lant Jam. by his conduct, and l.y tin- manner in \\hich lio has dealt \sitli the mortgage 8t -emit v. \\.\< deprive i himself ..1 all ri-ht to sue on the promissory notes. A Court of equity \\ill n.t allow a mort- je.. t<> i !(< . difl'-T.-m-.- at lau : Srl t n,,J,> \. N-///(5); Bentinck\. Wiflink (l). Th.- jiriiu-iplc of all th-se cases is, that a mo 1 -aoiiM In- in a condition feo return the mortgaged pro- IM-I-I y iii *ftn quo ante when paid tin- !'))!. and that if In- cannot do this, h- \\ill not be alh\\ed t< [trf)ceed for the debt, on any other se- curity h- may have. And this principle invokes another, namely, that in whose hands soever the debt is, there also the securr muM likewise be, a mortgagee not being allowed to alienate the securities away from the debt. The Apjx-llant, ly his dealing \\ith the property, has put it out of his power to re-convey the mortgaged premises unless he get them back airain; ho oiiL'ht not, therefore, to be allowed to proceed \\ith his action until the suit; and the injunction granted by the Court below uith the law and eijuity of the case, and the prac- ti'-, ,.f .,ur Courts. LoiM> JUBTK i: TI-I:NKK: !^.'^, M is an ap|>eal from an order made by the lull Court of Feb. 16, appeal of the Supreme Court of the Colony of New South J I in its equitable jurisdiction, continuing an order of the Primary (1) 9 Bear. 349. (4) 3 D. M. & G. 293. r. 349 ; S. C. 28 Bear. 341. (5) 1 Sch. & Lcf. 170. (3) 8 Ves. 527a. (6) 2 Hare, 1. VOL. I.] CASES IN THE PKIVY COUNCIL. 57 Judge in Equity of that Court, whereby a motion on the part J. C. of the Appellant to dissolve an injunction which had been obtained 1866 against him by the Respondent ex parte was refused with costs. WALKKH In the month of November, 1861, the Respondent purchased a j ^ share in some extensive sheep and cattle stations, and the stock thereon, to which Ralph Meyer Robey was then entitled, and became a partner with Ralph Meyer Robey in carrying on the said stations and the business incident thereto. The terms of the purchase were, that the Respondent should pay to Ralph Meyer Robey 8148 13s. 4d. by four promissory notes, each for one- fourth of such amount at 6, 12, 18, and 24 months respectively, with interest added at 10 'per cent, per annum, and that the pay- ment of the notes should be secured by a mortgage of the Respondent's share of the partnership property, and that upon the notes being delivered and the security given, the Respondent should be entitled to one-third share or interest in the stations and stock. Some alterations were afterwards agreed to be made in the amounts and times of payment of the notes, and ultimately the notes given by the Respondent to Ralph Meyer Robey in respect of the purchase, which were all dated the 17th of October, 1861, and drawn by the Respondent in favour of Ralph Meyer Robey, were for 2,139 Os. Gd. due 20th of April, 1862. 2,286 Is. 6d. due 20th of January, 1863. 2,444 12s. Qd. due 20th of October, 1863. 1,288 10s. 3d. due 20th of April, 1864. 1,347 Is. 8d. due 20th of October, 1864. By an indenture dated the llth of February, 1862, and made between Ralph Meyer Robey of the one part, and the Appellant of the other part, after reciting that the Appellant had agreed to make advances to Ralph Meyer Robey by way of discount of the promissory notes secured by a lien or mortgage upon a share of the said stations and stock, and that it had been agreed between the parties that in addition to the endorsement of the said pro- missory notes and the transfer of the security for the same, the retirement thereof, and generally the payment of all moneys which should at any time become due from Ralph Meyer Robey to CASE8-IN THE PRIVT COUNCIL. [I* R. the Appellant *h"ild U further collaterally secured by a m is,-, gago of the laud un /f land l i"'rjm_- \<> iiim. part of on estate called the Camperdovn Eitttie. By another in 1 th.- April. iMlii. and made between the K,-sp.,nd. nt <>t the one part and Italph Meyer Robey of the other part, th.- !; - asaignl to ///>/* Meyer Jiobey for his absolute I- i it-tit his Retfpon --third shai 1 stations and stock mil to a proviso, that it the Respondent should pay and retire th-- said promissory notes as and \v h. n the same hhouM become doe, tlir saM indent iirr shouiil l)ecomo nuH'aiil voil, l.ut that it' the Bespondent should make default in payment of the said }>r< sory notes or any of them on the days when the same shouM respectively become lu-. thru and at any time alter >ui-h !-ianlt it should IN- lawful for Ralph Meyer Rdbey to take possession of the premises and hold the same as his absolute 'pro] nrty. and whether such possession had been taken or not, to sell and dispose of the same as he should think lit. and that the moneys to arise from any such sale after payment of the expenses should be applied in payment of the promissory notes, or such of them as should remain unpaid, whether the same should bo due or ny th- said n I tin- said mortgage to the Appellant to the intent that in pursuance of the legislative provision in that behalf the Ap]ellant miirht, as such indorsee, have the same right, title, or i - In- tin- said Ralph Meyer Rcbey had or would otherwise have had therein ; and by this indorsement the said Ralph Meyer Robey, in case it should at any time be found necessary or convenient to act in his name VOL. I] CASES IX THE PEJVY COUNCIL. in the premises as the original or apparent mortgagee, constituted J- C. the Appellant his attorney for all purposes in relation to the said i860 mortgage or the enforcement of the terms and conditions thereof. WALKEB On the 12th of September, 1862, it was agreed between the joins. .Respondent and Ralph Meyer Robey that the partnership between them should be dissolved, and that the Respondent should sell to Ralph Meyer Eobey all his interest in the said stations and stock in consideration of the sum of 1000 to be paid to him by Ralph Meyer Robey, and of Ralph Meyer Robey delivering up all the said promissory notes cancelled. The partnership was accordingly dissolved, and Ralph Meyer Robey gave to the Respondent two promissory notes of 500 each, but he did not deliver up the promissory notes which had been drawn by the Respondent, the Respondent being satisfied with his assurance that they were cancelled. ' On the 24th of September, 1862, the Appellant by his attorney, executed a deed-poll (which was also endorsed on the mortgage of the 14th of April, 1862), Avhereby, in consideration of 4000 to him paid by Ralph Meyer Robey, he assigned to Ralph Meyer Robey all his interest in the mortgage and all and singular the stations and stock, and all other the premises comprised therein, to hold to Ralph Meyer Robey discharged from the payment of the several promissory notes held by him the Appellant, and the moneys thereby secured, and for his own absolute property subject to any equity of redemption subsisting therein, if any, on the part of the Respondent, but without prejudice to any other remedy or security of the Appellant on any of the said promissory notes remaining in his hands unretired and unsatisfied. Somo time after the promissory note, which was due on the 20th of October, 1863, had become due, the Appellant commenced an action in the said Court in its common law jurisdiction against the Respondent upon that note, and thereupon and on the 27th of May, 1864, the Respondent filed the bill in the cause out of which this appeal has arisen against the Appellant and Ralph Meyer Robey, who was out of the jurisdiction of the Court, stating the facts above mentioned, and further to the effect that the Respon- dent had no notice of the dealings between the Appellant and Ralph Meyer Robey, and that the Appellant had notice of the <;r TTftHjlti"- stations vftua* uaBgned to iiiin. have obtained a * Ok'llt ti have imid otVall the said noteft. lilinm tor \\ liidi the said not- - aiul praying that tin- promissory }\<>\>* in tli- of tin- Ap-1- lant n.ijii !> .;. up to be cancelled, and that tin- A|>j -i might bo restrain. ! in. in pneetding in the aotioB oou l-y him. n:i'l from prosecuting any further action on any of th-- I noti-s, anl that if necessary an account mi-lit !>< tak-n of \\lui1 on tin- notes, ami that on taking such account the Resiv>n- li-nt miirlit be creditc.l \\ith tin- i'JniMi. aii-1 itli tin- lr between tlio actual valur t>t' tho mortgaged property reassign- -1 l.\ tli- AjijM-llant to lUiIjih Meyer Rdbey any the dee ! of the llth of IVl.ruary, 1 *;_'. I'pon tli.- tilin- of tln> lill an ex parts injunction \\as irrantfl ly tin- Primary .lu-l^'- "f the Court to restrain the Api>fllant from pnM-eeilin.ir in the said :iu\e have now to dispose of has been brought. In disposing of this appeal, we thiuk it right, in the first place, to observe that questions possibly of some nicety and difficulty as VOL. I.] CASES IN THE PRIVY COUNCIL. 61 to the rights and obligations of mortgagees, in their dealings with J. C. the mortgaged property, appear to be involved in this cause, and 1866 that the stage of the cause in which this appeal has been brought WALKER renders it difficult for us now to deal with those questions. They are questions more proper to be determined r at the hearing of the cause, and it is not necessary, nor, indeed, would it be right, for us now to give any final opinion upon them ; but yet the consideration of them is necessarily, to some extent at least, involved in the question which alone we have to consider, whether the order under appeal ought or ought not to have been made. The real point lii-t'orc us upon this appeal is not how these questions ought to be decided at the hearing of the cause, but whether the nature and difficulty of the questions is such that it was proper that the injunction should be granted until the time for deciding them should arrive. The material points, and those with which only we think it necessary to deal, appear to us to be these : What were the relations subsisting between the Appellant and the Respon- dent? what were the rights and obligations flowing from those relations? and whether the course of conduct pursued by the Appellant has been in conformity with, or in opposition to, those rights and obligations, considering, as we repeat, these several questions with reference only to their bearing upon the order under appeal, and not for the purpose of finally deciding them. As to the first of these questions, we think that no doubt can reasonably be entertained. We take it to be clear that the endorsement of the 24th of April, on the mortgage of the 14th April, 1862, placed the Appellant in the position of a mortgagee of the property com- prised in that mortgage, and that thenceforth the relation of mort- gagee and mortgagor subsisted between the Appellant and the Respondent. The assignee of a mortgage cannot, in our opinion, stand in any different character, or hold any different position,, from that of the mortgagee himself, although, as in this case, the mortgagor may not have been a party to the assignment ; then, secondly, what were the rights and obligations flowing from this ivliitiou between the Appellant and the Respondent, and we think that this point is open to no greater difficulty. It is also clear that every mortgagor has the right to have a re-conveyance of the mortgaged property upon payment of the money due ui>on the ,; j CASES IN THE PRIVY COUNCIL. [L. R Mortgage; and that loitgagee is chained with th.- duty of 1186 n -Ufh re-oonveyuii' ii|>>.ii MI.-II , T WALKEK This, indeed, is no inoro than tin- necessary ran , {, positiuns 01 'I'--, tin- iimrlguiT' -ilyn Mvurit\ Has lit* -n. tho course ot <-onr in Opposition to, thefl tions? Now, what tin- App-llant has done is thi<: In- ha-. l.y the endorsement of th'-L'lth S-pt. ml>er, 1862, trni mprised in th>- mortgage to Ralph Meyer Robey, \\\in-\i lin- l.-l>t maanA l>y tin- m>rt IT.: _-. H.- has not, as he mitrlit liavc n-'. s>M tin- ]? 'in]iris.-(l in the wcurity. luit I)-- lias, in -tTcot, sold tho security it-; It', uhi.-h hf -.-rtainly not autlmri/'-d iy th^ mortgage deed to do. Now, it is not neces- sary for ns to say that in no case can the mort^n^e debt be sev. from the security tor that l-lt : nor i- ir >r us to say that, in this particular casr, tin- '>_>. the App -Hunt receive.l from him the sum of 4000., which after paving the hill due on the 20th of January, 1863, \\ould go far to meet the bill which became due on the 20th of October, 1863, and on which the Appellant has brought ( 1) 27 Beav. 349. (2) 3 D. M. & G. 293. VOL. L] CASES IN THE PRIVY COUNCIL. 6 action ; and it cannot we think, be otherwise than a very serious J. C. question to be decided at the hearing of the cause, how this sum 1866 v^-ii^j of 4000 ought to be dealt with in account between the Appel- WALKEK lant and the Respondent ; there was here, therefore, further ground for granting this injunction. It was urged for the Appellant that the position of the Respondent was in no way altered ; that had Ralph Meyer Robey retained the security when he discounted the bills, the Appellant must have paid the bills, and then sued Ralph Meyer Robey for the re-conveyance of the mortgaged pro- perty, and that he could do so now, the transfer to Ralph Meyer Robey having been made subject to the Respondent's equity of redemption, if any ; and, further, it was urged for the Appellant, that the Respondent had nothing to do with the transaction between the Appellant and Ralph Meyer \R6bey, but we are by no means satisfied that it may not well be held to be a sufficient answer to these arguments that they lay out of consideration the Appellant's position and duties as mortgagee, and proceed more upon a view of the case as it might have stood, than as it actually stands. It was further argued, on the part of the Appellant, that in any event, the order under appeal ought not to have been made except upon the terms of the money being paid into Court, but the receipt by the Appellant of the 4000 goes far to answer this objection, and we see no sufficient reason for interfering with the discretion exercised by the Court in this respect. Upon the whole, therefore, we are of opinion that this appeal cannot be supported, and we shall humbly recommend Her Majesty to order that it be dismissed, and dismissed with costs. Solicitors for the Appellant : Walton & BuHb. Solicitors for the Respondent : Wilde, Rees, Humphry, & Wilde. CASES IN Tin: I'Kivv cot NCII.. [L.B, lli:\i;V \YKK1I\M \\ICKIIA.M AMD OTHEB8, IMS . i:i:Hvl.F OF THEM-!I\I> AND THE hi:i:i:\ii i;i: HQJLDEB8 IN nu:M:w APPELLANTS; RBUNSWIGE \M> CANADA KAIL- \\ \ I AND COMPANY . . . . AND THE NE>Y r.IirxswicK uro CANADA. T>4TTW . Tr v. fl( . xx I;AII.\\A\ COMPANY .VXD OTHKUS OX AI'ITAL 1'KOM NTAY BRUNSWICK. Railway and Land Companies Deboduns Construction of the word ' {'hdertairing" Hrgistration Judgment crediton. The St. A. $ Q. Railway Company, incorporated by a local Act, being also a land Company, transferred by agreement, together with tlic under- taking, all its projierty, lands, rights, and appurtenances to the .V. //. tway Company, also incorporated such agreement being confirmed by a private Act of the Imperial Parliament. The N. D. if C. Railway Company having borrowed money, issued ' entures to secure the same ; these were termed Mortgage Debentures, the principal and interest thereon being secured on the undi-rtaking, anil all moneys to arise from the sale of the lands of the Company, all future calls on shareholders, aud all tolls and sums of money which should become due, with the plant and rolling-stock, and with power of entry and possession of the same, in failure by the Company of payment of principal and interest as tl fcjx cifu-d, with a proviso that nothing therein contained should be held to limit the power of sale or appropriation by the Company of any of the lands of the Company, nor constitute a charge on the same. These Bonds were not registered : Hdd, by the Judicial Committee, first, that such Debentures did not on- stitute a charge in the nature of an equitable mortgage on the lands of the Company, so as to give the holders of such Debentures a right to restrain the aale of the lands by Judgment creditors of the Company, or any title to the proceeds of the lands when sold. utlly, that as Judgment creditors under an execution take the precise '<' LORD CHKLMSFORD, THE LOBD Jr-rn K KNK.HT BRUCE, THE LORD JCSTICB TURXEU, SIB JAMES W. COLVILE, and SIB EDWARD VA WlIHAJIS. VOL. L] CASES IN THE PRIVY COUNCIL. 65 interest, and no more, which the debtor possesses in the property seized, the J. C. sale being a sale by the law, and not by the Company, such Judgment 1865 creditors took the lands, subject to any incumbrances, legal or equitable, * ^ that they were subject to in the hands of the Company. WICKHAM According to the law of New Brunswick, freehold lands of a debtor, if the f HE ^ EW personal estate is exhausted, may be sold under a fi.fa. BRUNSWICK AND CANADA -.- RAILWAY Co. IN this case, the appeal was brought from an order of the Supreme Court of New Brunswick, on its equity side, which affirmed a previous order of a single Judge of that Court, refusing a motion on behalf of the Appellants and other debenture-holders in The New Brunswick & Canada Railway Company, Plaintiffs in the original suit, for an injunction to restrain the Eespondents ; the Railway company and others, execution creditors of the Com- pany, with the Sheriffs of the counties of York and Charlotte, the President and Company of the St. Stephens Bank, the Defen- dants, from selling, and, if allowed to sell, from paying over the proceeds of the sale of the lands of the New Brunswick, & Canada Railway to certain Judgment creditors of the Company, upon whose judgments executions had issued, and for an order to compel the Sheriffs, on the sale of such lands, if sold, to pay over the proceeds to the Receiver appointed by a previous order of the Supreme Court in a cause in which the Appellants were Plaintiffs, and the New Brunswick & Canada Railway Company Defendants. The facts were these : The St. Andrew & Quebec Railway Company was incorporated in 1836, by an Act of the local Legislature of New Brunsivick, for the purpose of making a Railway from St. Andrews, in that Pro- vince, to Quebec, in Canada. The shares in .this Company were divided into two classes ; and those of them which were distin- guished as Class A shareholders were, by an Act of the Imperial Parliament, 13 & 14 Viet. c. 106, constituted a separate corpora- tion, with special property and rights. The New Brunswick & Canada Railway & Land Company (Limited], was incorporated under the provisions of the Joint Stock Companies Act, 1856, with a nominal capital of 800,000, divided into 40,000 shares of 20 each. The memorandum of association of the company stated it to be incorporated for the object of VOL. I. 3 F ,;,; . ASH IN Till. lli\\\ 01 N' EL [L. j. a accepting a transfer of the 9L Andrew & Quebec Railway pany, an 1 <>t purchasing all t [>eo f ''' l1 "' I" 11 '''- uc * ei the Claw A shareholders l>urjN.x :n< un- BBTXVWICK dertaking, or any part tli- j.iirpos.-s n latin- ti t - -re. mint confirmed by a private / mm. nt. J ' w jl \ . l."l. tli.- u'i'I'TtakiiiL' >t' tli.- .SV. Andreu>'$< Quebec Railway ith all ii .ni'l ajijnirt. nances of - of tin- ( 'oinjKiiiy. \N : and re's ro transfern--! to tin- AVir Jlntnuicirk it Canada Railway Company on the 2-lth of < > -t..l r, u 1 th<- Company I'li-t- '1 a portinn ni' tln-ir Hail Tin- App-lla: ''tuns of tho New Bruns- wi> uula R"llaiits' rju-iit to the date of the inc l>orro\ved 1 to carry un th-ir operations, the nominal issu-- One of these Del-ntun s (all of which u-re in the same f< ntiL* Land Company (Limited). " Mortgage bond (of the first series limited to 200,000 * i: . 13. ture of mortgage made between the New Brunsv Canada Railway & Land Company (Limited), constituted and regulat i lie Joint Stock Companies Act, 1856," and " jo Brunswu . tada It ,l- Land Company's 1857," of the one jwrt, and Henry Wickham }\'i--J:h, ll n. .AI.P., O f Chapd Street, Hyde Park, of the other part : Whereas the said VOL. I] CASES IN THE PRIVY COUNCIL. 67 II. W. W. has advanced to the said Company the sum of 1,000 J. C. sterling, on condition that* the said Company will repay the same 1805 to him on the 1st day of January, 18G7, with interest thereon in -\VICKHAM the meantime at the rate of 6 sterling per cent, per annum, by x, equal half-yearly payments, on the 1st day of July and the 1st B;UNS\\HK; J J . v J , * J . AND CAN ADA day of January in every year. Now it is hereby witnessed that, KAU.WAV 0>. for securing the said advance and interest, the said Company hereby grant to the said H. W. W., his executors, administrators, and assigns, the undertaking of the said New Brunswick & Canada Railway & Land Company, and all moneys to arise from the sale of the lands of the said Company for the time being, and all future calls on shareholders of the said Company, and all the tolls and sums of money which shall become due to the said Company, including the provisional guarantee, and also all engines, tenders, passengers' and other cars, and every description of rolling-stock, rails, sleepers, goods and chattels of the said company, whatsoever or wheresoever being, and all the estate, right, title, and interest of the said Company in the same. And it is hereby declared that, if the said Company fails in paying the said principal and interest moneys hereby secured respectively, or one or other of them, on any of the days hereinbefore specified for payment of the sums respectively, the said H. W. W., or any person for the time being entitled to such moneys, may, at any time thereafter, upon giving to the said Company three months' notice, enter upon the receipt of the said proceeds of sales, tolls, calls, and sums -of money which may thereafter become due to the said Company in any manner from or in respect of the said undertaking ; and upon the absolute possession of the said engines, tenders, cars, rolling-stock, rails, sleepers, goods and chattels of the said company before mentioned, and the said road, and the entire charge, control, and working thereof, and reimburse himself thereout all sums due on this security, and all expenses incurred by the said H. W. W. in respect of such receipts and the working of said road, and all other expenses incidental to the power hereby granted, rendering the surplus, if any, to the said company or their assigns : Provide 1 that the mortgagee under this indenture, and the several mortgagees under any further indenture already or to be hereafter executed by the sail Company within the first issue of 200,000, shall bo entitled 3 F 2 >K8 IN THE PRIVY COUN< [L. B. jxirt pott*, one with another. t. their n^M.tive proportions of th< LSSJ in. -. proceeds of sales, tolls, calls, and sums of money, WMUUM according to the respective sums in such mortgages nx-m TH/NKW be advanced by such mortgagees reap* md to be r * tho sums so advanced, with interest, without any preference, one .. above another, by reason of th-- priority .; th. -urh mortgage. Hut the Bonds of the said first issue c "'-hall have a prior ! .th'-r Bonds whatever whieh maybe issue I. in a Idition to the sail ti ret series of 200,00<>: Provided .-tU". tii.tt nothing herein contained shall be h-H to limit power of sale or appropriation l>y tin- said Company of any of the lands of tlie said Company, nor constitute a charge upon same." The other Appellants, also Debenture-holders, claimed to I* titled under similar instruments. None of tin l> t> nture Bonds prant-d ly the Company registered, in accordance with the Statute lor th y oi I > ods and other Instruments (Revised Staiutes of New Brunswick, tit. xxx. c. 112), which (s. 4) provides that "all conveyances, memorials of judgments, or other instruments )>y \\hicli any lands may be affected, in law or equity, except any lease for a term not exceedinir three years, shall be d at full length in the registry office of the county where the lands lie, and. it not so registered, shall be fraudulent and void against subsequent pur- chasers for valuable consideration whose conveyances are previously registered;" and every judgment so registered, or an execution thereon delivered to the Sheriff to be executed, shall Lin 1 the lands of the persons against whom the judgment \\as ineunvd or the execution issued. The Respondents, the President, Directors and Company of t he St. Stephens Bank were, with others, execution creditors of the Company for* sums amounting: in the aggregate to 12,547 15. lOrf. The Respondents' judgments were registered in the month of August, 1863, in the counties of York and Charlotte, in New Brunswick ; and write of jieri facias were issued on them respec- tively, and placed in the hands of the Sheriffs of those counties. By the 6th section of the same Statute,tit. xxx. c, 113, freehold lands of a debtor are saleable under a writ of fieri facias, when VOL. I] CASES IN THE PRIVY COUNCIL. 69 personal estate, if any can be found, is exhausted. In the present J- C. case no personal estate of the debtors could be found in either 1865 county, the whole having been seized on behalf of the Debenture- WICKHAM holders, and the Sheriffs accordingly proceeded to seize and adver- THB^EW tise for sale certain lauds of the company situate in their respec- BRUNSWICK r J r AND CANADA tive counties. The lands so seized did not constitute any part of RAILWAY Co. the permanent way, and were not in fact any part of the railroad or works connected therewith ; but, as it appeared, consisted of lands which were granted to the Company by the Government of the Province, by way of subvention, and which the Company might either have sold or divided among its shareholders. On the 9th of May, 1864, the bill was filed by the Appellant, Wickham, who claimed to be a Debenture-holder of the Company to the amount of 92,000 sterling, of which 10,000 was alleged to have become payable on the 1st of March previously ; together with Evan Thomas and John Field, two other Debenture-holders to a large amount, against the Respondents, the Railway Company ; the President and Directors of St. Stephens Bank, and also four other execution creditors of the Company. The Sheriffs of the counties of Charlotte and York were also made Defendants to the bill. The bill, after stating to the effect hereinbefore mentioned, alleged that the Sheriffs had levied upon and advertised all the lands of the Company for sale under the respective executions in the months of June and September then next, and that the Sheriff of the county of York, upon being applied to to pay the proceeds of the land, when so sold under the executions, into the hands of the Receiver (appointed under an order of the Court made in August, 1863, in a cause wherein the Appellants were Plaintiffs, and the New Brunswick & Canada Railway & Land Company (Limited) were Defendants, to receive the proceeds of the sale of the lands of the Company), declined to pay the same unless under the order of the Court, or to stay the sale thereof ; and that the Sheriff of Charlotte had given a nearly similar answer, alleging in addition, that in regard to the proceeds of the sale of the lands under the executions, he should be governed by circumstances, and either pay them to the ^Plaintiffs in the executions, or hold them subject to the order of the Court. The bill also alleged, that the interest on the Debentures was in arrear from the 1st of January, I. K. j. a 18T>::. an 1 ; means of ol |v ;, pn\ :.-st thereon, CSCCpt thp.' >iTjui lands so 1< v ! th- oth.-r pcrty of the C> mortgage ' bill pr> \'ew Brunswick & Can the lands .- d until the dd>entun -s \ pai'l; or in tin :' a sale ! inu r allo\\.-d, th be resti UK- pr<" , sale to Judgment cr. di : "-Ming t' 1 tin- .li; itiTS tn pay 1.) ! : :18 afoix-8ftil. A iiK'timi \\;is ni:il-- <>n j. Mr. Justin- I: thf .lilies of tin- Sujn-iHc Ci.nri. IT an injiun-tii-n in t' hill. \\lu> n-fiiM"! tin- a]-] I'i!..'!! tli ili.- injunction, an nj.jx-al was brought to tin- lull Court, ami on , I Mil. th- i Court \\as ilcliv.-n-l l>y ( 'hii-f-Ju-^ticc Carter, ; iin. that th .iinti-1 to a Mort. tin- jircM-.-cds of the lamls. and that they \vt-iv in tlu 1 jmsition of . .jnitahl.- niortL';iu r ''-s . could not lo sustain.- 1. as tlu-rc was n Q tli.- rin-ui. [iiitablo mortgage. The lr;in,.-d < ' then jroeeelel: -At the time when the judgments \\ei-. : d th.- Ian ! ally cha !_. d and lial.le to be sold as personal estat< satisfy th.-se judgments. It can only !* sold for that purjxjse, un-' itions issn.- 1 mi these judgments, and \\ln-n so s-'l I tin- proceeds must be applied as the law authorixing th.- sale dir in our opinion, in this case stop surh sale and so prevent a jwrty having a charge by Statute from making avail- able such lii-n in the manner pointed out l>y tin- na.-tni'-nt. bind- in tr the land, for the simple reason that th-- J'tity asking the intervention ha- no ri<;ht. or title to, or charge on the land, and so no interest therein. Nor can equity declare th-- Ju Ignu nt .-r. ditors. or the Sli-rilT. after sii-h a sale, trustees for the Deben- VOL. I.] CASES IN THE PRIVY COUNCIL. 71 t lire-holders and decree either of them to hold the proceeds of J. C. such sale (not for the Judgment creditors for whose sole benefit the 18G5 law gives the charge and authorizes the sale, but) for the benefit WICKHAM of parties setting out a claim directly antagonistic. To do so T^^EW would be to destroy the legal charge of the one party, and give to BRI NS\\I. ;< AND OA\AIA the other a charge which by their agreements they expressly RAILWAY (jo. stipulated they were not to have. Can it be said that in competi- tion with the Judgment creditors who have perfected their title by registry, execution, levy, and sale, the Debenture-holders have an equal equity, they have acquired no right, legal or equitable, to the land itself, though very possibly a right to proceed against their debtors in personam upon a sale by them. We would not, however, by any means be understood as saying that a Judgment creditor may take any property whatever without regard to equitable interests. If the title of an equitable mortgagee is com- plete, and so constitutes a lien or charge on the land, it may be fairly open to argument, that, notwithstanding our Registry Acts, though the judgments operated as a charge, they must be taken as a charge subsequent to the lien or charge before created by a perfected equitable mortgage. In the view we have taken of this case the question does not arise, and we express no opinion on it. But to allow parties to hold lands unencumbered on the records of the county in which they lie, and thus enable them to obtain credit on the strength of owning such unincumbered lands, and after judgments obtained and registered, to permit such judgments to be cut down by secret bonds of the extraordinary character now put forward, and which expressly reserve the lands free from charge, would, in our opinion, be not only at variance with the whole policy of our legislation on this subject, but with every principle of justice and equity." The present appeal was brought from this order. Sir Hugh Cairns, Q.C., and Mr. Swanston, for the Appellants : First, we submit that the Debentures held by the Appellants constituted a Mortgage on all the property of the Company. As the Debentures give the holders an absolute mortgage over all the property of the Company, the Company could not give their Judg- ment creditors any greater interest in the property than they had 7 -j HUB IN nil. ri;m 001 N n. J.G t heoMehrw at the date oi tin- judgment*, i time the (' I- P an X h**! no interest in its property exo th* i< i WIOUUK tores, a n' 1 t h> . I u lament creditors can only take v. j-uny ... ' u bad tho power to charge. The true constru.-tion . -mini the debentures whi.-h tli.it nothing therein contained RAILWAY Co. should be held t<> limit the ]., r of sale or aj.jm.j,! iatioii !>;. Company of any of th*- lands of the Company is plain ; it was in- 'luced for the sole purpose of . nal.lin- the Company, as a land company, to effect sales of lands wl. ju-L. -1 dient so to el>. ntur.-h'.lders being required to perfect th.- titl.- of the purchaser, the rij;ht of the Debenture-holders attaching to the proceeds of the sal. in the place of th- land soil. It cannot be doubted that the true ; of the Debentures is t.. -i\- tin- J>.-U-ntur<"hoH-rs an absolute mortgage over all the ]ri|H rty of th- Company, and this is not made less ul'-olut.- by the condition that the Company ini^rht ex- change lan sold by the sheriff but the interest of the debtor, and the interest of the company is an interest subject to the agreement with the Debenture- holders. In Beavan v. The Earl of Oxford (1), it was h-ld that a Judgment creditor was not a purchaser \\ithin the nn-aninir of the Statute. 27 Eli/., e. 4, and had no title toset aside ;1 voluntary deed. Whihoorth v. Qaugain^l) was a suit by an ..juitable Mortgagee against a Judgment creditor of th. Mort^airor. \\ho had obtained possession of the mortgaged estates under elegiis, and the Court held that the Plaintiff acquired a special lien on the property, an 1 that a judgment had relation to the time it was entered up, and did not affect any bond fide conveyance made before that time. Assuming then that the jud>y < ^v-* Palmer], FTttfefM, for the ' A I: ' . urea, or mortgage bonds, as th no charge on the la in U i bf -ale l< <|iieMion as to \\luit inter. >t t In- 1 lelx-ntim-holders take in a - U upon til-- construction of tin- iign in. lit. ;ut.-. :J1 A L"J Viet. -. l.'il. carrying out that agreement and the language of tl i. I > 1. -Mures. Uy that Statute th <>!' St. Andrews & Quebec Railway Comj/ \\us tranafr-rr. il to the New Brunei-; /. ,i- Canada Railway & Land Coi. \\onl - uiiil. Ttakin^" is a general expression, and its meaning inn-; I in.-tl from the intention inanii'. >).'iitun-- alb <-t to tran>fT to iirc-holili-rs is tin- " un li-rtakin^ " of the Company. tin- iii' rom the sale of the I m.l. tolls. Are. ; hut these l-> not jrive the Debantore-holden or confer on them any .il title i in the sale of the lanon th The case of Do< . The St. Helens & Runcorn (i way Company (1) is tn all fours \\ith the present case. That an action of cji-ctment hrou^ht hy a mortgagee of the "un taking," and, as in this case, turned upon the meaning of that \\orJ, and the Court of Queen's Bench held that the \\ord un-l-r- takinu'" did not give to the mortgagee such an interest as would enable him to maintain ejectment. Land of a Railway com pa i not included in a Mortgage by the Company under such a term, and cannot pass: Russell v. The East AmjUan Railway Cbw- pany(2)', Fripp v. The CJiard Railway Company (3). In equity a covenant to settle on A. lands of a certain yearly value without mentioning any lands certain, will not create a specific lien: Fre- moult v. Dedire(4); Berrinyton v. Evans (5). Even if the de! (1) 2 Q. I',. Hep. 364. (4) 1 P. Wins. 429. (-') (.'-) 3 Y. &C. 384. (3) 11 Hare, 241. VOL. I] CASES IN THE PRIVY COUNCIL. 75 tures were effectual to create a charge on land, they were not J. C. registered as required by the law of New Brunswick, Revised 1865 Statutes, tit. xxx. c. 112, s. 4, and on that ground are inoperative WICKHAM against the Respondents as Judgment creditors. THE'N* But there is no precedent for such a bill as this to restrain the BRI-NSWN-K civ. -fp IT 11 i T i AND CANADA onerins selling the lands. In the case of an ordinary Mortgagee KAILWAV Co. it certainly would not lie ; and as to the alleged equitable right, there is no relation subsisting between the Debenture-holders and the Judgment creditors to affect a trust in their favour upon the proceeds of sale of the lands. There is no allegation in the bill of any equitable ground whatever for interfering with the ordinary remedies of the Respondents as execution Creditors according to the laws prevailing in New Brunswick. Their Lordships' judgment was delivered by LORD CHELMSFOKD : This is an appeal from v an order made by the Supreme Court 18G5 of Judicature of New Brunswick, affirming an order made by Dec. 22. a single judge of that Court refusing a motion for an injunc- tion to restrain the Defendants in the suit from selling, and, if allowed to sell, from paying over the proceeds of the sale of lands of the New Brunswick & Canada Railway & Land Company to certain Judgment creditors of the said Company upon whose judgments executions had issued, and in the event of a sale to restrain the Sheriffs from paying over the proceeds of the sale to the Judgment creditors, and to order such proceeds to bs paid over to a Receiver previously appointed on the application of the Plaintiffs. The Plaintiffs were the holders of certain mortgage deben- tures granted by the Company, and claimed under the terms of those debentures to have a right to prevent the sale of the lands under the executions issued by the Defendants the Judgment creditors, or at all events to be entitled to the proceeds of such sale. There is no doubt upon principle, as well as on the authority of the cases cited in the argument at the Bar, that the right of a Judgment creditor under an execution is to take the precise 7<; CASES I UVY OOOK< J. C. interest, and no more. which the debtor poaooatoo in the pr..|*rty 1865 seized, and conscnju. iitl\ that -u,-i, .list bo sol I l>y tii-- SheiitV \\ith ai; nbnBMfj legal and aqui TB/NBW * MM ' ( ' n ll waM ^"''.i 11 ' 1 i" the hands ou the question what, as between the New Brunswick & Canada Railway Company ai. 1 t he I ' I >.nt lire-holders, was the interest which the Company had in land- taken in execution l>y the .1 u lenient creditors. The title of ill.- ('oinpany (! |*>n a private Act of the Imp I ^Jg. l.iture. L'l A- L'li \'i.-t. . l.~. I, l.y which the undertaking of i St. Andrews & Quebec Railroad Company was tran in pursuance of an agreement entered into l-t ween the i companies which is set out in the schedule t<> th- Act. r tliis agreement tin- shares of a class of shareholders in tin- Si. Andrews & Quebec Company, called the Class A Compa were to be transferred to the ] Be Company, and the Class A Company were to be entitled to receive the quantity..! l'J.070 acres, in addition to a quantity of 20,630 acres already granted to them. And the Transferee Company were to be entitled to appropriate out of the lands to be granted to them 16,000 acres of 1 in respect of their Class A shares, and 105,000 acres in respect of their Class B shares. Both in the agreement and in the Act confirming it a ma: distinction appears to be made lx.-twe.-n the un lertakini: itself of the St. Andreics & Quebec Railroad Company and the lands and other property belonging to the Company. In the agreement the companies mutually agree with each other that the under- ing of the St. Andrew's & Quebec Railroad Company, and the control and management thereof (i.e., of the undertaking), Is, goods, chattels, and present and future property and effects, rights, and expectancies of the Si. Andrews & Quebec Railroad Company shall be and are hereby transferred to the Transferee Company." And the 3rd section of the Act confirms the agreement in these words: "the transfer by the same agree- ment of the said undertaking and of the said lands, rights, and ncies to the Company is hereby confirmed, and the same VOL. I.] CASES IN THE PRIVY COUNCIL. 77 undertaking, lands, rights, and expectancies shall from and after J. C. the passing of this Act be vested in the Company." It will be 1865 necessary to bear this distinction in mind in determining what WICKHAM were the rights which were acquired by the Appellants under T v - the terms of the Debentures issued by the Company. BRUNSWICK . . . , AND CANADA The Company, it appears, was by its constitution a land as well RAILWAY Co. as a Railway company. Of course it was essential to the carrying out of the objects of this part of their undertaking that they should have the power of dealing freely with the lands belonging to them, and as they were also to be entitled to appropriate a large quantity of these lands to their shareholders, that they should not be restricted in the exercise of this right of appro- priation. The debentures which the Company issued to the Appellants and others seem to have been framed with a special view to these objects. The one given to Mr. Wickham, one of the Appellants, is printed in the proceedings as a specimen of th m all. It is termed an indenture of mortgage, dated May 29, 1862, made between the Company of the one part, and Mr. Wickham of the other part. It recites the advance by him of 1000 to the Company on condition that they will repay the same to him on the 1st of January, 1867, with interest in the meantime at the rate of 6 per cent, per annum, by equal half-yearly payments on the 1st of July and the 1st of January in every year. It then proceeds : " Now it is hereby witnessed that for securing the said advance and interest, the said Company hereby grant to the said Henry Wickham Wickham, his executors, administrators, and assigns, the undertaking of the said New Brunsmck & Canada Railway & Land Company, and all moneys to arise from the . sale of the lands of the said Company for the time being, and all future calls on shareholders of the said Company, and all the tolls and sums of money which shall become due to the said Company, including the provisional guarantee, and also all engines, tenders, passenger and other cars, and every description of rolling-stock, rails, sleepers, goods, and chattels, of the said Company whatsoever or wheresoever being, and all the estate, right, title, and interest of the said Company in the same." 78 CAMS IN THB PRIVY OOUN< 'a; <1 i Company fails in pu principal IT int.TcM mon -\ - s ipeciiii u .. ,.,,,-. Mr. it , ' i. i n:.i;. . up ;. gii lag tkrei month ' nofck tibq Company, enter uj-.ii .roceods of sales, t .-WICK calls, ami MUMS >! . hi.-h IMMV t 8 -aid < 'om|i iny in an\ i or in reape* m. /, and ujxui tin- absolute line* engines, tenders, cars, rolling-stock, rails, sleepers, goods, ami the said Company bdoie mentioned, and tin.- said road .(introl. -ulMirs.- 1 self th' r -lit tin- sums ilu ii[M>n his - nd his expenses. closes with a proviso in these terms :<*! also, that nothing In n-iu < -untamed shall be h< Id to 1, th- iijjin>[>riatioii lt' the said company, nor constitute A ohftlge ii|>oii MB It \\as c..!it. ud.-d on the part of the Appellants that these 1 ' .<<-vi< il .igecs all th' iiijtany \\itlu.nt ;. I that tin- undertaking i' 'ai.ds \\hirh are a portion of the undertaking: ,-t n s>:irily pass under that word. On the -termine that the conveyance of an ui, taking by a railway company \\ould in no case carry tlh- land; Init, as was said by ^Ir. Justice Coleridge, " The \\ord is an and may be construed as nu-anini: the. sj> -culatioii generally, or possibly it might be taken to in -lul'- the land itself.** HaviMif, th.i-n, no certain an 1 s---ttled g, when this \\<>rl i- used in any conveyance of property by a company, it n be construed a< to the obvious intention of those who employ it. As a guide t" in m ,inin_: in bentures in .'rence may again be made to the airn-ement and tin- tnmsierring the undertaking to the New Brunswick & Canada (1) 2 Q. R Rep. 3G4. VOL. I.] CASES IN THE PRIVY COUNCIL. 79 Company, and to the manner in which the undertaking and the J- C. lands are in expression (at least) distinguished from each other. 1865 Turning from them to the debenture it will appear that this WICKHAM distinction is not only preserved but strengthened. For as if to THE\EW shew in the clearest manner that the word " undertaking " was BBGWIWICIE AND CANADA not intended to include the lands belonging to the Company, it is RAILWAY Co. immediately followed by a grant of all moneys to arise from the sales of such lands. Now if it was intended to comprehend the lands themselves in the Mortgage debentures, or if the word " undertaking " would ex m termini contain them, the Debenture- holders would not only have been entitled to, but would have had the complete control over, the proceeds of the sales of lands, as the Company could not have sold without their consent, and it would, therefore, have been quite unnecessary to provide specifically for their having the moneys to arise from the sales. It ought, perhaps, also to be noticed that even when provision is made for the default of the Company by non-payment of the principal or interest secured by the debentures, the right of entry which is given to the Debenture-holders is not upon the lanJs themselves, but only upon the receipt of proceeds of sales. But if any doubt exists upon these terms of the debenture the proviso must entirely remove it. It has been already observed that the company is a land company, whose very object is to deal with and dispose of lands, and that it has a right to appropriate portions of these lands to its shareholders. With these operations, any interest in or charge upon the lands would materially interfere. The words of the debenture are so sweeping and general that it might well be supposed they would give the mortgagees the right to every description of property belonging to the Company. Therefore, to prevent any misconception, the proviso in express and clear terms says to the Mortgagees, what has been previously granted to you shall not limit the power of sale or appropriation by the Company of any of the lands of the Company, nor constitute a charge upon the same. In this view the proviso is not inconsistent with but merely explanatory of what has gone before ; but, according to the Appellants, the meaning of the proviso is, that although all the lands are granted to the Debenture-holders, yet in every instance in which the Company wishes to exercise its power of sale MI . UBBB IN Till. i'i:l\ ' "i v li ' i of : 'i"n tli. HINDI the particular land* ia to be is,.-, \\itlidra\Mi, I'ut to reniiiin u]-:i the unx-M and unappropriated Wnau residue. It is not. ho\\, \. T. usual to treat the actual right to _* lands as a mere charge upon th. m ; and as the power of Bale and uds to any and all <>! tli<- lands of the Company, Co. it does seem unreasonable, HJM.H the A pp. 1 hint's construction, that all the lands should be given to the mortgagees as a part <>: tin ir security, and apow.i l.-it in tin- Company immediately to take them all auay a.u'jiin. It seems dear to their L the lands not being in terms -rant. 1 l-y the Mortgage debentures, the proviso makes the intention of tin* parties perfectly clear that no general expression used in tin L r rant was intended to com] mi them, an 1 therefore that the Debenture-holders are not entitled to int.Tt'.T.- \\ith tin- sale of the lands under the ex- -sued by tli. . I ui lament creditors. But the Debenture-holders insist that if they cannot stop sale of the lands, they are entitled, under the terms of their debentures, to all the moneys arising from such sale. It is quite clear, however, that the sales contemplate 1 l,y the grant are those which are to be made by the Company in the course of their regular operations. It was contended on the part of the Appellants, that the sale under the execution would be virtually a sale by the Company, as the title of the Judgment creditors is derived from them. Hut that is not so. The Judgment creditors take what belonged to the Company, l.ut not take under them ; and a sale by the Sheriff under an execution is a sale by the law, and not I >\ the Company. It is clear, upon the whole case, that the lands of the Company <1H not pass to the Mortgagees under the Debentures, nor are they entitled to the proceeds of the forced sales. Their Lordships will, therefore, recommend to Her Majesty that the decree appealed from be affirmed, and the appeal be dismissed with costs. Solicitors for the Appellants : ChUton, Burton, Yeates, & Hart. Solicitors for the Respondents: Btrcham, Ddtrympk, Drake, d'Co. VOL. L] CASES IN THE PRIVY COUNCIL. 81 THE QUEEN APPELLANT ; J. c*. AND 18C5 WALTER WATSON HUGHES AND ) _ TH^EE EDWARD STIRLING j 1 Hc HE , ON APPEAL FROM THE SUPREME COURT OF THE PROVINCE OF 2?ec< |^ 2 j' SOUTH AUSTRALIA. 1866* Crown grants Leases under Colonial Act Scire facias Record Supreme Court of South Australia. Leases granted by the Governor of South Australia under powers conferred on him by the Colonial Act, 21 Viet. No. 5, sec. 13, for regulating the sale and other disposal of waste lands belonging to the Crown, sealed with the public seal of the Province, but not enrolled or recorded in any Court, are not in themselves Records; and, though bad on the face of them, being r for a larger quantity of land than allowed by that Act, cannot be annulled or quashed by a writ of Scire facias. Such writ is a prerogative judicial writ, which must be founded on a Record, and cannot under the constitution of the Supreme Court in South Australia issue out of that Court. The proper remedy for an unauthorized possession of lands of the Crown in the Colony is by an information in Chancery, or Writ of Intrusion. The case of Tlie Queen v. Clarke (1), commented on and explained. J. HIS was an appeal against a decision of the Supreme Court of the Province of South Australia, making absolute a rule obtained by the Respondents for quashing a writ of Scire facias issued out of that Court at the suit of the Appellant, on the prosecution of Samuel Mills, whereby the Respondents were commanded to shew cause why certain leases granted by the Governor of the Colony of South Australia to the Respondents should not be declared void. The question raised by the rule, though affecting the rights of the Crown and the validity of the leases, was narrowed in the first instance, both in the Court below and on the appeal, to the power of the Supreme Court of South Australia, to issue the writ of Scire facias to annul grants or leases of Crown lands within that Province. * Present : LORD CHELMBFOBD, SIR JAMES W. COLVILE, and SIB EDWARD VAUQHAN WILLIAMS. (1) 7 Moore's P. C. Cases, 77. VOL. I. 3 G CASES IN THE PRIVY COt'XCIL. J. 0. grant* sought to bo am. vo inden- IM tureof lease, t<<>t \\lii. h \\rre dated on fSqiteor Turn QCCIN tnaining t- n >n t! : and all of \\hirh ioB. were ***&* between Her Map >ty the 1^1. -n, of the first port, Sir >l Grave* MacDontull, < eneral and Governor in Chi. f -it! '-e of South Australia, of the second part, the Respondents of the thinl ]>art ; and by Midi int "f tin- ( 'r\\n \\itliin I'mviii' .-sst"l to In.- dniiix-l 1'V tin- ' an-1 in jiur illations of the a t, to tin- K< sjHwlrnts, tlu-ir cx<-<-ntors, ftdminifftnion^ an 1 assigns, for the juriH>s*-s of mining, i'or tip re t mis of fourteen years from tin- dates of the indeiituros, with sm-h ri of rnii-ual as tli M-indcn: scalr.l \\ith th- public seal of tli. i an '1 in tin- name and on l*-half of II. r y by the Governor of the Province, in accordance with the provisions of the before-mention.- 1 Waste Lands Ad, but \ not filed or recorled in the Supreme Court. It Mas alleged on the part of Miffs, the prosecutor of the writ of Scire facias, that the indentures of lease or grant of the 7th of 1861, and the 22nd of October, 18G1, comply with the provisions of the Waste Lands Ad and the regulations made in pursuance thereof, and were obtained by the 1 ; representations and upon false suggestions, which were set out in tli- \\rit of Scire facias, and that the 1. ntures were not good and valid grants of the portions of wa.-te l.-uids of the Crown purporting to be thereby demi and that the same ought, therefore, to be annulle 1. : vine Court of the Province was established by a Provin- "-I . as a Court of Record, with all the juris lic- tion, within the Province anil its dependencies, the Courts of Queen's VOL. I.] CASES IN THE PRIVY COUNCIL. 83 Bench, Common Pleas, and Exchequer have in England, and also J. 0. as a Court of Oyer and Terminer and gaol delivery, and as a Court 1865 of Equity in the Province and its dependencies, with all the juris- IJ HE Q rEEN diction of the Court of Chancery. The 16th section of the Act H * gave the Judges of the Supreme Court power to make rules and orders concerning the practice and procedure of the Court. No Act of the Imperial or Colonial Legislature gave the Governor of the Colony authority in the matter of writs for re- pealing grants from the Crown, nor had there been any legislation in the Colony in reference thereto, nor waa any power given in express terms to the Supreme Court to issue writs of Scire facias. Except the Supreme Court, there is no other Court in the Province of South Australia out of which a writ of Scire facias to annul a Crown grant within the Province could issue. On the 16th of September, 1864, Mills presented a petition to Sir Dominick Daly, the then Governor of the Province, in which it was alleged that the several leases above mentioned ought not to have been granted to the Bespondents, and were contrary to law. By a warrant under the hand of the Governor, and sealed with the public seal of South Australia, bearing date the 2nd of March, 1864, and directed to the Attorney-General for the Province, the Governor authorized and required the Attorney-General to sue out in the name of the Crown a writ of Scire facias, for the purpose of compelling the Respondents, and all other persons claiming under them, to shew cause why the indentures of lease should not be declared void and annulled. In pursuance of the warrant and fiat, a writ of Scire facias was on the same day issued out of the Supreme Court, directed to the Sheriff, who, on the 28th of April, 1864, made his return to the writ. On the 29th of May, 1864, a rule nisi was obtained by tho 1! s pendents for quashing the writ of Scire facias, on the grounds, first, that the Supreme Court had no jurisdiction to issue a Scire facias for annulling a Crown grant. Secondly, that there was no record in the Supreme Court of South Australia whereon to ground such writ. Third, that it did not appear by the records of the Supreme Court that the authority of Her Majesty's Attorn* y- 3 ,G 2 v i CASES Of THE flOW COUNCIL. [L. R. j. a General in the Colony had been jnr to tii<- i- 1868 BU--II unt. Fourth, i ,::i i' ntly disclose thal l '"' prosecutor was * party damniti.-d. unt 1 not --i forth any r< . annulling of \\hirh it had been i-u, d ; and >i\th. tli.it th- unt \\.i-* \\ron-ly t.-t' d. .1 of August, 1^'il. tli-- Supn-mo Court gn inent on tiiLs rule in favour of tlio Respondents. Two of tin- Judges (Mr. .lu-tice Gwynne anl Mr. Justice Booihby) being of opinion tint, as there was no record to ground the proceedings, tli. \\rit must bo quashed: the Chi- f Justice (The Jiard Daviea Hanson) dissented, holding that grants from t in tlio Colony, und.-r the iul>lio seal of the Colony, urds; \\lnTriii>oii tin- rule uas made absolut*-. From this juoses of the appeal that the leases in qu were void, being for quantities of land exceeding eighty acres, the limit named in the 13th section of the Waste Lands Act, 21 Viet. No. 5. Sir Hugh Cairns,Q., Mr. M ff; CASES IN THE XulW COUNCIL. J. c. Brunts '" (> ly bo made by Lotion Patent 1865 Groat Seal, uliieh aieRooordfl without 1'iirtl: l*?ingeu: TUB Qrnar in tho Hi: of Chan < \\honcotheyissue: Co. / 1Itfc 1(5: 1 A IT. tit. Prorog. (C); Peak* R 31, i 2 Sla. Comm. 346; Doc. & Stu-1. I i're- rollr Act. In our Colonies, questions regarding the title to lands are to be 1, in tin- tirst instance, by the Court of local judicature, from vhrnce an app'-nl lirs to I L-r Majesty in Council : Attorney-General %. Stetrart (2). This must l>o done in the ordinary mode of pro- cedure ; there is no instance of such a proceeding as this in the Colonies. Tho case of The Queen v. Clarke (3) does not apply ; it s heard ex parte, and tin- riirht ot the Governor of New Zealand make grants at all of waste land was not questioned, though the particular grant in question was held bad for excess; that was the point determined, and no reference was made, or requin- tli<- ]>rot-<-ti<>n <>i tin \<> rvmody. IH was said by Chief Justice Jama, in the case of The Eastern Archipelago Company v. The Queen (1), "To every Crown gi there is annex* d \,\ tin- common law an in lie repealed by Scire facias by the Crown. <>r 1>\ a fu in Australia are of sin-h an analogous character an-1 d-H-rij>tiou as to be necessarily subject to the same remedial process of Scire facia* for th.'ir r.-jn-al. The first thing to be considered is the n.nsiitutiin of tin- Supreme Court in th- PrcviiKv. 'J'lii> \\as s-ttl. 1 1.\ a Colonial A<-t, 17 N'ict, No.ol, \^'>>'>. intitiilt-il, " An Acttoconsolilati- the several Ordinances relating t<> tin- C'taKlishment of the Supreme Court of tin Province of South Australia" By the 7th section of that Art, the Court is constituted a Court of Record, and is to have cogni- zance of all pleas, civil, criminal, and mixed, and juri-dict : all ca^-s \\hatS(K-vcr, as fully and amply in tin- Province and its dependencies as Her Majesty's Courts ..t King's Bom h. Common Pleas, and Exchequer at Westminster, or <-ith-r of them, lawfully have or hath in Enylany the 8th section, it is enacted "that the Supreme Court shall be a Court of Equity in this Province and its dependencies, and shall have JM.\\ ( rand authority to administer justice, and to exercise and perform all such matters, and things necessary for the due execution of su.-h njuit- able jurisdiction as the Lord High Chancellor of Great Britain can or lawfully may within the realm of England; and all such acts, matters, and things as lawfully can or may be done by the siid Lord High Chancellor \\ithin the realm of England in the exercise of the jurisdiction to him belonging." The ICth section gives tin- Judges of the Supreme Court power to make and pr; (probably a misprint for fc frame ") general rules and orders "touching and concerning the time and practice of holding the (1) . U4. VOL. I.] CASES IN THE PEIVT COUNCIL. 89 Courts, the forms and manners of proceeding, and the practice and J. C. pleading upon all indictments, informations, actions, suits and 1866 other matters to be brought therein." Whether, under the powers THE QI-EEIT conferred by this section, it would have been competent to the HUGHFS Judges to have made a rule for " the form and manner of proceed- ing " in suits to revoke grants of Crown lands, and to have ordered that the remedy by Scire facias should be applicable to such cases, it is unnecessary to consider. They have not done so. They have promulgated a rule as to the teste of writs of Scire facias, but as that process is applicable to other objects besides the grants of Crown lands (such as recognizances and judgments), the right to use it in order to annul the leases in question must depend upon whether the grants are of the peculiar nature and character to render them a proper foundation for this particular remedy. The leases were granted by the Governor under the powers conferred upon him by a Colonial Act, 21 Viet. No. 5, of 1857, intituled " An Act for regulating the sale and other disposal of waste lands belonging to the Crown in South Australia" By the first section of this Act, " All the waste lands of the Crown within the Province are to be disposed of in the manner and according to the regulations therein provided, and not otherwise." The absolute sale of these lands is provided for by the 5th section in these terms, " Under and subject to the various provisions and regulations hereinafter contained, the Governor is hereby autho- rized and required, in the name and on the behalf of Her Majesty, to convey and alienate in fee simple, or for any less estate or interest, to the purchaser or purchasers thereof, any waste lands of the Crown in the said Province, which conveyances and alienations shall be made in such forms as shall, from time to time, be deemed expedient by the Governor with the consent of the Executive Council, and shall be sealed with the public seal of the said Province." There can be no doubt that under the words, " in fee simple or for any less estate or interest," in this section, the Governor might have granted leases of the Crown lands " in the name and on the behalf of Her Majesty." But the leases in question were made by the Governor himself under the authority of the 13th section of the Act, which enacts that " it shall be lawful for the .o CASES IN THE PRIVY COUNCIL. [L. It J.C. Governor to demise fr tin- pnqjosesof ininiii-_r for any metal >r 1866 mineral (excepting gold) to any pereon v portion of the waste lands of the Crown \\ithin th" n ' iri not \ (Ceding eighty acres, for any perio teen yean, at an anmul i- nt <>t' l -n.-h regulations for tin- -i-. h leases, an! iking aii'l n -sumption ; the same, as may, from tin,, t<> t i-...-. l in respect ma'l l>y the ; Exeeuti\e Council." The leas*-- '1 in this section an > IK- under the Provincial seal; an 1 although the leaflet in tjii'-stioM \\-re so sealed . tin- authority \\oiild jrol)ally have been as htrictly itiir^ii! 1 if they had been executed under tin- private seal of the Governor. It may be assunn d ;<: tl..- ]mr{K>6e8 of the present case that these leases are v<>i t ijuantiti<-> of lands exceeding ei_ acres; and the Appellant insists that the remedy by Scire facias is not only tlu- projM-r, but the only remedy for wetti: aside. It was contended, in the first place, that these leases virtually Itecords. That the (iovernor \\as entrusted \\ith all ministerial duties of putting the Pmviii.-ial seal (the Qu< seal of the Pr.'\ grants of Crown lands. That the Supreme C5ourt besides Keing a Court of Record is also a Court of Kut l.y tho Respondents are applicable i" grant of tin- h-ases in |u<-tin. The \\rit of intrusion li. Tin very case in which a trespass is committed on tin- l;n. 'j^ Crown, or a person -n the same without title. And th.- information in Chancery may be used to assert the Crown's n to . a- n WHS in the case of the Attorney-General \. Chambers (1), upon a question of the right of the Crown to tin- shore between high and low water mark. In the present case a statutory power is given to the Governor to be exercised over the Crown lands. This power must be strictly pursued. The leases which he is authorized to make are limited to the extent of eighty acres. Thil |uantity is said to be exceeded in the leases in question ; if so, they are altogether v- and the lessees are intruders upon the lands. The rem di< < which have just been adverted to are, therefore, strictly applicable to tip- Jl< -SJM indents' unauthorized possession of the lands of the Crown. In the argument for the Appellant, the case of the Queen v. Clarke (2) was relied upon. That was a proceeding in Scire facias to annul a grant of Crown lands in New Zealand, where the .Indicia! Committee upon appeal recommended that judgment should be entered for the Crow n. This, it was insisted, is an express that Scire facias will lie although there is no Record. In the ju la- ment of the learned Chief Justice of the Supreme Court the case is treated as a conclusive authority in favour of the promoters of th-- Scire facias. But it appears to their Lordships that it cannot properly be regarded as a determination of tin- (ju'-stion. From the beginning to the end of that case there was nothing to raise any doubt as to the propriety of the proceeding by Scire facias. No objection was taken to it in the Colony. Not the slightest suggestion was offered upon the subject in the course of the argu- ment upon the appeal. The hearing before the Judicial Com- mittee was ex parte, the Respondent not having appeared, and the attention of their Lordships was not in any way called to irregularity of the proceeding in the validity of which they are supposed by their silence to have acquiesced. Even if the point occurred to their own minds, they might very fairly have inferred from the absence of all objection in the Supreme Court of New (1) 4 D. G. M. & G. 206. (2) 7 Moore's P. C. Cases, 77. VOL. L] CASES IN THE PBIVY COUNCIL". 93 Zealand that the proceeding by Scire facias to annul grants of J.C. Crown lands was proper in that Colony, either from the grants 1866 being made Kecords of the Court or from the Judges having power THE QUEEN to make rules as to the form and manner of proceeding, and HUGHES. having authorized the process of Scire ftcias in the case of Crown grants. The presumption arising from the clause in the Act, 1859, No. 18, authorizing the Governor to grant letters of registration for inventions, which expressly makes them liable to be repealed by writ of Scire facias, is unfavourable to the Appellant's argument. It may not unreasonably be supposed, that the Legislature never contemplated that grants or leases of waste lands would be made irnprovidently by the Governor, and would require to be recalled. But grants of monopolies to exercise inventions were likely to be occasionally prejudicial to private interests, and, therefore, it was thought expedient to give the subject the protection of this pre- rogative remedy. If from the experience of the present case it should be thought desirable that the writ of Scire facias should be made available for the repeal of Crown grants, the Judges appear to have the power, under the Provincial Act "for consolidating the several Ordi- nances relating to the establishment of the Supreme Court," to promulgate a rule that the form and manner of proceeding in these cases may be by Scire facias. Or if there be any doubt of the sufficiency of such a rule, the remedy may, as in the case of letters of registration for inventions, be given by the Legislature. All difficulty for the future will thus be removed. Their Lordships being of opinion that the rule granted by the Supreme Court for quashing the writ of Scire facias was rightly made absolute, will recommend to Her Majesty that the appeal against it be dismissed with costs. Solicitors for the Appellant : Gray & Mounsey. Solicitors for the Respondents : Torr, Janeway & Tagart. CASES IN Till: I. :; IN mi: .MATTER OF TIN: .u:i;>i:v .iriUTS. Is, .. Jam, I : T.TITION FROM Till. Couttitutum of 0* Boyal Cowl of Jeney Prerogative of the Crown Resignation of Jurat* yew election!. no constitution and law of the Island of Jtney, the Royal Court it composed of a Bailiff and twelve- Jurat*, and upon the voluntary resigi of a Jurat it is the prerogative of the Crown to permit such resignation, and to authorize a new election to fill up the vacancy so occasioned. Srcus, on a vacancy occasioned by the death of a Jurat, when the Boyal Court have power alone to order a new election. States of Jeney passed two Actci accepting the resignation of two Jurat* on the ground of their length of service and inability to continue to orm the duties of their office. These Actet were objected to by certain landowners and others in the Island, who petitioned the Crown against con- firming the same, and to suspend the filling up of those offices until a reform, long in contemplation, of the Royal Court had taken place; but, althov. was considered by the Lords of the Committee that a complete change in the constitution of the Royal Court was necessary, yet, as the suspension of new elections of Jurat* would not affect any improvements hi the constitution of that Court, Her Majesty was advised to permit such resignations, coupled with directions that the same privileges and distinctions that the retiring Jurats had enjoyed as Jurats should continue to them dur lives, and ordering new elections to supply the place of such vacancies. 1 HIS was a petition and representation of the States of Jeney to Hrr M.th of January, 1864, for obtaining new elections of Jurats in the room of Philipe De Ste. Croix and Philipe Winter Nicdtte, resigned. The petition was met by a count* -r \ -tit ion from certain landed proprietors, merchants, and others, pra\ for the suspension of the elections to the vacant posts of Jurats of the Royal Court. Another petition was also presented on behalf of an association designated " the Committee for the Reform of the Pment: The LORD PRESIDENT (the EARL GRAXVILLE), the LORD CHAN- CELLOR (LORD CHAN-WORTH), LORD CHELMSFOED, the Right Hon. SIR GEORGE GREY, and the Right Hon. J. A. BRUCE. Assessors: The ATTORNEY- GENERAL (Sin R. PALMER), and the Qi ADVOCATE (Sm R. PHILLIHORE). VOL. I.] CASES IN THE PEIVY COUNCIL. 95 Eoyal Court of Jersey? against the acceptance and confirmation by Her Majesty of these resignations. These petitions and representations were severally referred by Her Majesty to the Lords of the Committee of Council for the affairs of Jersey and Guernsey, for their opinion and advice thereon. The circumstances which gave rise to these proceedings were as follows : In the year 1864, Messrs. Ste. Croix and Nicolle had exercised the functions of Jurats in the Island of Jersey for many years. Ste. Croix for thirty years and Nicolle for twenty-six years. On the 14th of January in that year, at a meeting of the States of the Island of Jersey, that Assembly took into consideration a letter addressed to it by Ste. Croix, praying the States, on account of his long service and ill health, to solicit from Her Majesty iu Council permission to resign his office of Jurat ; and the States, after deliberating thereupon, acceded to the request, and passed an Acte for that purpose, which they directed the Greffier to transmit to the Privy Council. On the 29th of January, 1864, the States, at their sitting of that day, took into consideration a similar application of Nicolle, and passed a similar Acte. These Actes were transmitted by the Greffier of the States to the Privy Council in the usual manner for the sanction of Her Majesty. In the month of February, 1864, a petition was presented by William Lempriere and John Le Couteur on behalf of themselves and 279 landowners and others of the Island of Jersey, praying that all future elections of Jurats might be suspended, until such measures should have been taken as Her Majesty should deem necessary for separating the judicial from the legislative functions of the Jurats, and for insuring the due administration of justice. The Lords of the Committee of Council for the affairs of Jersey and Guernsey took this petition into their consideration, and, on the 9th of March, 1864, the Lieutenant-Governor was officially informed that the Lords of that Committee would be prepared to recommend to Her Majesty that the prayer of the petition should be granted, and to aivise Her Majesty to accept the resignation of P. C. 1866 IN THE MATTER OP THE JERSEY JURATS. M; TASKS IN THK 1MMVY tho two Jurats, and to direct that their place* should not be filled i- u|.. .MI r. hiii.: a . smranoe I'n uu tin? States of Jeney that i N ' ; 7,i: they were prepared to take the Decenary measures for carrying MATTER.* j n to effect, in whle ur in jwirt, the recoiiiin.-nlati'ii .,! th- 1-' Jl tiuissioners with regard to tho constitution of the 1 irt. The States of Jersey on the 7th of April, 1 th-- ! 1 'resident of the Council a representation, urging, amongst "th'T things, that the suspension of the elections for M--U Jurat* would he indin-ct \iolatioii of the constitution of the ]{,,yal < as by Jaw established, and that it would likewise, in efl'e. as a repeal of the law which directs that ujon a vacancy occurring, A election to tho vacant office should bo ordered )>\- the Court. In the mean time, a Bill had been introduced into the House of Commons by Mr. Locke, " to amend the constitution, practice, and procedure of the Court of the Island of Jersey," which Hill, among other provisions, provided for the substitution of a Court consist- ing of the Bailiff and two other salaried Judges. On the 13th of April, 1804, Mr. Waddington, one of Hi -ty's Under-Secretaries of State, informed the Lieutenant- i ior of the island that Her Majesty's Secretary, Sir George Grey, had felt himself obliged to assent to the second reading of Mr. Locke a Bill, and that he should not have done so had he been able to hold out to the House of Commons the hope that measures would be taken by the States for the improvement of the judicial system, and the better administration of justice in Jersey. Mr. Waddington added, that Mr. Locke consented to postpone the next step of the Bill to a time sufficiently distant to enable the States to give an assurance of their being in earnest in dealing with this subject; and if the States availe 1 themselves of that int.-rval to frame and submit such a Projet de Loi as was described in the I. i. u tenant-Governor's letter, that Sir George G rey would willingly use his influence to induce Mr. Locke not to press his Bill. Mr. Waddington s letter was, on the 16th of May, 1864, laid before the States of Jersey, who, on the 21st of May, 1864, for- warded to Sir George Grey a letter, wherein, among other things, they stated that they felt that they coull not discuss and pro- nounce upon any question or measure having reference to the VOL. I.] CASES IN THE PRIVY COUNCIL. 97 reform of the -judicial system and administration of justice with P. C. the untrammelled liberty of opinion, without which their delibera- 1866 tions and decisions as a representative and legislative assembly I N TH E would be fallacious and worthless, so long as the constitutional question now before the House of Commons, in connection with Mr. Locke's Bill, and which, as the States alleged, struck at the very root of the rights of the Assembly, and of the most cherished privileges of the people of Jersey, that of being legis- lated for by their own representatives in all matters of local and internal administration, remained in suspense, and that they, therefore, respectfully postponed for the present the consideration of the correspondence submitted to the States. They stated that they were not unduly attached to the established order of things, nor unmindful of, or indisposed to entertain and carry out the wishes of Her Majesty's Government, the manifesta- tions of public opinion, or the recommendations of the Koyal Commissioners. After the receipt of this representation Mr. Locke's Bill was withdrawn. On the 4th of August, 1864, the States of Jersey passed an Acte making provision for the office of a Juge $ Instruction, neces- sitated by the new criminal procedure law, which was to come into operation on the 1st of November following, which received the Eoyal sanction. On the 15th of December, 1864, the States of Jersey met for the purpose of taking into consideration two motions, the first being for " the substitution of paid judges for the present Jurat system," and the second, " for separating the judicial from the legislative functions of the Jurats." The States ultimately re- solved, by a majority of one, that the constituencies of the Island (the ratepayers in the several twelve parishes) should be consulted upon the abstract question, whether they were of opinion that it was desirable to substitute salaried Judges for the twelve Jurats of the Koyal Court, and fixed the 2nd of January following for col- lecting the votes of the ratepayers in all the parishes of the Island. The votes of the ratepayers of the Island, in accordance with this resolution of the States, were taken on the 2nd of January, VOL. I. 3 H 98 OAfflB IN THF. I'KIVV '| \< H, [L. R. 1865, an 1 th- result wa, that out of 2,470 ratepayers who roted, > ' 24290 voted against, an-1 1*0 for paid Judges. At a meeting of ITHK *e States on the 1'Jth -t' the same month, in consequence of M *" Jurats, and that a Commission might be appointed to examine the state of the finances of the Island with respect to certain alleged misappropriation of the revenue. The States, in their case in support of the Actes of the 14th and 29th of January, 1864, set forth the nature and constitution of the Royal Court, stating that it was composed of the Bailiff and twelve Jurats; that the Lailiff was president of the Court, anost of Jurat bo suspends! until tmch measures ah t deem necessary for sopwra- THBjKMKV t '" " l ' l kgiak 1 ^ 1 functions, nu-ht ll"t to I.,- L' Mil ted AT *> or sen lined, us tin- -im).!.- issue was wheth.-r, having legard to tin- inability of tin- i >rm tli.- duties ot' their ollin-, tli- AcN of tlu- States of tin- 1 Ith J'.Mli of .January, IM;|. ouirht not to be ccnlinn-l l.y H-r Majesty in Council, and new el.-ction- tlirected. That it could not I* j.utt-il that tin- States had authority to originate all laws that t may think n-tji; tin- lu<- alininist ration of jtistio- or >' \\is.- within tin- Island, ami that 1>\ tli.-ir"vlctitution of tin- Koyal Court as by law established, the Crown ouirht. in justice or on ground of expeilit-n.-y. to withhold tin- Royal assent to th.- tuo Actes referred to. That in practice; two different methods had been adopt. Jurats have desired to resign their office. In some instances the Jurats wishing to retire had made their ap> plications by p Mivssed immediately to Her Maj -ty in Council, and in oth.-rs to the States. In cases, however, where petitions had been directed immediately to Ht-r Majesty in Council, it had been usual, before granting an Order, to refer the application to the States, and the Orders in Council dated repp'-t-tiv.-ly lth of March, 1837, 21st of October, 1839, and 3rd of il, 1840, confirmed this statement. It was furth. r ur^i-d that the Royal Court, according t- Charter of King John, is to consist of tw< 1\.- Jurats, as expressed in the Charter " Imprimis constituit duodecim Coronatores Juratos ad flactia et Jura ad coronam epectantia autodienda ;" that in Arti<-lf iii. of the Charterit is provided " li ddbentdegi de Indigent* Insularum per Ministros Domini Eegis et Optimates Patrite, scilicet pott Mortem vnitts eorum, alter fide digrnus, vel olio casu legitimo, debet substitui." That the riirht of the jvople to elect the Jurats was i- |>utable, and an Order in Council of th- l.jth of July, 1813, clearly established who were entitled to vote in the elections, no VOL. L] CASES IN THE PRIVY COUNCIL. 101 law affecting a change in this respect having ever been made, whilst, on the contrary, as well by the various Charters since that of King John as by the laws and customs of the Island, the same number of Jurats had always been maintained; that it was true that in troublesome times the places of the Jurats had not immediately, on a vacancy occurring, been filled up, as during the civil war and on the return of King Charles the Second to the throne; but, as would be seen by their Letters Patent, both Oliver Cromwell and Charles the Second carefully desired to maintain the constitution of the Island with regard to the number of Jurats; and referring again to the Charter of King John, which provides for supplying the place of a Jurat dying or a vacancy occurring from some other legitimate cause, it was sub- mitted that ill health had always been considered as a legitimate cause for a Jurat to ask to resign his office, and it was upon similar grounds that Messrs. Ste. Croix and Nicolle sought to resign ; that the reasons given by them upon which their applications were grounded were not contested, and it would be harsh towards them if they were, under the circumstances and against their will, to have to continue in office. The States by their case further maintained, that they conceived that the question of the alteration of the constitution of the Island, urged by the opposing petition, was not then before the Committee, and proceeded to shew how the proposed alteration had been viewed by the people of Jersey, stating the Royal Commissions of 1846 and 1859 to inquire into the state of the Criminal, Civil, Municipal, and Ecclesiastical Laws of the Island, and submitted that the allegation in the report of the Commissioners appointed in ] 846, that the Eoyal Court neither possessed nor deserved the confidence of the people, was not founded on fact, for that very soon after that report had been published large public meetings of the inhabitants were held, and resolutions passed, entirely re- pudiating the conclusion at which the Commissioners had arrived, and solemnly protesting against any change by which the people should be deprived of the power of electing their own Judges ; they also stated that on the 13th of December, 1860, after the report of the Commissioners appointed in 1859, a proposition, or rather a aeries of resolutions, was lodged au Greffe, relative to the course to P. C. 1866 IN THE JuRATS - CASES IN TIM: ri:ivv P. c. be punned for the consideration of the n-eomm \*.,.: Commissioners, but con- one of such recommendations Ix THE involvtnl the completo annihilation .,f tli>- 1 loyal Court, and the VJr*Y C ^ ect ' n 8 f th er fundamental changes in the const it uti vn. Island, the States on that j .n-wnta- M ATTM or made ky tag states, that if Her Majesty should be pleased to Joum accept the resignations of the two Jurat*, but to direct that ti. places should nut be till* <1 ; such a course of proceeding would be indirect violation of the cmMitutim. ' 'irt as by law established, and that it would likewise in effect operate as a repeal of the law which, as contcnd.-d l>y tin- Stat.-s. directs that. ujKina vacancy occurrin::, a new election to the vacant office should be ordered by the frown; tin- J' tition.-rs Mibmitt. d and insisted, first, that the present const it utit.n of the ( 'oiirt in no wise difl- from its constitution in tin- y. ar 17:;i : >-rondly, that when, upon cause shewn. His then Majesty in Council was pleased to remove, and discharge from their oflice five of the Jurats of the Koyal Court, without ordering any Irish elections in their places, as appeared by alett'-r dated the llth of April. 17i!l, from the Lords of th-- 1'rivy Council to the Bailiff and Jurats of the Koyal Court , < 1 i i < -t i n ir t hem not to proceed to any election of Jurats to replace the five who had thus been removed, until His Majesty's pleasure was made known, which was afterwards expressed by an Order in Council of the 1'th of July, 1735, for the election of " three new Jurats only for the present;" which continued until an Order in Council of the i:7th of December, 1739, directed the Royal Court to proceed to the election of six new/wra^, U-ini: th.- number of tin- then existing vacancies, and further direct in:: that, as other vacancies should happen, the Court should proceed to the election of new Jurats to supply th. ir places; thirdly, the Petitioners submitted that, n if it were the fact that on the death of a Jurat the custom had been for the Court to order a new (lection, y.-t it did not fol- low that there was any law which prescript iv. ly direct, d that upon a vacancy occurring in the office of Jurat, except by death, a new election should be forthwith ordered by the Court, there being, as the Petitioners in.-ist- -d. nothing in the Order in Council of 1739 w hi. h was intended to have or had any force or effect to restrain Her Majesty in Council from suspending at any time the election of new Jurats, should she see just cause for so doing. Fourthly, that by the two Ades of the States sought to be confirmed, Her Majesty in VOL. I.] CASES IN THE PEIVY COUNCIL. 105 Council was prayed not only to permit the resignations of the two Jurats, but also to appoint fresh elections ; whereas the Petitioners submitted that no Order for fresh elections could be required if, ;is .irfsumed by the States, a general law already existed providing in such cases for fresh elections to be ordered by the Royal Court itself. That if it was contended, that it was not competent for the Crown, except on motion of the States, to accept the resignations in question, and at the same time to direct that, until further Order, no election should take place to supply the vacancies thereby caused; the Petitioners' answer was, that on several occasions the prerogative of the Sovereign in Council to legislate for the Island, motu proprio, had been recognised and acted upon ; and the Petitioners submitted, that no limitation or restriction of Her Majesty's prerogative of legislation has since taken place, and, in particular, they denied that any such limitation was intended or effected by the Order in Council of the 28th of March, 1771, whereby His .then Majesty was pleased to give effect to certain Ordinances, since called " The Code of 1771," the scope of which Order, as the Petitioners believed, was merely to take away from the Royal Court a power of making Ordinances, previously assumed by that body, independently of the States. They admitted, how- ever, that this power of legislation, ex motu proprio, might be subject to some limitation, as, for instance, where taxation of the inhabitants of the Island is involved ; but that no such ground of limitation existed in the present case. That should it appear to the Lords of the Committee that a fresh election must necessarily follow the acceptance of the resignation of a Jurat, the Petitioners would contend that the acceptance of such resignation was matter of grace and not of right ; and would not merely deny that by such non-acceptance any wrong would be inflicted, as alleged by the States of Jersey, but would also urge that no inconvenience to the public service which might possibly therefrom arise could be tantamount to the injury which would be inflicted on the Petitioners and all litigants in Jersey, if, by the acceptance of the resignations, and by the consequent occurrence of fresh elections, the delay of the reconstitution of the Royal Court of Jersey were further and indefinitely postponed; P. 0. 1866 J N ^g JCRATS. . \-i B IN liii: i'i:l\ v 001 v U- Pi(x and they i|wd their belief . under existing fir. um- tfcn^o- the Royal Court should be order* 1 fttortfopa of Jurat*, such Order won 11 Ky a considerable port L H\l ?or the ii tn of Jeney be taken as evidence of tin approval I y II. r M..j.-t\ in i ..nly of the runt inuaiiro of the pro.- -i. -in. I'ut al< 'i tin- s of Jenty iu relation to the present matter. They insisted that the whole course adopted by the States with regard to the repeated repre- sentations of Her Majesty's Government, sin-wed a determine refuse, as long as Dossil!, tin- origination !' any measure cal lated to remove the objections which are justly ent< -rtaim -1 airaiiM the continuance of the present judicial system. That the measures which the States had adopted as regarded criminal and civil pro- cedure, might or might not be good in themselves, 1-ut in the words of the Commissioners of 1859, " the Island has so < tely outgrown its judicature, that any reforms which shall leave the duties of the Superior Gmrt in the hands of a numerous body without professional education, whose attendance is precarious, and for whose nomination no one is responsible to public opinion, will be absolutely nugatory." With regard to the allegations contained in the representation of tin 1 -.the Jersey Reform Committee, as to the misappro- priation of the revenues of the I -Ian 1, and in particular of the har- bour dues, the Petitioners stated that they did not then seek to urge the request contained in tin -ir representation for the appointment of a Commissioner to examine the state of the finances of the Island, nor to nter minutely into any complaints on the general mal- administration of the revenues, although believing that, on a proper occasion, they could shew that great defects existed in their admi- nistration, owing very much to the circumstance that under the present constitution of the Royal Court, no independent tribunal existed in the Island which could be applied to successfully with the object of remedying such defects ; that besides being members, with the Governor and Bailiff, of the Assembly which controls the Impot (the chief source of the Island revenues), the Jurats, as members of the States, and, indeed, most frequently as members of particular standing Committees of that body, to whom the details of administration of the finances are entrusted, had a very VOL. L] CASES IN THE PRIVY COUNCIL. 107 direct share in decisions which in their judicial capacity they might P. c. afterwards be called upon to review ; nor did the Petitioners at i860 present bring forward this part of the subject of their represen- r^Trm: tation, except in illustration of the evils of the present system, MAT T ER being desirous rather of urging the former part of their petition, JCBATS. namely, that relating to the non-acceptance of the resignations of the two Jurats ; and it was prayed that the confirmation of the Actes of the States of the 14th and 29th of January, 1864, and the acceptance of the resignations of Philipe de Sfe. Croix and Philips Winter Nicolle, Esquires, might not be recommended to Her Majesty in Council ; or, if Her Majesty should be advised to accept such resignations, then that the confirmation of so much of the said two Actes of the States as related to the ordering of fresh elections in the room of the two resigning Jurats should not be recom- mended, but that it be recommended that during Her Majesty's pleasure no such elections to the two vacant places should take place. No case was lodged by the Jersey Keform Committee. Mr. Eolt, Q.C., Mr. Bovill, Q.G., and Mr. W. W. MacJceson, for the States of Jersey : According to the law and* constitution of the Island, there must be the full number of twelve Jurats. The office is for life, but where there are sufficient reasons, as in the present instance, for Jurats tendering their resignations, it is expedient that such resig- nations should be accepted by the Crown. In the case of death of a Jurat, it is not in dispute that the Koyal Court, consisting of the Bailiff and Jurats, can issue their warrant to fill up the vacancy, Falle,p. 146 [E l.by Durett, 1837], without any sanction of the Crown. [LORD CHELMSFORD : If the Queen accepts the resignation of a Jurat, can the States proceed to a new election immediately?] Yes ; the acceptance of such resignation involves a new election, but we do not dispute the power of the Crown to accept or refuse such resignation ; that is within the Charter of King John, but we contend, on behalf of the States, that the resignation cannot be completed without the consent of both the legislative bodies, the Crown and the States. The Crown cannot legislate so as to affect internally the affairs of the inhabitants of the Island, except with in* TASKS IN THI: i : i\v mi \< H. [L. B. r. c. ilto consent of the States, In re ike 8tate$ of J erst y (1). 1 1866 doetrino was continue, I with respect t<> tin- I-lan-1 of Guernsey, re the Slates of Guernsey CJi. \\hi-n- it \\a- In -Id, that an ancient MATT or offi^ the Conirole de la Heine, con Id < >n I v be abolished by an Order Till' .II !.-! \ MX. in Conn. -il, uith the consent of the States of that Isla; The Islands of Jersey and Guernsey are I/ord Coke, in Calvin s Case (3), 10 be no parcel of the realm of England, 4 Inst., j>. I'M!, and they aregoverm d l>y their own laws. As to the rights Islanders to the benefit of tin- ( iiait. r of King JoAn, that ( 'hart.-r must bo taken nt a-, tin- foun iati<-n, bat the confirmation of rights which previously existed. The original : is lost, 1'iit the substance of it is to be found in an inquest taken in the i. iirn . .1' his son,.He. III.,FaUe, p. 222, after Normandy was a! This inquest recites and confirms the Charter. l'y the lir>t clause t\\.'i\e Jurats are appointed, whose offices are now in quej- 1 "I. Consiituit Duodecim Coronatores Juratos, ad placiia et Jura ad Coronam spectantia custodienda" Their further dutk-s are tin n defined in the second clause: ** Consiituit etiam et coneessit pro securitate Insularvm, quod Ballivus de eetero per visum dictorum Coronatorum poterit placitare absque Brevi de Nova Disseisind fadd infra annum, de Morte Antecessoris infra annum, de Dote sim< infra annum, de Feodo invadiato semper, et Incunibreio Marttagii? &c. The third clause is most essential : - Ji debent eligi d- tenis Insularum, per Ministros Domini Regis et Optimates Patrue ; scilicet post mortem uniua eorum, alter Jide dignus, vel olio casu legi- tinio,debet substitui" Now, the words "debet substitui" in tin- ( harter, like our Great Charter, are a positive enactment, pro- vi linu r in the event of death, "vel olio casu legUimo" one shall be substituted. The Crown cannot at its pleasure suspend tin- operation of the Charter. It may inquire into the cause of the -rnati<>n. li i' at cause, has been shewn. Age and in- firmity is a legitimate t l'h- < harter of John is confirmed 1>\ the Charter of Edu\ HI. in the largest terms. The Crown confirms to the Island Umnia privUegia, libertates, /// Tne ^p. of tne Jentf y Vom., 1846, p. v., alao * says that l.y tin- Norman law the 1 )uke of Normandy had supreme legislative power, an-1 tliat the- form that this authority now assumes is that of Orders of Her Majesty in Council, and t has been the course for centuries. The case of The Shite* of Jersey, as the report of their Lordships shews (1), does if mine that II. -r Maj.-sty c<>uM not, consistently with the conHtitu- tinnal rights of tin- Islanol. 1'iri slate by Orders in ( only that in that particular instance it was expedient to revoke the particular < >rlt rs complained of. First, then, with respect to the Jurats. The States rely upoi Charter of King John, but Le Quesne, in his Constitutional Hi- of Jersey, p. 63, doubts \\hth.r there ever was such a Charter. It is not d.-. rill,- 1 as a Charter in the inquest of his son Hen. 111.: Le Quesne, p. 60. [LORD CHELMSFOHD : How 1 did the Kings of England retain the title of Duke of A fy?] King John gave it up. [L<>i:i < 'HKLMSFORD: There is a confir- mation of the fact of there being a Charter < John in the Charter of Elizabeth, \\hich speaks of privileges, &c. f granted by former Kings of England and Dukes of Normandy.] It was not a Charter under the Great Seal, but a mere Ordinance, and had not the effect of conferring any legislative p<- All it did was to give the Coroner a standing jury of twelve to determine certain cases. It did not confer the power the States contend the Jurats have. There can, however, be no question that Her Majesty, even if the resignations are accepted, may withhold the sanction for filling the vacancies, and that during plea- [The LORD CHA\< KNUR: Your argument is, that the d has undoubted legislative authority in all matters, and, therefore, must have with respect to the Jurats.] Yes. "We contend that nr Lordships ought to recommend that no election shall take place during II. -r Maj.->ty's pleasv [The LORD CM \ -kink that question is properly (1) Moore's P. C. Case* VOL. I.] CASES IN THE PEIVY COUNCIL. HI before us, but that is not necessarily involved in the question of P. C. general legislation throughout the Island. If it were to be 1866 shewn that Her Majesty had an absolute power of legislating in the Island in the same way as the Queen, Lords and Commons can legislate in England, it would be idle to argue whether she JURATS. could make a particular disposition with respect to Jurats, because Her Majesty can then do anything. But the question before us is not, whether there is a general power of legislating on all subjects whatever, and uncontrolled on the part of Her Majesty in Council, but whether there was a power in Her Majesty in Council to interfere in this particular instance of regulating the election of Jurats. Your argument must be confined to the expediency of the Crown exercising the undoubted power of accepting or refusing these resignations, and so impliedly sanctioning the elections, if accepted, of new Jurats.] Supposing the Crown should think fit to accept the resignation, still there is the power to direct that no elections should take place to fill the vacancies. [The LORD CHANCELLOR : The ques- tion really is the expediency of exercising that power.] Serious dissatisfaction with the present constitution of the Royal Court exists in the Island. The union of legislative with judicial functions in the persons of the Jurats of the Koyal Court and the whole constitution of that Court have been repeatedly condemned by competent and impartial authorities. The Com- missioners appointed in 1846 for the consideration of the Criminal Law, and in 1859 for inquiring into the Civil, Muni- cipal, and Ecclesiastical Laws of the Island alike condemn the constitution of that Court. With respect to the Jurats, they are elected not by the optimates patrise and ministri domini regis, but by the suffrage of the voters in the Island. Though they act as Judges and legislators they are not lawyers, many are tradesmen, and the only qualification for the office is that they must possess forty quarters of wheat per annum. They are not bound to attend to their judicial or legislative duties, and attend only when it is convenient for themselves ; and the Commissioners of 1846, in their Report, p. xlii., express their opinion that " a Court so constituted is unfit, from want of legal knowledge, to llj OASES IN I Y OOUN' administer the law." [LORD CHELMBFOBD : It is right on behalf is.;.-, of the Jurats to say that, although the con-titut '"urt I JJ^ B is condemned, nnd alth my of the Jurats may hare 1 MATTKBOF elated for party motive-, tin- CommiasiowrH all sa\ H no Jriurs. imputation at all on th- -ir integrity.) That i- - I860 -tate<, that tin- practice of th.- Royal Court i-. ii, ahly dilatory ami vexatious, tin- . :at- 1- ing powerless, the actual .Indies numerous, tht-ir att ndance :,d their appointment \\ithout r.-i. -rence t> judicial (jualilicatious in ti selves. The natun- of surh a Court is . \tr.-j MI ]y inconv.-ni.-nt n\\'\ ol.j.-.-tiunal.lc. and it is absolutely necessary that a reform -hould at once take place, which would IM- intcrf -ivd with if tin- vacancies in i|U.'>ti.n an- lilh-d uji and t-nd to ]H-rjM-tiiat.- the ( 'curt. | Ix)RD CHKIM^KIKD: As IOIIL' as the Koyal Court exists, ought it no be efficient to perform its functions ?] An cl-ctj..n in the pr< - circumstances would not add to its -llici, n.-y, and no legislath- action in the desired direction can be expected ln,m the States, if their application for new .lections be complied with. The LORD CHANCELLOR interposed, and said, that the opinion their Lordships had formed, and the advice they would huuiMy tender to H.T Majesty \\a<, that though the Committee were stroi of opinion that a complete change in the constitution of the I! Court was absolutely necessary for the welfare of the Isl as neither the refusal of Her Majesty in the exercise of her undoubted right to accept the resignations, nor the suspension of any new election of Jurats to supply the place of those re- g, would have any immediate effect in improving the present constitution of the Eoyal Court; and as Her Majesty would ainly desire that, until the constitution of the Court is dually reformed by legislative interference, no course should be taken which miirht have a tendency to render it less efficient than it now is: therefore the Committee would humbly ai Her Maj >-ty to accept the resignations, and to authorize new elections in the place of those r -inning. This, his Lord-hip added, is the unanimous opinion of their Lordships to whom the matter has been referred. As is customary in references of this nature no judgment VOL. I] CASES IN THE PEIVY COUNCIL. H y was delivered. The following report of the Lords of the Com- p - C. 1 Q inittee was made on the Petitions : ^^, Her Majesty having been pleased, by Her General Order to IN THE J J J MATTER OF refer unto this Committee the several Acts of the States of the THE JEBSEY Island of Jersey, and other documents hereinafter described, ' relative to the retirement of M. Philips de Ste. Croix and M. Philips Winter Nicolle, two of the Jurats of the Koyal Court of the said Island, viz. : Act of States, 14th of January, 1864 ; Act of States, 29th of January, 1864 ; Petition of the Landed Proprietors, Merchants, &c., of the Island ; Act of States, 12th of January, 1865 ; Petition of the States of the Island, 14th January, 1865 ; Representation of the States, 7th of April, 1864 ; Petition of Com- mittee for Reform in Jersey, 1st of October, 1864 ; Representation of Committee of Reform, 24th of June, 1865. The Lords of the Committee, in obedience to your Majesty's said Order of Reference, have this day (18th of January, 1866) taken into consideration the said Acts and the said Representations and Petitions; and having heard Counsel on behalf of the States, and of the Peti- tioners against the confirmation of the Acts of the States of the 14th and 29th January, 1864, their Lordships do agree humbly to report as their opinion to your Majesty that, although they are strongly of opinion that a complete change in the constitution of the Royal Court is absolutely necessary for the welfare of the Island, yet, as neither the refusal by your Majesty, in exercise of your undoubted right to accept the resignation, nor the suspension of any new election of Jurats to supply the place of those resigning, would have an immediate effect in improving the present constitution of the Court, and as your Majesty would certainly desire that, until the constitution of the Court has been effectually improved by legislative interference, no course should be taken which might have a tendency to render it less efficient than it now is, their Lordships, therefore, humbly advise that your Majesty may be graciously pleased to permit the said Philipe de St. Croix. Esq., and the said Philipe Winter Nicofle, Esq., to resign their offices of Jurats, and to allow them to continue during their lives all those privileges and distinctions which Jurats do now, or may hereafter, enjoy, as far as your VOL. I. 3 I ill OASES IN Ti Y OOUNr p. c. Majesty may be enal>ll in law. And the Lords of tho Committee i--'-; are further of opinion, that your Majesty should author!/- that in TUB t\v elections of Jurats should be made acconlin n 1 JKnY constitution ..!' the Island of Jersey to .-ujiji! :AT8. The Order in Counci i I.ited tin !!!! 'iary, I860, after s.-ttin^ forth the Commit te'g Report, prooecdetl in these terms: "Her Majesty having taken the said \i j">rt into consideration, was pleased by and with the advice of H Council, to approve of \\hat is thcn-in proposed, and doth ae, inirly | Tiuit and allow the I ' >'<>i < and J'litiipe .Winter Nicdfle to resign their said offices of Jurats o ; allov. tln-ni the con- tinuanco, duriiiLT their lives, of all thos jrivi leges and -ii'tinn' which Jurats do no\\, or may hen alter, enjoy, so far as Her Majesty doth hereby order; that new elections be made of Jurats accord to th- la\\s and constitution of the said Island of Ji rtj. to sujiply the said vn< and Her Majesty doth further onl-r. and i hereby ordered, that the said Acts (copies of which are lierennto annexed), together with this Order, bo entered upon tl the Island of Jersey, and obs ordingly. ^ tenant-; >r or Commander-in- 'hid', the Bui lift' and Jurats, and all others Jler Majesty's officers for the time l.-inir in the Island, and all other persons whom it may concern, are to take notice and govern themselves accordii Solicitors for the States: Jones, Blaxland, & Jones. Solicitors for the Petitioners : Hancock, Saunders, & Hawksford. VOL. I.] CASES IN THE PRIVY COUNCIL. 115 BAKTOLOMEO CASSANOVA AND OTHEBS . APPELLANTS; J.c.* AND; 1866. THE QUEEN AND JOHN SHAW EESPONDENTS. Feb. 12. THE "RICAEDO SCHMIDT." ON APPEAL FROM THE VICE-ADMIRALTY COURT AT SIERRA LEONE. Vice-Admiralty Court Act Appeal to Privy Council Time allowed for Discretion in admitting. Sec. 23 of the 26 & 27 Viet. c. 24, which limits the time for appealing from the Vice- Admiralty Courts abroad to six months, vests, by the same section a discretion in the Judicial Committee to admit an appeal notwith- standing six months have elapsed. Circumstances shewing that there was no wilful laches in not lodging petition of appeal in the Registry of the High Court of Admiralty within the prescribed time, and that the delay arose from the parties waiting a decision on a pending appeal, which involved a similar question, held sufficient for the exercise of the discretion vested in the Judicial Committee, to admit an appeal under that section, upon payment of the costs of the application, and giving security for further costs. BY the Vice-Admiralty Court Act, 26 & 27 Viet. c. 24, s. 23, it is enacted that " the time for appealing from any decree or order of a Vice-Admiralty Court shall, notwithstanding any existing enactment to the contrary, be limited to six months froin the date of the decree or order appealed from ; and no appeal shall be allowed where the petition of appeal to Her Majesty shall not have been lodged in the Kegistry of the High Court of Admiralty and of appeals within that time, unless Her Majesty in Council shall, on the report and recommendation of the Judicial Committee of the Privy Council, be pleased to allow the appeal to be prose- cuted, notwithstanding the petition of appeal has not been lodged within the time prescribed." The ship Eicardo Schmidt, with a cargo of ground nuts and palm * Present : THE LORD JUSTICE KNIGHT BRUCE, THE LORD JUSTICE TURNER, SIB JAMES W. CO&VILE, and SIR EDWARD VAUQHAN WILLIAMS. 3 12 1 1 , ; CASES 1 Y COUN< [L. B. J.C. uil, iiinliT the comma n 1 <>; il>< AJ.J. Hunt, was 8cizt-ort to Her Majesty that the Appellants might be all- prosecute their appeal, and that the proceedings already t.. for prosecuting the appeal whereby the process had been warded from Sierra Leone, might be ratified. This motion was supported by an affidavit of the Petitioner's Proctor, setting forth The motion w;:< opposed by the Crc Mr. V. Lushingion, and Mr. Bayford, in support of the motion. The delay in lodging the petition of appeal arose from the VOL. I.] CASES IN THE PRIVY COUNCIL. 117 Petitioners waiting for the decision of this Tribunal in the case of J. C. the Laura, similarly circumstanced. The time limited by the 1866 Statute, 26 & 27 Viet. c. 24, s. 23, \vhich is six months for pro- CASSANOVA secuting appeals from Vice-Admiralty Courts abroad, including _. v - Sierra Leone, was overlooked, but the usual steps for prosecuting the appeal have been taken within twelve months, the period pre- < KICARDO scribed by the 5 Geo. IV., c. 1 13, the Slave Trade Abolition Act, ScHMIDT -" under which the proceedings against the Ricardo Schmidt were had, and which time is still allowed for prosecuting appeals from the High Court of Admiralty of England, as well as from some of the Vice- Admiralty Courts abroad. Upon the merits we are entitled to indulgence ; the owners are Foreigners, and the strict practice \v;is not known at Sierra Leone. The fact of the Court releasing the vessel without awarding costs and damages involves an im- portant question of law. We have sustained damages between 3,000 and 4,000. The Queens Advocate (Sir E. Phittimore, Q.C.), and Dr. Swabey, for the Respondents, contra. No doubt there is a discretion vested in the Judicial Com- mittee by the 23rd section of the Statute, 26 & 27 Viet. c. 24, to re- commend the allowance of an appeal, otherwise shut out, for non- compliance with that section, which requires the petition of appeal to be lodged in the Registry within six months from the date of the decree, but we submit that the section must be construed to mean " adequate " grounds. Here there does not appear to bo any particular question of laAv raised to justify the indulgence asked for. The only ground accounting for the delay is the waiting till the decision of this Court in the Laura ; that alone, we submit, is not sufficient. THE LORD JUSTICE KNIGHT BRUCE : No ground really exists to entitle the Petitioners to the exer- cise of the discretion vested in their Lordships by the Statute, 26 & 27 Viet. c. 24, s. 23, to admit the appeal, notwithstanding six months have elapsed, except, that the Petitioners, whom we believe * intended to appeal, did not lodge their petition of appeal in the Registry until a similar case, the Laura, which was then before their 118 J. C. i- THE \BUO - CASES IN THE PBIVY COUNCIL. Lordships, had been decided. As, however, there was a bond fide intention to aj>;>- .d. their Lordships think, in ; i instances, that t)i< appeal ought to be admitted and prosecuted upon pay- ment of costs of the present application, and giving * costs to the amount of 300. The proceedings t hat have already been taken for prosecuting the appeal will.be ratified. Proctors for the Appellant < : Eothery & Co. Proctor for the Respondents : F. II. Dyke, ller Maj- Procurator-General. J.C.* 1866 Feb. - March 17. TROTMANS I 'AT! AT. Letters Patent Pittongation of term Patentee not the Manufacturer Licenses Profits Remuneration Accounts. To entitle a Patentee to a prolongation of the term of Letters Patent, he must satisfactorily establish the amount of bis profits. A Patentee did not manufacture or sell the patented article (ship anchors), but granted licenses to Ironsmiths to manufacture, from whom be received royalties. On an application by him for an extension of the term of the Letters Patent on the ground of inadequate remuneration, the accounts produced of his own expenditure in carrying on the Patent being unsatis- factory, and no accounts given of the profits derived by the Licensees, a prolongation, of the Letters Patent was refused, first, as the Patentee's accounts were unsatisfactory, and secondly, from the Patentee having so dealt with his patent rights as to deprive him of the power of shewing the amount of profit derived from the working of the patent. Licensees stand, with respect to the profits, in the same position as an Assignee of the Patentee. A HIS was a petition by the Patentee, Trotman, for a prolongation of the term of Letters Patent, granted to him in April, 1852, for his invention of " Improvements in Anchors." It appeared from the petition, that Letters Patent had been granted to one Porter in August, 1838, for improvements in anchors, but which Patent had been worked by his Assignee, Honiball. That the Petitioner's invention and improvements which were applicable * Present: LORD CHELMSFORD, SIB JAMES W. COLVILE, and SIB EDWARD VAUGHAX -WILLIAMS. YOL. I] CASES IN THE PRIVY COUNCIL. 119 to Porter's anchors consisted, " first, of forming or fixing the ^>alm J. C. intermediately of the breadth of the arm ; secondly, in forming the 1866 horn wider than the arm ; and, thirdly, in forming or affixing the j n re palm of Porters at the back of the arm," and it was alleged, that by these improvements an anchor made in accordance with the Petitioner's invention was ensured to bite the ground immediately, without a possibility of the unopened fluke dragging along, as was the case sometimes with Porters anchor, when the fluke did not open out by the action of the horn, and that in the improved anchor the cable was less likely to foul the horn in consequence of its peculiar formation, and by reason of the angles which the faces of the palm made to the faces of the arms, much greater holding power was obtained than in Porters, or any other existing anchor, for which invention Letters Patent had been granted to the Petitioner for England on the 20th of April, 1852, and for Scotland and Ireland on subsequent dates. That shortly afterward the grant of the Letters Patent, trials were made under the Admiralty superintendence, of the relative value of anchors, and the result of the trials proved the Petitioner's anchor to possess superior advantages over the other anchors tested ; but that, although exten- sively employed by the Merchant Marine, yet, with the exception of Her Majesty's Royal Yacht, " The Victoria and Albert," the anchor was not employed by the Royal Navy, notwithstanding it hud been recommended by a Committee of the House of Commons bitting upon that subject. The Petitioner further stated, that from the outset of his endea- vours to bring his anchor before the public he had met with great difficulties, both from the peculiar nature of the trade of an Anchorsmith and other causes, and that the paucity of skilled labour among that trade had limited the production of his anchors, although the number of licenses he had granted to Anchorsmiths, at a certain royalty, had steadily increased. That not being a maker or dealer in anchors, he had derived no benefit from the manufacture or sale thereof, and no advantage, except in the .way of royalties, and having no trade or goodwill in any trade for the manufacture of anchors, he could not receive any remuneration from his invention after the expiration of the Letters Patent. That he had expended large sums of money in connection OASES IN THE ! \\nh his improvements and in sup HUT the manufacture of the anchor by his Licensees, and in endeavouring to make his inv.ntin known, appreciated, and ns< d i>y tin- pul>lic; and that the royalties received and to be ree< > t ho Licensees, w >u 1 afford a remuneration or re \uird adequate to the great labours \\hieh he had sustained, or commensurate with the I* nctits which the invention had conferred on the public, an* 1 lie prayed for au extension of tin- Kn-li-h Patent for fourt< n years. There was no caveat entered or opposition. 1 nre was given she \\iiiLT that tin- Pat.-nt was a most 11- one. ami extensively employed in tlie 3I*-rcluint Marine, though not adopted in tin- Ifoyul Navy. From the account.- ; 1 1'vhim it appeared that the Lin n.s>-< s had paid the Petitioner tor roya the sum of 15,000. AinoiiLr tin- it'-ms ot't: liture itin:r and o\rrlo<>kin^ the Licensees' works \\hil*- manufacturing the anchors dnrinir the fourteen years of the i 'atent Mr. Webster, Q.C., and ]\[r. Henry James, for the Petitioner: This case materially differs from other applications for extension of the term of Letters Pat 1 1 1 . 1 1 -re the Inventor is not the Manufac- turer of the patent article, nor did he sell the same. He has granted licenses to Ironsmiths to manufacture his anchors on their own account upon a given royalty, and the royalties received by him have not remunerated him for what is confessedly a most useful Patent. [LORD CHELMSFORD : As the Patentee has adopted that mode of working the Patent, if not snfiii-icntly remunerated, is he not bound by the conse<|u n<-< ? The accounts are most unsatiV tory. The charge of 500 a-year for personally superintending the Licensees' manufactures is unheard of. There ought to have been a return of the profits of the Licensees, who are in the same position as an assignee of the Patentee.] From the nature of the case, that is impossible. It is similar to VOL. I.] CASES IN THE PRIYY COUNCIL. 121 a Patent for making bread, where licenses have been granted to J. 0. Bakers. How could you ascertain the Bakers' profits ? There is ISGG I^VV no means of ascertaining the Licensees' profits or loss in this j n re instance. In Perkins 1 Pat. (1), a similar charge for personal super- P^ENT S intendence of the Patent was allowed. Mr. Hannen, for the Crown. Such an application as the present is not a matter of course. The Patentee must, in addition to the public utility of the inven- tion, shew, first, that he has not been adequately remunerated, and, secondly, that he has pushed on the Patent so as to obtain that ob- ject, which in this case he has not done, as he only granted licenses to manufacturers. The accounts are unsatisfactory. Among the items the deduction he makes from the profits for personal expenses for visiting and superintending the Licensees' establishments, amounting to 4,900, cannot be allowed. Again, no accounts havo been filed by the Licensees, who are in the same position as Assignees of the Patentee. It is impossible to ascertain from the accounts filed by the Petitioner what have been the profits of the Patent. The consideration of the application was reserved. Their Lord- ISGG ships' judgment was now delivered by March 17. LORD CHELMSFORD: This is an application for the extension of the term of a Patent for " Improvements in Anchors." The Patent in question was taken out by the Petitioner shortly before the expiration of a Patent which had been granted to a Mr. Porter for " Improvements in Anchors," and which Patent had been worked by Porters Assignee, Mr. Honiball, the uncle of the Pe- titioner, who assisted him in his business. It was to this anchor of Porters that the Petitioner's improvements were applied. Porters anchor had considerably improved upon the anchor in common use, but upon a trial for infringement of his Patent it was found that the principle of his improvement had been anticipated by a person of the name of Logan. That principle was, that instead of the arms being fixed as in an ordinary anchor, they moved upon axes, and (1) 2 Webs. Pat. Cases, 17. 122 CASES IN THE PRIVY COUNCIL. [L. B. J. c. tho flukes were set u|n them at an angle. It appear* i - ;',- ami \\hfn the anchor was in ; tluke m-' MAX'B U j Xjn t he g hank it was more out of the way, and 1<^ to be caught l>y tli' cable whil- the vessel was swin itself was capable of more compact stowage, taking this anchor of Porters as thus described, axl ' provements fur which he obtained his pat- ego, according to his specification, consisted in making the horn or to. cantinir the anchor and opening tho flukes wider than tin- arm. I'M affixing the jialm of Porters anchor interim 1th of the arms, and at tin- back of tho arm instead of in front (it not being new to place the palm at the back of the arm of ordinary anchors), and in making tho angles which the palms n the shank, and those ma-lo by the arms, to bo different. These variations from Porters anchor, however slight and insignificant they may seem, were undoubtedly improvements upon it; and the IVtitioner, without the exercise of any great inventive in- genuity, perfected an anchor which has prov.-d hiirhly efficient and useful. This anchor has been very extensively employed by cantilo marine, and lias invariably been found upon trial to possess holding powers superior to all other anchors. For some unex- plained reason it has not been introduced into the Nav} . In 1853, an Anchor Committee appointed by the Admiralty to detern the relative merits of different descriptions of anchors, after sub- mitting them respectively to various tests, reported most favourably of Trotmans anchor. The Report stated that this anchor " proved to have greater holding powers than Porters" and that when it was subjected " to trials with anchors on the Admiralty plan of the respective weights of thirty, thirty-five, and forty cwt. (stock included), no doubt was left upon the minds of the committee that in regard to holding power with a steady equable strain, Trotmans anchors were fully equal to Admiralty anchors of at least twenty-four per cent, greater weight." It was proved in evidence, that after this report Porter's anchors went entirely out of use, and that the demand was for Trotmans anchors instead of them. Although, therefore, the merit of the VOL. I] CASES IN THE PRIVY COUNCIL. 123 improved anchor was originally due to Porter (or to Logan, who J. C. was before him in the field), the improvements introduced by the i860 Petitioner have certainly tended to make the anchor practically in re more useful, and he has, therefore, upon this ground a claim to consideration in his present application. But admitting the merit of the Petitioner, the question to be next considered is the sufficiency of his remuneration. There is this peculiarity in his case, that instead of becoming himself a manufacturer of his patented anchors, he has preferred to grant licenses to Ironsmiths to manufacture them on their own account, paying him a royalty. In all prior applications for the extension of the term of a Patent, the Patentee has himself made and sold the patented article, either exclusively or in common with other persons to whom he has granted licenses, or he has assigned away his Patent altogether, so as to substitute his Assignee for himself in all questions respecting his Patent rights. In these cases there is obviously no difficulty in ascertaining the profit which has been derived from the Patent. It is supposed, however, that the unusual manner of working the Patent in this case renders the application of a different principle necessary. This, however, is clearly a misapprehension. The question in all cases of this description is not what the Patentee has received, but what has been made, or by proper judgment and application might have been made, by the Patent. The Petitioner might, if he pleased, have become the Manufacturer of his patented anchor. If he had, it would then have been necessary to ascertain what part of the profits of the manufacturing business ought to be ascribed to the Patent. In arriving at this result the proper course would have been to deduct the original cost of the anchor, the ordinary amount of Manufacturer's profits in the particular trade, and probably an allowance for the time and labour of management, and the re- mainder would then have been the profit due to the Patent. But the Petitioner was unwilling to incur a large expenditure in erecting the proper plant for carrying on the manufacture, and preferred to leave the expense of the new machinery necessary for forging his anchors to the Licensees, being content to receive a royalty as his share of the profits of the Patent business. Under these circumstances, if this royalty alone were to be regarded, it is >1 CASES IN THE 1 ! i: j. c. that \\e should not arrive at a knowledge of tin* whole I860 amnuii' i l>\ the Pat. nt, I nit question would be J^g changed from \\hni the patent had produced to what it BOTMAX'S to ( | lt> patentee. It was necessary, therefore, for tin? favourable 1 V ' 1 N . . consideration <>f the Petition that tin- Patentee should bring into account tin- profits obtain* ! l.y tlio License- I' tent. He has however not furnish* 1 any infonnation upon ' iut; for although he has proved that tin- Licensees paM him royalties amounting to 15,000, being five per cent, upon 300,000, the gross amount of thoir business, he has not onal their Lordships to ascertain how much of this largo sum is appli- cable to the cost of the manufacture, and what per-centage of it belongs to the Patent monopoly. In the course of tl. for the Petitioner, a case was supposed of a person patentin: invention of a particular kind of bread, and granting licenses for the sale of it to a very large numlx-r of IJakers, and it was a>i whether in such a case it would be necessary for him, in apph for a prolongation of the term of his Patent, to prove the amount of the profits made by all the Licensees in respect of the pato: article. The answer is, that he would undoubtedly be bouii' furnish this proof. It must always be borne in mind that extension of the term of a Patent is matter of favour, not of right ; and that it is essential to the favourable consideration of Patentee's application, that ho should distinctly prove how in the public have had to pay, or, in other words, how much has 1 received on account of the Patent. If, therefore, the Patentee has dealt with his Patent rights in such a manner that when the i arrives for asking for a renewal of his term, he has put it out of his power to give the requisite evidence upon which his applica- tion must to a gr it be founded, his petition must fail. 'ause it wants the proof which is essential to its success. This is the case with the present Petitioner. He has left in complete obscurity the actual amount of profits realix- d l.y the Patent, which may, for anything that appears, be more considerable than in any former case in which a Patent has been extended. The uncertainty in which the Petitioner has left this part of his case would be fatal to his application, even if he were entitled to all the deductions for his own share of the profits which he has VOL. I] CASES IN THE PRIVY COUNCIL. 125 claimed in his accounts. But their Lordships cannot forbear J. 0. expressing their dissatisfaction with the manner in which these ISGG accounts have been prepared. The Petitioner was in the situation i n re of a person receiving a rent or royalty, having nothing whatever to do with the manufacture of the article from which this rent or royalty was derived. He had a right under the licenses (a specimen of which has been furnished) to visit the works of the Licensees at any time, "to view and inspect the method there used and employed in manufacturing anchors, and the quantities and values thereof." This power was reserved to enable him to ascertain, from time to time, the nature and amount of the business carried on, so as to provide him with a constant check upon the accounts of the royalties. It is very doubtful whether his journeys to the different works, for the purpose of watching over his interests, and seeing that the anchors were properly made, ought to be debited to the Patent ; and there are annually questionable items [intro- duced into the accounts, for many of which there are no vouchers. But these sums are insignificant in comparison with the item for " Patentee's allowance and subsistence-money for fourteen years at 350 per annum, 4,900." The Patentee, in his examination before their Lordships, at first gave them to understand that this sum partly represented the expense of his maintenance which he claimed to charge against the Patent, but he afterwards stated, that it was an assumed sum which he considered himself entitled to for his trouble and labour in generally superintending the manufacture of his anchors by the different Licensees. Taking it for granted that this is the correct meaning of this large item, it is difficult to understand upon what principle it can be main- tained. It was no part of the covenant with the Licensees that the Petitioner should superintend their operations ; and if they required his assistance to instruct their workmen, they should have engaged him, and paid him for his services. If they had done so, this would have constituted a fair deduction out of the profits of the Licensees, and would have properly entered into the Patent account. But if an allowance for management were to be deducted from the royalty in ascertaining the amount of profit received by the Patentee, as the Licensees, in estimating their profits from the Patent, would be entitled to the deduction of an 126 CASES IN THE PRIVY COUNCIL. [L. IL '.'. annual sum on the samo account, tho Patent would be rdships think that the l't titin< r has not placed himself in a posi \\liirh entitles him to their favourable consideration, and they cannot recommend any extension of the term of his Patent Solicitors for the Petitioner : WcUkins, Baker, & Bayli$. Solicitors for the Treasury for thu Cro\\ n. VOL. L] CASES IN THE PKIVY COUNCIL. 127 GEOEGE JONES SAXON PAGE APPELLANT ; J- a* AND 1866 COWASJEE EDULJEE KESPONDENT. Feb.z& ON APPEAL FROM THE SUPREME COURT OF CEYLON. Sale of hull of stranded Ship by auction Variation of conditions of sale Pay- ment of deposit Repossession by vendor He-sale Action to recover the difference between original price and sum realized upon re-sale ^Roman- Dutch Law Pleadings Answer Reconvention Damages awarded to De- fendant. Action to recover the difference between the original price bid at public auction, and the sum realized upon a re-sale, for the hull of a stranded vessel, sold by the Master and purchased by the Defendant, upon conditions of sale, which were appended to the memorandum of purchase, and signed after the sale by the Defendant's agent on his behalf; which conditions differed materially from those appended to the catalogue of sale, and which were the conditions read out at the auction. The Defendant paid the deposit upon the terms of the conditions of sale read at the auction, and took possession of the vessel, without having any formal transfer made to him. The vessel was laden with rice, and was soon afterwards by order of the Board of Health, destroyed as a nuisance. The Defendant having declined to complete the purchase, the vendor resumed possession of the vessel, and re-sold it at a loss. The form of the action was by libel, according to the Roman-Dutch Law. The Defendant in his answer, among other defences, denied that he had purchased under the conditions appended to the memorandum of sale, and prayed the dismissal of the action with costs ; and in reconvention, for pay- ment of the amount of the deposit and damages he had sustained, to the amount of 1,000, for loss of profits and advantages from the vessel, her tackle and implements. The judgment of the District Court was in favour of the Plaintiff, the Judge of that Court, being of opinion, that the Defendant purchased on the conditions of sale appended to the memorandum of purchase, and that, according to those conditions, the Plaintiff had rightly resumed possession and re-sold the vessel. The Supreme Court on appeal reversed that judgment, and ordered judgment to be entered for the Defendant, being of opinion, that the Plaintiff having founded his claim upon an agreement which gave, among other things, a right of re-sale, with conditions different from those read at the auction and having in consequence repossessed himself of the vessel and re-sold her, had thereby deprived himself of the right to recover from the Defendant, and awarded the Defendant the damages claimed by his answer : * Present: LORD CHELMSFOBD, SIB JAMES WILLIAM COL VILE, and SIB EDWARD VAUGHAN WILLIAMS. VOL. I. 3 K CASES IN THE PEIVY COUNCIL Held by the Judicial Committee, (1), that though the merits of the i -. WIT ; no judgment ot "-me 7 ~ Court could be sustained, as there was DO other agreement between the jr ies than the one founded oo the conditions read out in the auction room at the OOWASJES sale; ami that the Plaintiff having sued upon a different contract, was not J ^~ to it-cover, and ought to have been non-suited: a it in the absence or any evidence of damage, the Defendant was not entitled to judgment for damages: . in : i.i-r. that although the set of the Plaintiff in retaking the hull ot the ship and selling her was wrongful as. . the Defendant to 1 an action of trover, it did not amount to a recission of the contract. ore actual delivery, the vendor re-sells the properly while the pur- M.-T is in default, the re-sale will not authorize the purchaser to oui the contract rescinded, so as to entitle him buck any deposit of the price, or to resist paying any balance which may be still due. The rule applies where there has been a delivery, and the vendor after- wards takes the property out of the possession of the purchaser, and re- sells it, J.HIS was an appeal against a decision of the Supreme Cunt of Ceylon, setting aside a judgment of the District Court of Colunibo in an action brought in that Court by the Appellant, as Plaintiff, against the Respondent, as Defendant. The Plaintiff was formerly the Master of the ship, Nova Scotian. The Defendant, a Parsee Merchant residing at Colwnbo, was the purchaser of the hull of the ship. The libel of the Plaintiff stated, that the Defendant by a certain memorandum or agreement, which was annexed to the librl, had agreed to purchase the hull of the ship, Nova Scoiian, for tin sum of 1,020, according to certain conditions of sale annexed to the libel, by which it was stipulated, amongst other things, that the purchasers should pay to the Plaintiff a deposit of 10 ]> r cent, on the purchase-money, on the transfer-deed being executtd by the Plaintiff, but if from any cause whatever the remainder of the purchase-money should not be paid, then that interest at the rate of 10 per cent, should be paid by the Defendant until payment in full, but without prejudice to the right of the Plaintiff, in case the Defendant should fail or neglect to comply with the con- ditions, to treat the deposit money as forfeited, and to have the sale enforced, or to have the vessel re-sold at the option of the Plaintiff in terms of the conditions of sale ; and the libel stated that, although the Defendant had paid 250, in respect of the VOL. I.] CASES IN THE PRIVY COUNCIL. 129 deposit of 10 per cent., and the Plaintiff had always been ready J. C. to carry out his part of the agreement, the Defendant refused 1866 to pay the balance of the purchase-money, and the Auctioneer's p AGE commission, and otherwise failed to comply with the terms of the COWASJEE agreement and conditions of sale, and that, therefore, the Plaintiff EDCLJEE. had caused the hull of the vessel to be sold at the risk of the Defendant, and at which re-sale no higher sum than 500, was offered, whereby the Plaintiff became entitled to recover from the Defendant a sum of 520, the deficiency on such re-sale, together with costs of the same as liquidated damages. Annexe I to the libel was the following memorandum of sale : "That Cowasjee Eduljee declared the highest bidder for and purchaser of the ship, Nova Scotian, hereinbefore described, at the sum of 1,020, at which sum he, the said Cowasjee Eduljee, doth . agree to become the purchaser thereof accordingly, and also doth agree on his part to perform the conditions of sale; and in consideration thereof the vendors do agree to sell and convey the said vessel unto the said Cowasjee Eduljee, his heirs and assigns, or as he shall direct according to the said before written conditions." On the other side of the same paper on which the foregoing memorandum was printed and signed, were, partly written and partly printed, certain conditions of sale, which differed materially from the original conditions appended to the catalogue. The third condition required a deposit of 10 per cent, on the purchase- money, as pleaded in the libel, and the eighth condition gave a power of re-sale. The Defendant by his answer pleaded as follows: first, he denied that he purchased the vessel subject to the conditions of sale alleged in the libel, and stated that, on the contrary, the vessel was advertised for, and was ultimately put up for sale, on entirely different conditions, which conditions of sale he annexed to his answer. Second, he stated that when the vessel was put up for sale he offered the sum of 1,020, for the same, and the offer being accepted paid the deposit of 250, in part of the purchase-money, and tendered the balance of the purchase-money, but that the Plaintiff refused to convey the vessel or to furnish the Defendant with the necessary documents for the preparation of 3 K 2 CASES IN THE PRIVY COUNCIL. [L. R. j. 0. a legal transfer. Thirl, that tho Teasel was subsequently ta possession of 1>\ tin- Board of Health, and on the grounl that the same was a nukm- . was broken up. destroyed and damaged, . irth. that the Plaintiff hud not at th- time he offered the ( W \^i| I t-nufc vessel for sale, and liad never since, had the necessary p ht or authority tn s- 11 the vessel or to make a good conveyance thereof to th.- iM'.-ii'lant. Fifth, that the I'laii.tiff after th.- sale resumed possession of the vessel and offered the same for sale. Sixth, that the agreement for the sale was invalid and inoperat and contrary to law: and seventh, that by reason of th. 1'lain- tiff's non-performance of his agreement he had become and was liable to pay to the Defendant the sum of 250; and in reeon- vention the Defendant pleaded, that he had sustained heavy loss and damage, having been deprived of the profit and ath tage which wouM have accrued to him from the vessel wh n repaired and floated, her tackle, implements and other articles, which the Defendant had also purchased with a view of re-fitting the vessel, to the damage of 1,000. The conditions of sale which were annexed by the Defendant t> his answer, provided by the second condition for a deposit of 25 per cent, to be made on each lot, if required, at the time of the sale, but gave no power of re-sale and forfeiture of deposit in failure of compliance with the conditions. The action was tried before Mr. George Lawson, the Judge of tin- District Court of Columbo, when the following facts were proved : Early in the month of December, 1862, the Nova Scoiian, of which the Plaintiff was then Master, arrived at Columbo, and on the 18th of that month she was driven from her anchorage, and finally stranded near the harbour, a complete wreck. At the request of the Plaintiff, two surveys were held on the Nova Scotian by Captains of other ships then in port. Acting on their advice, the Plaintiff, as Master of the ship, advertised the ship for sale, for the benefit of all concerned. Catalogues and par- ticulars of sale of the ship and stores were circulated in Columbo by the Auctioneers. Appended to the catalogues were certain printed conditions of sale, which were the same conditions as were filed with the Defendant's answer. The sale took place on the and 3rd days of January, 1863. Before the sale com- VOL. I] CASES IN THE PRIVY COUNCIL. 131 menced, the Auctioneer read over the conditions of sale attached J - C. to the catalogue. The hull of the ship was sold for 1,020, to J^j6 the Defendant's agent. The Defendant was present at the sale, PAGE and purchased several other lots put up for sale, consisting of COW^SJEE tackle, stores, &c. After the sale, the Defendant's agent, in his EppLJEK ' presence, signed, at the request of the Auctioneers, a memorandum in the form annexed to the Plaintiff's libel. The conditions of sale were not those originally appended to the catalogue of sale, but were substituted for them. There was conflicting evidence as to whether they were read over in the presence of the Defendant and his agent, by the Auctioneer, or his Clerk, before the memorandum of the sale was signed. The Defendant paid the deposit of 25 per cent., as stipu- lated by the original conditions, and received from the Auctioneers authority to take possession of the wreck, which he accordingly did. Application was made to the Plaintiff by the Defendant for the Ship's Register, which the Plaintiff refused, having, on the advice of the Collector, sent the same to the Custom-house, to be transmitted to the Port of Registry in England for the purpose of being cancelled, pursuant to the provisions of the Merchant Shipping Act, 17th & 18th Viet., c. 104, sec. 53. On the 8th of January, 1863, the De- fendant received a notice from the Board of Health, ordering him to discharge the cargo forthwith, or within a week, and on the next day he was informed that the Board of Health intended to destroy the ship, as a nuisance, on the following morning ; and accordingly the ship was blown up on that day. On the 12th of January, the Auctioneers by letter of that date, applied to the Defendant for payment of the balance of the purchase money. The Defendant declined to pay the balance and claimed to have his deposit returned, upon the ground that the Plaintiff had failed to comply with his agreement, and was unable to carry it out as the ship was destroyed. The Auctioneers gave notice by letter to the Defendant that they should re-sell the ship at the Defendant's risk in terms of the conditions of sale, and the ship was accordingly re-sold, by auction, and fetched the sum of 500. The Judge of the District Court found, that as it appeared from the memorandum of sale that there was a plain and distinct reference to certain conditions written on the same paper, and as the Defen- dant's agent, in signing that document, must have learned that they CASES IN T Y COUNCIL. [L. B. j.C. were incorporated with the memorandum, or in u lit have done so lut lor hi* o\\n neglect, tin- riuintiir had proved that tho Defend purchased tli.- vessel subject to tli.- conditi . I.I--1 : and he :nld< <1, that t h. re was no pretence t<>r imputm. IJOL the Plaintiff or hit agents: h<- further tound.th.it ih. 1'iaintiff had always 1- - ,id willing to tran-;-r tho Teasel, was just ilied in i U) 1'nrnish tin- I).-tendant with tin- lU-^i.- and he he-Id, that tin- I'laintifY Mas not bound to prove his n to sell the vessel, as the Defendant liad dealt with him as having authority to sell : that the Board of Health did u>t take posses- sion of tlu- ship or injure it until alter tho property had pass* the Defendant an 1 was at his risk, and that the ii jury done to the ship by a third party after the property had vested in Defendant, and possession had been delivered to him, wa> ground for rescinding the contract That the Plaintiff \wi> ju-tiiie 1 in resuming possession of the shij> l.y the conditions of sale; and that as to the contract being void and illegal because the vessel was a nuisance, there, was no evid.-nc.- that the ship was a nuisance at the time of the sale, and not sufficient to prove that she was so, when abandoned l>y the Defendant The Court, therefore, found against the Defendant on all the pi. as plea led l.y his answer, and judgment \\a> entered lor the Plain titV tor '.'>!'.',. Is. and costs. The Defen ant appealed from this judgment to the Supreme Court of the Island, on the following, amongst other grounds, first, that it was established that the vessel had been sold on the conditions appended to the catalogue of sale, and not on the con- ditions produced by the Plaintiff; and, secondly, that the D dant having purchased the vessel on the conditions appended to the catalogue, could not be subsequently burdened with other and different conditions. On the 24th of November, 1863, Sir Edward 8. Creasy, the < Justice, delivered the judgment of the Court, whereby the judgment given by the District Court in favour of the Plaintiff was set aside, and judgment for the Defendant, with costs, ordered to be enter d. The Chief Justice, in delivering the judgment of the Court, after stating the averments in the libel and answer, proceeded in these terms : " The hull of the Nova Scotian was sold by auction, and it appears to us to be quite clear on the evidence that the conditions VOL. I.] CASES IN THE PRIVY COUNCIL. 133 of sale, which were circulated before and during the auction, and which were read out by the Auctioneer at the commencement of the sale, were not the conditions relied on by the Plaintiff and annexed to his libel, but were a different set of conditions which the Defendant has annexed to his (the Defendant's) answer. These last-mentioned set of conditions contain nothing to give the vendor a power of re-sale in the event of the purchaser making default they stipulate for a payment of 25 per cent, deposit. The Defendant was the highest bidder for the hull of the stranded ship and the lot was knocked down to him. In the ordinary course of auction sales he thereby became the purchaser, according to the conditions which the Auctioneer had read out, and subject to the necessity of complying with any statutory requisites as to such sales, whether imposed by the Imperial Legislature or by the Ordinances of this Colony. No point was made in the argument of the case, as to the non-compliance with the provisions of the Merchant Shipping Acts, as to the mode in which property in a ship can be transferred. We do not think it necessary to consider that point in this judgment, because it is a clear fact in the case, that no such formal transfer of the ship was here made at all. If such a formal transfer is indispensable in order to give validity to the sale, or to make it amount to at least a valid agreement for a sale, the Plaintiff is out of Court for default of such a transfer having been effected. After the sale, the Defendant paid the deposit of 25 per cent, stipulated in the conditions which had been read out, and this payment satisfied the requisitions of the Ordinance, No. VIL of 1840, sec. 21 ; and the sale and purchase of the ship's hull were thereby made valid and completed according to our Colonial laws, and unquestionably the sale and purchase were made, and the deposit paid, under the conditions of sale read at the auction, and not under those which the Plaintiff sets up, but of which not a word had been said in the transactions until after the deposit money was paid. After the payment of the deposit a set of conditions of sale, which do contain a clause of re-sale, and which are annexed by the Plaintiff to his libel, were signed by the Defen- dant's agent at the Auctioneer's office. The evidence of the parties as to the precise circumstances under which they were signed is not uniform. We have no doubt that the Defendant's agent signed them J. 0. 1866 PAGE *> COWASJEK EDULJEE. j ; I CASES IN THE PRIVY COUNCIL. j Q in full eonlM. -IK- th;it they were identical with those read oat at th<- sale. But oven it' lie knowingly signed condition-, uhieh imposed tho new obli_Mti.'ii uii him of paying any loss arising from a re- . Mia, iUch tr.-h u-_rn .!!!. -nt \\,.iil.l I-- in-.ulli.-i. -nt I- maintain ;m UKB. action, U-iiiu' entiivly without consideration. It has been urged that the right of re-sale always exists, and th.it the Tender h.. here independently of th- stipulations in the signed set of condi- tions of sale. This is 1 .u-ly shown not to be law by the case of M.trtindale v. Smith (1) and other authorities, cited in Tvdor* Leading Cases on Men an tile and Maritime Law, p. 530, d. teq." The effect of this judgment was to condemn the Plaintiff to pay the Defendant the several sums of 250, the amount of the deposit, and 1,000, claimed in his answer for damages. The Plaintiff appealed from this judgment to Her Majesty in Council. Mr. MeHisJi, Q.C., and Mr. Watkin Wittiam,ioi the Appellant : This, though an action brought by the Plaintiff, as Master of the ship, Nova Scotian, to recover damages from the Defendant for the non-fulfilment of a contract for the purchase of the hull of that vessel, which had become a wreck, has been so dealt with and treated in the Court below as to have the effect of an action by the Defendant against the Plaintiff to repudiate the contract of sale upon the ground of fraud, no fraud being alleged or pro\ and damages to the amount of 1,000, have been given against the Plaintiff, without any evidence of damage sustained, or materials from which it could be inferred, but simply upon the Defendant's claim in reconvention made by his answer. That is the consequence of the judgment of the Supreme Court, which did not simply reverse the judgment of the District Court, but actually gave judgment for the Defendant, with costs. It is as if the Defendant had originally brought an action against the Plaintiff, to repudiate the contract of sale, which the Plaintiff had sued on. This is irregular and cannot upon any principle of pleading be sustained, and on that grouu 1 alone we submit that the judgment of the Supreme Court cannot stand. But both the merits and the law are with the Appellant, and were rightly so held by the District Court. The vessel was a (1) 1 Q. B. 389. VOL. I.] CASES IN THE PRIVY COUNCIL. 135 wreck, and the Master, in the circumstances, properly sold her ; j. c. Cambridge v. Anderton (1) ; Farnworth v. Hyde. (2) The memo- randum of sale, signed by the authorized agent of the Respondent. was, in the absence of fraud, the only admissible evidence of the ' COWASJEK terms upon which the Appellant sold and the Respondent purchased EDUIJEE. the ship ; Acebel v. Levy (3) ; Hochster v. De La Tour (4). Up to the time of the signing of the memorandum of agreement there was not a complete contract of sale under the law of the Island. Ceylon Ordinance, No. VII., of 1840, which, by clause 21, part 3, requires either a written contract, signed by the parties making the same, or by some person thereto lawfully authorized by him, on the delivery of the whole or part of the thing sold, or on payment of the whole or part of the purchase money. The case of Martindale v. Smith (5), cited by the learned Chief Judge in the judgment of the Supreme Court, is not in point. That was an action of trover for goods sold but not delivered, after part payment of the purchase-money in pursuance of an agreement executed at the time of sale, which fact differs from the present case ; Milgate v. Kebble (6). There is no implied warranty of title in the contract of sale of a personal chattel ; that was held in Morley v. Attenhorougli (7), Eichlwlz v. Bannister (8). The evidence shews that the Appellant had been at all times ready and willing to carry out the terms of the contract, and that the Respondent had made such default as entitled the Appellant to proceed to a re-sale at his risk : Hartley v. Baxen- dale (9). According to the conditions of sale appended to the me- morandum, the purchaser was bound by the contract executed, and the ship being a wreck, there was a right of re-sale without any special clause to that effect. Chinerey v. ViaU (1 0) shews what may be the measure of damage. The re-sale of the vessel was not a rescind- ing of the original contract ; Stephens v. Wilkinson (11); Fitt v. Cas- sanet (12) ; GiUard v. Brittan (13) ; Greaves v. Ashlin (14). A clause (1) 2 B. & C. 691. (8) 34 L. J. (C. B.) 105 ; 5 Ne^y (2) 5 New Rep. 488. Rep. 87. (3) 10 Bing. 376. (9) 9 Ex. 341. (Y) 2 E. & B. 678. (10) 5 H. & N. 258. (5) 1 Q. B. 389. (11) 2 B. & Ad. 320. (6) 3 M. & G. 100 ; 3 Sc. N.S. (12) 4 M. & G. 898. 358. (13) 8 M. & W. 575, (7) 3 Ex. 500. (14) 3 Camp. 426. !.".'i m: Pi: IVY COUNCIL. [L. II. J.O. of re-sal-- is usual in ./ ///./,',.<; ('Itith/tm ('..MM is.;.; ].. :','! (Ttli Ed.); Blj <-ti..n to the non-1. OowAAin was not re<|iiiHt.-. m undi-r the M 'he Merchant 'J- Shipping A>-t. 17 ,V 1> Vi.-t. -. KM, tli- r.-rtili.-at- of a ship or censing to be a British ship, must ! d.-liv.-r.-d up tin- British Consul of th-- port, to bo transmitted by liim to the |x)rt of Registry : MadacJJan on the Law of Merch Shipping, p. 80. Mr. F. Sti/e Everitl, for the Respondent : First, the contract for sale was complete upon tlu pur<-hn?.-. tip ReepfN M In-in^ declared the highest l>i I !.T, an 1 that \> so, the conditions app^n lr 1 to the printed catalogue, read at the auc i..n. ucre the conditions subject to which the Respondent lt..ii-ht. and not the conditions sul^titutod at the time of the :iinu r of th.' memorandum of purchase by the K nt on ln's In-half. There was no right of re-sale in the condi- tions und.-r \\hich the Respondent purchas'd. All the Appellant was entitled to, if he had any remedy, was to affirm the coin if it was one of sale, and lu-in^ an action for the balance of the purchase money; but even that remedy was abandon. -d by the riaiut ill's resuming possession of the hull of the ship and n'-s.-lliir/ it; and the claim made to recover the difference of the original purchase money, allowing for the amount realized by the re-sale^ cannot under any circumstances be supported. On the contrary, the Respondent was cut it led, and was rightly so held by the Court below, not only to have the contract rescinded, as null and void, but to the dama-. s claimed by him in his answer for the breach of it by the Appellant; Hagedom v. Lainy (1); Martindale v. Smith (2); Maclean v. Dunn (3). As to the general power of re-sale in case of repudiation of the contract, ail the authorities are collected in Addison on Contracts, pp. 205-6 (5th Edit,). The sale of the ship by the Master, without the consent of the owner, could only be just i lii d by proof of urgent circumstances, which proof is not afforded here. The " Margaret MitcJieU " (4) ; The Bonita " (5) ; (1) 6 Taunt 162. (2) 1 Q. B. 389. (3) 4 Bing. 722. (4) Sw. 382. (5) Lush. 252. VOL. I.] CASES IN THE PEIVY COUNCIL. 137 Tudor s Leading Cases on Mercantile and Maritime Law, 530 et sec. Secondly, the mode of pleading, though by the English pro- cedure may be thought inconvenient, is in accordance with the practice prevailing in the Courts in the Colony, being founded on the Roman-Dutch law which is in force in Ceylon, and which law allows a counter claim by reconvention, such as is made by the Respondent's answer ; the decree, therefore, is consistent with both the law and practice of the Colony. It is not necessary no\r to insist on the non-delivery of the Ship's Registry, because the whole transaction, with respect to the sale, was vitiated by the act of the Appellant. Their Lordships' judgment was delivered by LOKD CHELMSFOED : This is an appeal from a judgment of the Supreme Court of Ceylon reversing a judgment of the District Court of Colombo in favour of the Appellant (the Plaintiff in the suit), and ordering judgment to be entered for the Defendant (the Respondent), with costs. The action was brought in the District Court to recover the balance of a sum of 1,020, the amount at which a stranded ship called Nova Scotian was sold by the Plaintiff, the Master, and pur- chased by the Defendant under the following circumstances. The Nova Scotian had arrived at Colombo in the month of December, 1862, and was lying there at anchor with a cargo of rice on board, when, on the 18th of that month, she was driven from her anchorage and stranded on the beach near the harbour. Before her stranding the Nova Scotian appears to have been worth 9,000, and she was under insurance for 7,000, but the Plaintiff thought that her back had been broken by the stranding, and in his opinion it would have cost from 1,500 to 2,000, to get her afloat again. Under these circumstances the Plaintiff caused two surveys to be held on the Nova Scotian, and acting upon the judgment of the Surveyors, and under their advice, he advertised her, with her tackle and apparel, for sale by auction on the 2nd and 3rd days of January, 1863. J.C. 18G6 PAOH v. COWASJEE EDULJEE. 1866 Feb. 21. 138 CASES IN THE PIUVT COUNCIL. R. The sale took place on the days named. The property sold was 1W6 arranged in sixty- i-M lots, the vessel being the last lot in the 8 catalogue, and was oil-red for sale separately from her sails, stores, ODWAUEB 8 P ftr8 naW8ere *&& "gg" 1 ^ \\hieh \\< ,n prior lots. ij ". The catalogue of sale was headed * Catalogue and j.aitic-ulurs of the sale of the ship, Nova Scotian, of Liverpool, 91W tons, l.uilt 1860, as she now lies stranded opposite the Racket Court, con- demned on survey to be sold on account and i'..r the l.< n, ; concerned, with all her sails, stores, Ac." The conditions ter, lay's date, I beg to inform you that the Captain having tailc 1 to coin ply with his agreement, and having sold the vessel un-li-r circumstances which l-d to its sub- sequent dostnietii.n, and being now, as you are auar- . un:.l. carry out the agreement, I decline to pay the balance of \\\>- pur- chase money, an I shall look to you and the Captain for the repay- ment of my deposit, and the damages which have occurred to me by reason of your default." On the receipt of this letter, Messrs. Ledicard & Co. wro 1 the Defendant on the 14th of January in these terms: "As in your letter of yesterday you decline to pay us the balance of the purchase money for the hull of the Nova Scotian and other articles purchased by you at public auction, we beg to give you notice that the same, after due publication, will be re-sold at your risk in terms of the conditions of sale." The ship was accordingly again put up to sale and sold for 500, and the Plaintiff brought his action to recover the difference between the original price and the sum realised upon the re-sale, together with the Auctioneers' commission, the balance claimed, after giving credit for the Defendant's deposit of 250, being 383. 11*. The libel of the Plaintiff (to which was annexed the memoran- dum signed on the part of the Defendant and the conditions therein referred to, which the Plaintiff prayed might be taken as part of the libel) alleged, that the Defendant agreed to purchase the hull of the ship Nova Scotian, as she then lay stranded on the beach, for the sum of 1,020, according to certain conditions there- unto annexed, and amongst them the stipulation that the pur- chaser should pay a deposit of 10 per cent, in part payment of the purchase money and should pay the remainder on the transfer deed being executed ; but if the remainder of the purchase money should not be paid, interest at 10 per cent, should be paid by the Defendant until payment in full, but without prejudice to the VOL. I.] CASES IN THE PEIVT COUNCIL. 141 right of the Plaintiff (in case the Defendant should fail or neglect J- C. to comply with the conditions) to treat the deposit money as 1866 forfeited, and to have the sale enforced or to have the vessel re-sold, p AQB at the option of the Plaintiff, in terms of the conditions of sale. 00^.^,^ The libel then alleged the payment by the Defendant of the de- EDULJEB. posit of 250, his failure to pay the remainder of the 1,020, and the re-sale of the vessel in terms of the conditions of sale, and claimed the deficiency of the re-sale, together with all costs and charges attending the same, as liquidated damages. The Defendant's answer, in the only parts of it necessary to be noticed, consisted of First, a denial that he purchased the vessel on the conditions in the libel mentioned, for that the vessel was put up for sale on entirely different conditions, to wit, the conditions appearing in the annexed document marked letter A. (being the catalogue and the conditions therein contained). Second, that although the Defendant was ready and frequently oifered to pay the remainder of the purchase money, yet the Plaintiff would not convey the vessel nor furnish the Defendant with the neces- sary documents for the preparation of a legal conveyance. Third, that the Plaintiff had not at the time of the sale, and has never since had, the necessary power, right, and authority to sell the vessel or make a good conveyance thereof. Fourth, that the Plaintiff had since resumed possession of the vessel and offered the same for sale ; and the Defendant prayed that the Plaintiff's suit might be dismissed with costs and the Plaintiff be condemned in reconvention to repay the deposit of 250, and to pay damages to the amount of 1,000, for the loss of the profit and advantage which would have accrued to him from the vessel when repaired and floated, as well as from the loss of the tackle, implements, and other articles belonging to the vessel, and which had since become useless for that purpose. The case was tried in the District Court of Colombo, witnesses being examined on both sides, and the Judge of that Court ulti- mately decided all the issues in favour of the Plaintiff. He found that the Defendant purchased the vessel subject to the conditions annexed to the libel. That the Plaintiff had authority as Master to sell. That as the vessel was sold as a wreck, the Master was bound to forward her Register to the Collector of Customs for -ES IN Tin: 1'I;IVY OOUK [L. It m to tli.- jH.i-t ami that it \\ofl not necessary i ; I 1 '-;. 'ant t. hav th ..... -rtili.-ate in Me him to prepare the Kill of sale ; and that tin- Plaintiff' wa.s justified ly tin- terms of tin- contract of Bnl-- in r.-uinin-j- pOOJCiBJun of EDOUBK. the vessel ami sellim_' h-r. ami In- ordered judgment to be ent In r th.- Plaintiff' 1'nr C'>7'.'>. Is.. U-ing the amount which h.- claimed, less 10. lOa. said to have 1>. . n j.ai 1 l.y him to Counsel, which .!nd_rc thought he was not cut it 1. d to n-.-nv. r fmm the Defendant. Upon appeal by th- > 1 ant 1'mm this judgment i>< Supreme Court, it was set aside, and judgment ordered "to be entered for the Defendant with costs." It was stated at the Bar that there was no other iveord of this jud^nu-nt than the one printcil \\itli the papers, and it was assuim d on l...th >id-s 1 althnuirh it is in tho general form just stated, it has the eflfe< nititlini: tl. I 1 'ant t tli.- n-turn of his lcjx>sit and also to the damages of 1,000, which he prays by his ans The ground upon \\hich the Supreme Court decided the appeal in favour of the Defendant seems to have been, that the Plaintiff' havintr founded his claim upon an agreement with conditions vary- ing from those in tin- catalogue, in respect of their containing a clause of re-sale, and the Court being of opinion that upon the facts proved, the Defendant did not enter into an engagement con- ning any such condition ; the Plaintiff' having \\rmiirfully re- possessed himself of the vessel and re-sold her, had d- prived himself of his right to recover the price from the Defendant. That this was the view of the case taken by the Court appears from the learned Chief Justice having adverted to the argument on behalf of the Plaintiff that the riirht of re-sale exi>td inde- pendently of the stipulations in the signed set of conditions of sale, which he showed not to be law by a reference to the case of Martindale v. Smith (1), and other cases referred to in Tudor Leading Cases, p. 530. As the District Judge decided in favour of the Plaintiff, there was no occasion for him to consider whether the payment by the Defendant of the 250, in part of the purchase money, did not bind the parties to the contract of sale as completely as if there had been a written memorandum. But the Supreme Court did (1) 1 Q. B. 389. VOL. I.] CASES IN THE PEIVT COUNCIL. 143 take that fact into their consideration, and with reference to it the J. c. Chief Justice said : " After the sale, the Defendant paid the deposit 1866 of 25 per cent, stipulated in the conditions which had been read p AGK out, and this payment satisfied the requisitions of the Ordinance r^^j^ No. VII., 1840, section 21, and the sale and purchase of the ship's EDCLJBE. hull were thereby made valid and completed according to our Colonial laws, and unquestionably the sale and purchase were made and the deposit paid under the conditions of sale read at the auction, and not under those which the Plaintiff sets up." The Supreme Court, therefore, must have been of opinion, that there was a binding agreement for the sale of the vessel between the parties. If, therefore, the Plaintiff had correctly stated his claim in his libel, and had founded it (as he ought to have done) upon a sale according to the conditions read in the auction room, he would clearly have been entitled to judgment, unless any of the objections contained in the answer of the Defendant would have been available as a defence. Their Lordships agree with the Supreme Court in thinking, that there was no agreement substituted for the one commenced in the auction room and completed by the payment of the deposit, but they must express their dissent from the opinion expressed by the Chief Justice, that if the Defendant " knowingly signed condi- tions which imposed the new obligation on him of paying any loss arising from a re-sale, such fresh agreement would be insuffi- ci nt to maintain an action, being entirely without consideration," as, under such circumstances, the relinquishment of the first agreement would undoubtedly amount to a sufficient considera- tion. Their Lordships do not doubt that the contract com- pleted by the payment of the deposit might have been varied by tl*e signature subsequently of a memorandum inconsistent with it. Their opinion is founded on the particular circum- stances of this case the acceptance of the deposit under the terms of the conditions read out in the auction room, the silence of the seller on the subject of any changes in the conditions, and the above mentioned conversation at the time of the receipt of the deposit. If the Plaintiff had properly framed his libel, precisely the same defences might have been set up as are now contained in the Defendant's answer, and, therefore, in order to VOL. I. 3 L I 1 1 CASES I I'RTVY COUNCIL, [I. J. C. prepare the way for a dtvM.m UJM.M th. n-al m. riu of the ca< 1806 in necessary ' -ti^ns \\hi.-h t ho Defendant has urged to the Plaintiff's right to recover in the present action. Taking the*- ol.j.-.-t i.ns a little out of tin- 01.1 BDOUU. are stat <1 in tin- answer, tin- first to be considered will be, wh- tli.- Plaintiff hud jwwer, n ,utli.nty t< v II the vessel Upon this issue there seems to be no reasonable ul>t tint the intilV could convey a goor<>.-urcd surreys to be made, and, proceeding upon the advice of the surveyors, determined to sell the vessel; a course which, it is reasonable to believe, the owner would have pursued upon a view of all the circumstances if he ha (>on the spot. I'-ut supposing the i'laintin' to have acted upon a i taken view of the iu-<-f>-ity oi the case, the Defendant could not -ist upon there being any implied warranty of tit I Plaintiff sold the vessel in the special character of Master, and not as owner, and acted upon a bond fide belief of his authority to sell. The vessel was advertised as a stranded vessel, and the De- fendant had every opportunity of examining her, and ascertainini: whether she had been brought into such a condition as to give Master authority to sell her as a wreck. The next point to be considered in the Defendant's answer, is the allegation that the Plaint ill' did not convey the vessel, nor lurnish the Defendant with the necessary documents for the pre- paration of a legal conveyance. This relates to the refusal of the Plaintiff to deliver the e.-rtiti.-ate of Ju-gistry to tin- 1 Mendant. According to the Ceylon Ordinance, No. V., 1852, the law to be administered in this case is the law of England. Now, by the 53rd section of the Merchant Shipping Act, 1854, where a Registered Ship is actually or con-t nu-t i vely lost, the Register is to be sent to her port of Registry. The Defendant could not, there- fore, be entitled to demand its delivery to him, and to refuse to execute the Bill of sale upon the non-delivery. The next part of the answer which requires attention is that in which the Defendant justifies his refusal to perform his contract VOL. L] CASES IN THE PRIVY COUNCIL. 145 in consequence of the Plaintiff having resumed possession of the J - c - vessel, and offered her for sale. It was upon this ground that the Supreme Court considered that the Defendant was entitled to their PAOB judgment. If the Plaintiff could have proceeded upon a sale on COWASJEE the conditions annexed to the libel, in which there was a power of re-sale, this defence would necessarily have been excluded ; but even if he had rightly claimed upon the contract which took place in the auction room, it would not have been a sufficient answer to the action. In this case the vessel had been delivered to the Defend- ant, and he was in complete possession. The act of the Plaintiff in retaking and selling her was wrongful, and entitled the Defend- ant to bring an action of trover, but did not amount to a rescission of the contract. If, when the Defendant declined to pay the balance of the purchase money, and altogether repudiated the agreement, the Plaintiff had taken him at his word, and resumed possession without anything more being said, the case might have been different ; but, instead of the Plaintiff agreeing to take the vessel back, and rescind the contract, he gave express notice to the Defendant that the vessel would be resold at his risk, "in terms of the conditions of sale." There is no case to be found in the Books where, after a sale and complete delivery of a chattel, and the price not paid, the vendor's taking the property out of the purchaser's possession has been held to amount to a rescission of the contract. Martindale v. Smith (1), and other cases, have determined that, where there is an agreement to purchase pro- perty, to be paid for at a future time, and the money is not paid at the day, the property remaining in the possession of the vendor, he has no right to sell it, and if he does the purchaser may main- tain trover against him. There may be cases where the vendor might sell without rendering himself liable to an action, as where goods sold are left in the possession of the vendor, and the purchaser will not remove them and pay the price, after receiving express notice from the vendor that, if he fail to do so, the goods will be re-sold. But the authorities are uniform on this point, that if before actual delivery the vendor re-sells the property while the purchaser is in default, the re-sale will not authorize the purchaser to consider the contract rescinded, so as to entitle him to recover (1) 1 Q. B. 389. 3 L 2 n<; CASES JN i HI. ri; IVY COUNCIL: [L.B. J c. back any deposit of the price, or to resist paying any balance oi MM \\lii.-h in av !- Mill du.-. I; this is the case win re the possession PACMS of property sold remains with the vendor, a fortiori must it be 00 where there has been a delivery. und the vendor take- ; the posscaaioi purchaser and re-sells it Their Lordships have entered thus fully into the various de- fences contained in the Defendant's answer, in order to H! the merits .it the case are entirely with the 1 and th he had rightly conceived his action, he would h;iv- I* -en entitl.-d to recover ; but he unfortunately has chosen to proceed upon a different contract from that \\hieh he established by proof. The i'lvine Court rightly ov rrul. d the decision of the Dist Judge, and lit -Id that there was no other agreement between the parties than the one which proceeded upon the conditions read out in the auction room. But, upon th. ir view of the case, they i>ui:ht to have directed a nonsuit to be entered, and not have gi judgment for the Defendant, much less a judgment which, accord- ing to the admission of the Counsel on both sides, gave the Defendant the whole of the damages claimed in his answer. No evidence was given of any amount of damages having been sustained by the Defendant ; and the claim, in respect of the assumed loss of the tackle, implements, and other articles belong- ing to the vessel, which were bought at the sale before the vessel herself was knocked down to the Defendant, cannot be entertained. It is impossible to sustain either the judgment of the Supreme Court or that of the District Judge. If the judgment of the latter were to be upheld, founded as it is upon the establishment by the Plaintiff of his right to re-sell the vessel under the power contained in the conditions of sale, the judgment would be an answer to any action which might be brought by the Defendant for the wrongful act committed by the Plaintiff in selling his property. It is unfortunate that the Plaintiff should have brought forward his undoubted claim upon erroneous grounds, and their Lordships wish it to be distinctly understood that in their opinion the Plaintiff would be entitled, upon a libel properly framed, to recover the price of the vessel, less the deposit ; and that none of the defences pleaded would be available to the Defendant in such an action. The Defendant, on the other hand, would be entitled VOL. I] CASES IN THE PRIVY COUNCIL. 147 to recover damages in an action of tort founded on the retaking of possession and re-sale of the vessel ; and these damages would probably be measured by the price which the vessel realized on the re-sale. Their Lordships, therefore, trust that the parties will see the propriety of preventing further litigation by an arrangement, of which the fair and just terms must be obvious. As the matter stands before them, they are compelled to recommend to Her Majesty that the judgment of the Supreme Court, and that of the District Judge, be set aside, and a nonsuit be entered, and that there be no costs of this appeal on either side. Solicitors for the Appellant : CotteriU & Sons. , Solicitor for the Respondent : T. Clark. J. c. 1866 PAGE v. COWASJEE ElH LJEE. IN RE_THE ATTORNEY-GENERAL FOR THE COLONY OF VICTORIA. ON PETITION FROM THE SUPREME COURT OF VICTORIA. Special leave to appeal Appealable value Consolidation of Appeals Attorney- General Security Costs. Several actions, in the nature of Petitions of Right, were brought against the Crown in Victoria under the Colonial Act, 28 Viet. No. 241, and judg- ments obtained against the Crown ; but the Supreme Court of that Colony refused leave to appeal to England, in some cases, because the amount recovered was under 5001., the appealable value prescribed by the Order in Council of the 9th of June, 1860, and in other cases, except upon terms of the Attorney-General in the Colony paying the amount of the verdicts with costs. In giving leave to appeal, upon special petition for that purpose, the Judicial Committee refused to sanction the terms imposed by the Supreme Court on the Attorney-General of finding security for costs of the appeals, and admitted the appeals without security being given. Appeals directed to be consolidated and heard as one case. IN this case a petition was presented by the Attorney-General of the Colony of Victoria, for special leave to appeal from judgments in several actions, in the nature of Petitions of Right, * Present: THE LORD JUSTICE KNIGHT BBUCB, THE LORD JUSTICE TURNER, and SIB EDWARD VAUGHAN WILLIAMS. J.C.* 1866 June 16. 1 is IN THE PBIVT COUNCIL. [L. B. J.C. iijit in the Supreme Court in tint r,,l,,i ,y against Her Ma- jestv. in uhich verdicts were obtained in favour of the PlaiiJ against the Crown. ppeared from the statement* in the petition, that in th- year VICTOMA. 186*5, a number of jM-titi..ns ni.d.-r the Colonial Act, 2fc V ict. N--. '_' 1 1 , "To consolidate the Law re-latin;: t<- tho recovery of Crown pro- perty, and the enforcement of the Claims against the Crown," were filed in the Supreme Court of the Colony, by various parties as Plaintiffs, against tin- <'r>\vn, to recover sums of money paid )y them and received on behalf of Her Majesty in respect of duties of customs authorized by a resolution of tho Legislative Asseni ! which resolution the Plaintiffs contended was unconstitutional, and the levy of the duties thereunder illegal, and upon which petitions verdicts were obtained by the Plaintiffs against the Crown. Leave was reserved to the Crown to move for nonsuits in all the cases, on the ground that the cause of action was not a claim or demand A\ithin tin- meaning of the 28th Viet. No. 241, as held by the Court on the trials. These rules were, after argument, discharged, and judgments given by the Court in favour of the several Plaintiff's, ^hereupon the Attorney-General applied to the Supreme Court for leave to appeal to Her Majesty in Council against such several judgments. The Supreme Court, however, refused .such leave, except upon the terms of his paying the amount of the verdict and costs in each case (the Plaintiffs giving security to return the money in the event of the appeals being successful) ; and of conso- lidating all the appeals in such actions, and absolutely refused leave to appeal in two of the cases, on the ground that the amount of verdict was under 500, the prescribed appealable value (I). The Attorney-General of Victoria, on behalf of the Crown, offered to consolidate the appeals, but refused the other condition sought to be imposed, inasmuch as it indirectly interfered with the personal obligation imposed on the Governor of the Colony under Act, No. 241, and the provisions in sections 24 and 25 of the Audit Amendment Act of Viet. No. 86, of causing payment to be made of money for which a verdict may be obtained in a suit . tinst the Queen under Act, 28 Viet No. 241, and in his petition to the Queen in Council for leave to appeal, he submitted, that the (1) See Order in Council, 9th June, 1860. VOL. I.] CASES IN THE PKIVY COUNCIL. 149 privileges of the Crown, and the duties of the Governor, were involved in the judgments and decisions of the Court, and that with respect to the two cases said to be under appealable value, the matter in issue indirectly involved a much larger amount than 500, and, therefore, brought the cases within the rule of the Privy Council, provided by the Order in Council, and he prayed for special leave to appeal from the judgments and de- cisions of the Supreme Court on the rules in all the several cases, and from the judgments on demurrer in such cases, as in his petition were set forth, and that he might prosecute such appeals. The application was ex parte. The Attorney-General (Sir E. Palmer), and Mr. KeTcewich, in sup- port of the petition, submitted, that the actions brought against the Crown in the Court below, being by parties who had been compelled to pay duties levied under a resolution of the House of Assembly, were improperly brought under the Colonial Act, 28 Viet. No. 241, which was not applicable to such cases, the remedy there given being expressly confined by the 25th and 27th sections to cases of contract made on behalf of the Crown. That the legality of the levy of the duties claimed involved a constitu- tional question of the right of the House of Assembly to authorize such levy by its single resolution ; and that both as regarded the value of the subject matter at issue, as well as the terms proposed for the allowance of the appeals by the Supreme Court, Her Majesty's Attorney-General in the Colony ought not to be precluded from appealing on the ground of the pecuniary amount of the verdict being under 500, as the question at issue was of far greater value in the aggregate ; that the Petitioner was ready to allow the consoli- dation of all the cases in one appeal. It was insisted also that the Petitioner ought not, as Attorney-General of the Colony, to be called upon to give security for costs of appeal : The Attorney- General of Isle of Man v. Cowley (1). THE LORD JUSTICE KNIGHT BRUCE : Their Lordships think, in the circumstance of this case, there should be leave to appeal, and without giving any opinion as to (1) 12 Moore's P. C. Cases, 27. 1866 wv*-' j n re THE VICTORIA. 1 :, > OASES W THE PRIVY COUN< [L. * J. C. the pov ,. ,,r tli.- mninor of enforcing th-i imposed, they are of >j>ini>n that tln-r- should U- no terms imposed, and that th-r- *li'iiH "imply be leave to HpjM .^1. ai,n that ground, the Supreme Court made an Order revoking the leave given. In such circumstances their Lordships, upon petition, gave special leave to appeal on security being given for costs in England, with liberty for tho 1'c tit loners to apply to the Court at Victoria to cancel the security Bond. JL HIS was a petition, by Webster and othere, for leave to appeal from decrees of the Supreme Court, in its equitable jurisdiction, and also from an Order revoking the leave given to appeal to the Queen in Council granted by that Court. It appeared from the petition, that a suit was instituted by the Petitioners in the Supreme Court of Victoria, and a decree made by that Court against the Petitioners, which decree was afterwards * Present : THE LORD JUSTICE KNIGHT BRUCE, THE LORD JUSTICE TURNER, and SIR EDWARD VAUGHAX WILLIAMS. VOL. L] CASES IN THE PRIVY COUNCIL. 151 confirmed by the Supreme Court in its appellate jurisdiction, and J. 0. that the Petitioners obtained, on the 13th of June, 1865, leave to 1866 appeal therefrom to Her Majesty in Council under the Colonial Ad, 15 Viet. No. 10, "For the better administration of Justice in New South Wales." That in accordance with the provisions of that Act the leave to appeal was granted upon condition, that the Peti- tioners gave security by Bond in the sum of 250, to the satisfac- tion of the Master in Equity, for the prosecution of the appeal and payment of the costs. That while the Petitioners' Solicitor was proceeding to carry out the Order allowing leave to appeal, he was, on the 6th of October, 1865, served by the Defendants' Solicitors with a notice of motion that the Court would be moved, on the 12th of October instant, that the Order made on the 13th of June last be set aside and rescinded, on the ground that the Petitioners had not given the security required by such Order within three months, the time limited by the 15 Yict. No. 10, from the date thereof, and upon the allegation that the appeal was not more forward then than at the date of the Order allowing it, excepting that the Master had settled the form of the Bond in blank for the names of the proposed sureties, and had directed the completion by the 2nd of October, but that the Petitioners had not complied with such directions. It further appeared from an affidavit filed by the Petitioners' Solicitor, that the delay in per- fecting the securities had mainly arisen from the objections made by the Defendants' Solicitors to the sureties proposed. That an offer had been made by the Petitioners, and in the first instance accepted by the Defendants' Solicitors, for a deposit of the sum of 250 in Court, which consent was afterwards withdrawn, and that all the Petitioners, except one, were absent from the Colony, and their affairs managed by an Attorney, who had to obtain the re- quisite sureties, which occasioned delay, but that on the llth of October, 1865, the bondsmen had attended the Master's Office, and were approved, and the Bond passed and entered as of record. That, notwithstanding this fact, the motion to rescind the Order giving leave to appeal was heard by Mr. Justice Molesworth, and by an Order made on the 13th of October, 1866, the original Order for leave to appeal was revoked. The Petitioners submitted that, having regard to the above cir- l.VJ CASES 1 Y COUNCIL. [L. B. .1. c. cu instance* r r. \..kin- the previous Order granting leave i - ; to appeal was erroneotiB. he security directed to be entered WDWTER '"'" 1( . v ''"' ()l ''l |-1 ' allowing leave to appeal having been entered p^^ into \Mth tli- approval of the Master, was still in force, and they pray. < 1 :' >r leave to appeal against lecree of affirmance, and also in mi tin- Order n yoking the Ord-r lor leave to appeal, offering to - .- <-unty for costs as might be dir. (! 1. The petition was heard eat parfo. Sir Hugh Cairns, Q.C., and Mr. Edmund F. Moore, appear* the Petitioners. Tin ir Lordships granted leave to appeal, upon terms of tin iVti- tioners lodging in the Council Office the sum of 300, as security for costs, and gave liberty to the Petitioners to apply to the Supreme Court at Victoria to cancel the Bond for security for costs of appeal, which had been already lodged there. Solicitors for the Petitioners : Hancock, Sharp, & Holes. j.c. EDOUAKD 8EBANDAT APPELLANT; I* 1 ' 1 ' AKD JjTw. JEAN SA1SSE EESPOSDI ON APPEAL FROM THE SUPREME COURT OP MAURITIUS. Mauritius, Law of Code Civil, Art. 1384 Commettant and Propose", definition of Matter and Servant Negligence Fire Liability fur Damage. By Art 1384 of the Code Civil, the law prevailing in Mauritius, it is pro- vided that " Let Matlres et let Commettantt [tont rtspontcMes] du dommage cause par leurs domettiquet etprepotet data let fonetiont auxqueUet ill let ont employes ; Held, that in order to make the " Commettant ** respon8il)le for damage occasioned by the negligence of the " Prepote," it is necessary to establish that the " J'refiotf," was acting " sous let ordres, tout la directions et la surveillance du Commetlat.t." * Present : THE LORD JUSTICE KNIGHT BRUCE, THE LORD JUSTICE TUBKEB SIR JAMES WILLIAM COL VILE, and SIR EDWARD YAUGHAX WILLIAMS. VOL. I] CASES IN THE PEIYY COUNCIL. 153 " Prepose" in Art. 1384, means a person who stands in the same relation J- 0. to the " Commettant" as " Domestique " does to " Maftre " namely, a person iggg whom the " Commettant " has instructed to perform certain things on his behalf. f ^^^ A. hired certain Indians, who were the heads of gangs of labourers, to clear a piece of land of weeds and brushwood at a job price, to be paid to SAI&SE. their gangs. Through the negligence of the persons employed, the sparks of a fire kindled on A's land, set fire to and burnt down a house in the imme- diate neighbourhood belonging to B. It was proved in evidence that A. interfered with the work, and directed the Indians where to work : Held, affirming the judgment of the Supreme Court at Mauritius, that A. was the " Commettant" and the labourers " Preposes," within the meaning of the Art. 1384 of the Code Civil, and that as the fire was occasioned by the men employed by A., he was responsible for their negligence, and liable to B. for the damage sustained by the fire. HIS was an action brought by the Respondent against the Appel- lant to recover damages, by reason of the Respondent's house having been burnt down through the negligence of persons em- ployed by the Appellant to clear his land of weeds and brush- wood. The Appellant owned a plot of land in the district of Plaines Wilhems, in the Island of Mauritius. The Respondent was pos- sessed of a dwelling house opposite the Appellant's land. On the 17th of October, 1862, the Respondent's house was set on fire, and burnt to the ground, and damage was done to the trees surround- ing it. The Respondent by his declaration alleged, that the Appellant employed divers persons, as his servants and agents, to clear his plot of land, and to cut down and burn the brushwood and thorn trees growing thereon, and well knowing how his servants and agents were employed, did not carefully look after and watch them while so employed ; that his servants' negligently and im- properly lit a large fire on the Appellant's land, very near to the umin road, and just opposite to the Respondent's house, and did not watch the same with due care, but allowed the fire to flame up in such a manner that the sparks and burning particles of the fire were carried by the wind across the main road, and set fire to the house of the Respondent, whereby the house was burned to the ground, and all the trees which surrounded the house were so much injured that they had all since perished, and much furniture, moveable property, and jewelry, was injured, destroyed, and lost, 1 : I CASES IN THE PfflVT COUNCIL. I. R. j. c. ftii'l tint tli- Respondent had suffered damages to the amount of 18C6 -'IK) dollar*. ApjM'llant pl.-ad.-d, first, that he was nt -uilty; secondly, u> ''^ II(lt ( ' m ply an y aervamt or agent to cut d.mn th- brushwood, th. r i tho land, nor did he give any order respect- ing th. burning or destroying of any brushwood or straw, or any- thing wlmtrvi-r then beini: >n the land; thirdly, that no fire was communirat' <1 from th- land to the house of the Respondent, as alleged ; and, lastly, that tin- Respondent had not suffered damage to the amount in the dfdaration im-ntioned. Issue was joined upon all these pleas. On the 30th of October, 1863, the case came on for trial in tho Supreme Court of Mauritius, before the Hon. Charles Farquhar Shand, Chief Judge, and the Hon. Barthekmy Gustave Colin, Act t Puisne Jud ;:'. The proceedings were commenced by the taking of the personal answers of the Appellant, who stated that he had employed job con- tractors to clear the plot of ground at a certain price ; that on the part of the plot where the burning took place, were five small sapans trees; that he gave no ord> r-; that the trees should be burnt ; that he was absent from the plot of ground during the whole of the morn- ing of the day on which the fire occurred ; that after the fire he had visit* (1 th.- plot of ground, and found that the sapans had been burnt, but \\<-r<- still standing; that the field where the fire took place was five-and-a-half feet below the road ; that the sapans were about the same height, and that there was no brushwood, and not much grass or weeds on the spot ; that there were no marks of fire between the sapans and a wall which separated the field from the road ; that the wall had been whitewashed three days previously, but bore no trace or stain of smoke ;'that the wind on the morning of the day when Respondent's house was burnt did not set from the burnt spot upon the Appellant's land to the Respondent's house. The Respondent called witnesses at the trial to prove the allega- tion in his declaration that his house caught fire from sparks and burning particles carried By the wind from the fire made in the A ppellant's field to the Respondent's house. The App llant also called witnesses to prove that he was not VOL. L] CASES IN THE PEIVT COUNCIL. 155 responsible for the acts of the labourers on his premises, by whose J. C. negligence the fire was alleged to have happened; that he was 1866 neither a,"Maitre" nor " Commettant " within the meaning of Art. 1384 of the Code Civil, but was merely a conductor operarum, and that the job contractors were the parties, if any, who were liable, being, by Art. 1793 of the Code Civil, responsible for the acts of the persons they employed. Both these job contractors, Joondine and Beesapa, who were Hindoos, and unacquainted with any other language than their own, were examined on their solemn affir- mation. Their evidence, however, did not shew a severance on the part of the Appellant from the control and superintendence of the work he had contracted with them to perform. The Supreme Court, after reviewing the evidence, gave judgment on the 23rd of December, 1863, for the Respondent for the sum of 5000 dollars for damages, with costs. The following was the material part of the judgment of the Court, as set forth in the reasons transmitted by the Judges with the record : " Article 1384 of the Code Civil, after enacting that every one is answerable for the damage caused by his own act, or by the act of those for whom he is responsible, proceeds to lay down that, * les maitres et les commettants are answerable, ' du dommage cause par leurs domestiques et preposes dans les fonctions auxquelles ih les ont employes' There must meet two conditions to throw upon the Master, or Cotnmettant, the liability of the servant, or Preposes, wrongful act. First, the wrongdoer must be a servant or Prepose. Secondly, the act must have been done in the exercise of the duty, work, or charge, committed or entrusted to such persons. For instance, a workman hired by the day or by the job would not make the person for whom he works answerable for the wrong he may have done, the damage he may have caused whilst working on some other work, or for somebody else ; but he would prima facie be answerable if the act done were directly .connected with the actual work he had undertaken. In this case, the respective position of Serandat and the Indian labourers seem to have been this. Serandat hired them to do a certain work. Whether they were to be paid per diem, or to receive a round sum for the job, is not clearly proved, but is perfectly immaterial in law ; they were not his regular domestic servants ; they were to be paid to clear a certain l.V, CASES IK THE PRTVT COUNCIL. [L. & I'i.-cv of land from weeds and brushwood. The contract seems to l-X l:.i\- I- !i ' 1,1- T. '1 Hi!" I,"t \Mtll ..IP- I 1 1'! 1. 1 Ii. Lilt ;ij.|.;t|. lit iy nith th- \\h-.l.- of th.-in. One of them states they were ail to hare ten annas I' r tin r, t lint the job was to be clone for seventy- liv.- dollar-. ivid.-d I*-t\\rt-ii tln-m. . til--d. that if a person hires a hackney coach from a livery-stable keeper, \\lnc-.-ats his own coachman on the box, and, if anaccid* nt happen, tin- livt ry->tallt- keeper is answerablo, and not tlx- hirer of the vehicle, for the oM-hii:an is the Preposeof tin- liv.-ry-stable keeper. It is also held that it a housi -holder employs a builder, and by the negligence of that workman an accident happens, the householder isan<\\'-ral>lt>. tor tin- workman is his Prepose. "NVh-tln-r tin- n be curried further, and be extended so as to niak.- tin- lir-t ployer not only answerable for th* n- L r liL r ' ncc of his immediate praepositua, but also of those who are appointed l>\ that pr/ppoVtwto act under him, or with him, is a vexota qu&stio, on which are to be found many conflicting authorities. But the true theory seems to us to be this, to create the reciprocal rights and liabilities of Conimettants and Preposes, and the consequences arising th- it from, it is necessary that the one i.e., the 'Commettant' should have chosen the other i.e., the * Prepose,' and that the former should have the power to give the latter orders and instructions relative to the businessor work confided to him ; and if, in the discharge of siu-h business or execution of such work, the 'Prepose' is guilty of negligence, whereby a third party suffers, then the ' Commettant ' is civiliter answerable, for he has to impute to himself the blame of having given orders without providing that they be duly exe- cuted, or of having chosen careless and negligent agents. And this is the case, whether the agents be domestic servants or be VOL. I.] CASES IN THE PRIVY COUNCIL. 157 connected with the principals by the contract known as locatio j. c. operarum. In fact, most of the authorities, and we think justly 1866 so, which govern cases of this description, arise out of contracts of SEBANDAT that nature. Vide Toullier, 11, No. 284 ; Doublet, Caps. Doll. p. 57, 1, 75 ; Eeygasse v. Plago, C. C., 28 June, 1841 ; Dalloz, 39, p. 426. The Roman law, which had applied the same principles to par- ticular cases without generalizing them, likewise made a party answerable who had chosen an inexperienced or imprudent agent. 'Non est facile,' says the law, 1 Dig. Lib. XLVIIL, tit. iii., I. 14, * tyroni custodia credenda : nam ea prodita, is culpss reus est, qui earn ei commisit.' And again, we read in the Inst., Lib. IV., tit. v., pi. 3, on Quasi delicto : ' Cum enim neque ex contractu sit adversus eum constituta hsec actio, et aliquatenus, culpse reus est, quod opera malorum hominum uteretur, ideo quasi ex maleficio teneri videtur.' Art. 1384 of our Code has generalized those prin- ciples, well known, however, and acted upon in France previous to its promulgation; and we think, without entering into the question whether the Master's liability can be further extended, that the above are the conditions required to make such Master liable for the quasi delictum of his immediate Prepose. A judg- ment of Mr. Baron Wilde, in England, has been quoted in support of the Defendant's views. The law of England, has certainly a good deal of similarity with our own on cases of this nature ; the [starting-point is the same, but it seems to us that the case cited, Hole v. Sittingbourne & Sheerness Railway Co. (1), is very far from supporting the view that the rule which applies to masters and servants does not find its application where the contract is one of locatio operarum, even supposing that the contract between a master and servant be not a locatio conductio operarum. That case was stated by the Lord Chief Baron to fall immediately within the opinion of Lord Campbell and the rest of the Court in Ellis v. The Sheffield Gas Consumers' Co. (2) ; and there the proposition, that in no case could a man be responsible for the act of a person with whom he has made a contract, was held to be absolutely untenable. Here it is not at all clear to us that the contract was with Joondine alone ; the evidence leads us rather to believe that the contract was directly with all the Indians ; and (1) 6 H. & N. 488. (2) 2 E. & B. 7G7. 158 CASES IN THE PBIVT OOUK' [L. B. J - c - if so, the mischief complained of would have been done, not by 1886 the contractors' workiuni, l.ut l.y tin- :. tractors themselves gfc^ AT there is more Joondine, supposing him to be the sole c< _* --inrily states that In- him*-ll' n-t lire to the bru i iiht-r hypotheM iv. th,- contractor alone would have done the wrong. Now was this burning of the brushwood part of the \\tuk uhk-h Joondine and the otlu-r Indians were employ* \\ c have no doubt it was, for it is in evidence that for some days pn-\ i' >u-ly the same operation of burning weeds and grass, so as to facilitate the clearing of the land, had been carried on ; the D< dant knew it, and suffered it to be done ; he did not check a mode of proceeding which, perfectly harmless, no doubt, when prop attended to and watched, might become dangerous if left at mercy of a set of idle, careless semi-barbarians. The Defendant may have a right of action, illusory, no doubt, against those Indians, but it is no answer to the Plaintiff to say, that the Defendant employed those men to do his work properly, and that they did not do so ; and if the rule of law be binding upon householder who employs a builder, an architect, men on whose skill and prudence he may a priori rely, assuredly must it be binding, and for reasons still more cogent, upon the proprietor who employs ignorant and careless day labourers. On the facts of this case, therefore, we have no doubt that, if it be proved that the Plaintiff's house was burnt down by or through the negligence of the Indians employed l>y the Defendant to clear his ground, the Defendant is in law liable to make good the damage proved to have thereby been suffered by the plaintiff. Another point of considerable importance in law arises here: On whom does the onus lie to prove that the fire arose from the negligence and want of care of the Preposts 1 In questions between landlord and tenant the Articles 1733 and 1734 of the Code Civil, shew very clearly that the tenant's negligence is presumed ; he must answer for the consequences of a fire, unless he prove certain facts pointed out in the Articles ; it is for him to prove he is in possession of the pre- mises he holds in lease ; but this is a very special law, like all those which militate against the equitable principle on which justice rests, that the Plaintiff must make out his case ; and accordingly it is sir ictissimi juris, and cannot be extended to cases not included VOL. I.] CASES IN THE PRIVY COUNCIL. 159 in the special enactment which created it. It has, therefore, J. 0. been held that the legal presumption which prevails in cases of 1866 fire as between landlord and tenant does not in cases of a similar SERAXDAT nature between neighbour and neighbour. Almost every decision gj^ of the Courts of France, and eertainly the opinion of the ablest Commentators of the Code, agree in that doctrine, and chiefly on the ground mentioned above, that the exception to the general principle was not contemplated by the law to extend beyond the case that has been provided for ; vide, inter alia, Merlin, Rep. verb. 'Incendie,' 2, Nos. 9 and 10. We are, therefore, of opinion, that the Plaintiff is bound to prove the fact that it is owing to the negli- gence of the Defendant or his Preposes that the fire was com- municated from the Defendant's field to his house. This part of the case is certainly less free from difficulty than the legal points that have been examined and disposed of above." The Court then proceeded to examine the evidence, and after going through the evidence said : " On the whole, we have come to the conclusion that the fire which destroyed the Plaintiff's house was communicated to it from the Defendant's field, and that this was due to the negli- gence of the Indians employed by the Defendant to clear his groun-1. As to the question of damages, it often is the case, and we think in this cause it is the case, that much heavier damages are asked than, judging from the evidence, a Court of Justice is warranted to give. We think that in awarding 1000 damages, with costs, we shall meet the justice of the case." The Appellant afterwards presented a petition to the Supreme Court for leave to appeal to Her Majesty in Council against this judgment, and leave to appeal was granted by the Supreme Court. After the judgment of the Supreme Court, the Appellant brought forward additional evidence upon affidavit to shew that the fire by which the Respondent's house was burnt down was caused by the Respondent's own servants ; and further, that the Appellant's attorney was taken by surprise at the trial with regard to the evidence adduced by the Respondent, which tended to shew that the fire on the Appellant's land had been resuscitated or fed between eight o'clock in the morning and the time when the fire broke out in the Respondent's house, and that, had he been aware VOL. I. 3 M 1 r', ) CASES IN THE PRIVY COUNCIL. [L. R. J. 0. that su.-h evidence won 11 bo produced, he could have call 1866 .-to prove the contrary. On the 9th of Frl-mary, l>;i. th-- AJ.J. llant moved for anew trial, on the ground uf mat* -rial , set fortli in the above afti lavit, having \>->n nl.tained since tin- judirm nt of the L' of December, 1863, and on i -1 of Miipik : l-ut tin- Court. upon reading the affidavits on both sides, refused the mot ion \\ith costs. Tin- Appellant thru pr< s -nted ;i p tition to the Supreme Court, praying tor l.;i\. to appeal against tin- ju Ijiw -nt of the 9th of r.-l.iu.rv. lsi;i. \\hieh tli.- Court, u[K>n the 29th of 3Iar.-h. 1- refused, holding that in point of form the effect on the merits of the case wouM carry all subsidiary proceedings, and that it was useless to multiply appeals. The present appeal was brought against the judgment of the Supreme Court of the 23rd of December. 1^'.:;. an 1 also aga the Order of the Court ma Icon the IHh of 1-Vl.ruary. l>r,|. \\h,-reby the motion for a new trial as dismissed \\ith ro- Mr. Bovill, Q.C., and Mr. diaries E. Pollock, for the Appellant : It may be assumed that the Respondent's house was destroyed by the sparks from the fire on the Appellant's land, but that alone does not make the Appellant liable. He is not respoii tip- acts of the job contractors employ, d l.y him. or for the negligence of their servants. The Code Civil is thu law in force in M and the parties must be governed 1>\ it< provisions. No doubt by that Code, as by the English law, a 31 liaMn for the negli- gence of a servant in his employ. Art. 1384 provides, that " Les maitres et les commettants" are responsible for the damage "cau&S par leurs domestiques et Preposes dans les fonctions auxquelles Us les ont employes" but to make the Appellant liable for the negli- gence it must be shewn that the Prepose acted " sous les ordres, sous la direction, d sou* la surveillance du Commeitant," Dalloz, Jur. Gen. verlo " Responsabilite" To make the Appellant responsible for the damage, that position must be established by the Respondent, who here charges the negligence, and on whom the onus probandi lies. Now, there is no proof of any act of negligence on the part of the Appellant. The negligence, if any, was that of the contractors, YOL. I.] CASES IN THE PEIVY COUNCIL. 1G1 or those employed by them on the job. The Appellant had parted J. 0. with all control and superintendence over the work and over the con- 186G tractors, by whom the clearing of the land was to be performed. The BERAXDAT question, therefore, turns upon this point, did the Appellant stand gj^g. in the relation of " Commettant," and the Indians "Preposes," within the meaning of Art. 1384 of the Code Civil ? The relative position of the parties was not properly understood by the Court below. The term "Commettant" properly translated means "Employer," and " Prepose," " Foreman or Overseer," and the French authorities es- tablish this definition : Sirey, Comms.by Gilbert, note 32 (Ed. 1855). Here the contractors were paid a fixed sum to do certain work, and were the sole masters of the work, and the employer is, therefore, not responsible for the negligence of the contractors. This is illustrated by the following cases in the Cour de Cassation, referred to in Dalloz, Jurisprudence . General, pp. 372-3 : Teston v. Salles and the Mining Company of the Grand Combe ; Northern Railway of France v. Boisseau ; Administration of Forests v. Martin, Dalloz, Jur. Gen., Part. I. p. 49, I860, where a fire was caused in a Forest by the negligence of a Woodman, and he alone was held liable. So in the case of a fire from the negligence of a Cooper employed in a public warehouse : Dalloz, Jur. Gen. Tom. xxx. verbo "Hiring," ch. 3, sec. 6, p. 415. The labourers here do not answer the description given by Sirey, Codes Annotes, Tom. i., p. 665, as " Ouvriers" The English law, in respect to the liability of a Master for acts of his servants, is analogous to the Art. 1384 of the Code Civil. The rule is laid down in Addisons Treatise on Torts, pp. 340-1 (2nd Ed.), that the party himself, who actually inflicts the injury through his own negligence, is responsible for the injurious consequences of his default. A person contracting with another for the performance of certain work, the work being proper to be done, and the contractor a proper person to do it, the employer is not liable for injuries caused by the negligence of the contractor. In Butler v. Hunter (1) it was determined that an employer is irresponsible for acts of his agent, whether contractor or otherwise, exercising an independent employment, provided the party was well chosen as being reason- ably fit for such a position. Reedie v. The London and North- (1) 7H. &N.826. !;_> CASES IN THE PRIVY COUNCIL. [L. R J. Q Wetter* Railway Co. (I); Hole T. The Sifting/bourne & Sheen- \-->; new Railv'' \\ IP re a party comes to his jmrtii-ular situs by re* 8011 f the employment, the employer is only responsible if he could have abated the injury or nuisance between the wrou. act commenced and the damage resultant therefrom : Gandy T. J tiller i 1 a contractor selects , work men the employer is not liable : Peachey v. Rowlands (4) ; Overton v. Freeman (5) ; Knigld T. Fox (G) ; Steel v. South-Eastern Railway Company (7) : and it makes no difference if the labourer employed is paid by the j Sadler v. Henlock (8). We submit, moreover, that the weigh evidence was against the finding of the Court below that the fire took place through negligence of the contractors, and that, there- fore, there ought to be a new trial. We do not question the Order of the Court made on the motion for a new trial, and abandon that part of the appeal. Mr. Anderson, Q.C., and Mr. F.Phillrick, for the Respondent : In point of law the Appellant, as held by the Court below, is responsible for the negligence of his servants in the course of their employment by him : Code Civil, Art. 1384. The Appellant must be consMerel as the " Commettant " or Master of the In-lians employed by him to clear his land of the weeds and brushwood, and they, as his " P reposes" or servants, the proper received defi- nition of those terms: Toullier, vo. " Commettans" Table General; and he was liable for the damage caused by their acts in dis- charge of the duties of their employment. The evidence shews that the Appellant had not parted with the control of the works ; he superintended the men, and ordered them where to work. This fact distinguishes the cases cited from Dalloz, relied upon by the Appellant, which were cases of contract. It is said that the Code Civil is the same as the English Law. It may be so, but that Code is certainly more comprehensive. The Code Civil is precise : Art. 1384 enacts, in terms, that every person shall be answerable for the damage caused by the act of those for whom he is responsible. " Le (1) 4 Ex. 244. (5) 11 C. B. 867. CO 6 H. & N. 488. (6) 5 Ex. Ti'l. (3) 33 L. J. (Q.B.) 151. (7) 16 C. B. 550. (4) 13 C. B. 182. (8) 4 E. & B. 570. VOL. I.] CASES IN THE PRIVY COUNCIL. 163 Mattres-et Commettants" are declared to be responsible for damage J. C. caused by their " domestiques et proposes dans lesfonctions auxquefles 18G6 Us les out employes." Here the Appellant was the Master, or " Com- SERANDAT mettant," of the Indians employed by him to clear his ground, and they were his servants, or " Preposes" In the Court below it was contended by the Appellant that his position was merely that of hirer of the services of these Indian labourers as conductores operarum ; that in fact they were inde- pendent contractors, and that neither could be a " Commettant " nor these men " Preposes," within the meaning of Art. 1384 of the Code ; but our contention is, that the Appellant was Master of these men, and as such the " Commettant ;" and they, therefore, were his " Preposes" Even assuming the contract to be a locatio operarum, the Appellant is still liable for the consequences of the negligent acts of his contractor. He selected and paid the Indians ; whether they were paid by the piece or by daily wages is immaterial, and their relationship toward their employer is not affected thereby ; indeed the Appellant personally superintended and directed the men when present. The liability imposed by the Code is not con- fined to servants, " Domestiques? but extends to Preposes, namely, to those who are put forward by the employer and entrusted by him to do some particular work or to fulfil some particular function (prtepositi), although they may not be "Domestiques." Now, the two Indians were admittedly selected and engaged by the Appellant to clear his ground. They were his " Preposes " for the execution of that work ; and if in the execution of that work they used fires to burn the rubbish and weeds, as it is clear they did, with the knowledge and sanction of the Appellant, he is liable, both on authority and principle, for the damage occasioned by such act. It is so by the English law. Thus in Turberville v. Stampe (1), the Defendant's servant had lighted a fire in his master's field in the due course of husbandry, but so negligently kept it that it extended to the Plaintiff's heath and consumed it, and the Court held that the Defendant was liable ; and that case has been fol- lowed \yyFilliter \. Phippard (2); Vaugliam v. Menlove (3); BlaiTcie v. Steinbridge (4) ; Randleson v. Murray (5) ; Dalyell v. Tyrer (6) ; (1) Ld. Ray. 264. (3) 3 Bing. (N.C.) 468. (5) 8 A. & E. 109. (2) 11 Q. B.347. (4) 6 C. B.(N.S.) 894. (6) 5 Jur. (N.S.) 335. !! QiBBB IN TIM: I-KIVV COUNCIL. J. C. ' \. /:'V, >ts ly th<- ci\il law : Domat, C'. I- . i;. 1 1 .. I tin- same principl \MI- Tiibimul in th>- 8 Jin. <** W" Quebec Fire Assurance Comp<> K Louis (2); 27* rn Co. of Canada \ . /.'/ nnant v. 2Vic EarJ of Glasgow (4) ; Jfa/ &M/L v. Mackintosh i / ' : Nisbett v. Dwson The cases on this point are collect" 1 in .S//i/A on " Tin- Law of < : i." p. 1 : :: . The case of Reedie v. The London & North Western Railway Co. (8), ivli.-.lon l-y th" \ \>\>.'\ hint, does not aj.jily. l..r there the relataonohip of nd Servant did not exist between icinhmts and the men \\lio actually did the wrongful Jict. i taking the Appellant's case on the ground he jmts it, ns the n^ gent act directly arose in performance of the duty contract e i the App -llant, as priiicipal, would be personally liable. In Ilole v. Sittinglourne & SJieei^ness Railway Company ('' . I'M; .n Wtlde says, the loss there arose "from i g the th ordered to be don- :" ami. therefore, as well by the principles of Common Law of England as by terms of the Code itself, the Appellant is ri for the act of his Preposes in the in gent making or watching the fire on his land. No fresh trial ought to be granted on the ground of ne\\ deuce having been found. The Court of Chancery refused leave to file a supplemental bill in the nature of a Bill of review, where, as in this case, the proper means of searching for the evidence had not been used previously to the original decree: Bingham v. Dawson (10). Judgment was delivered by 1866 SIR EDWARD VAUGHAN WILLIAMS: Feb. 26. This was an appeal against a judgment of the Supreme Court of Mauritius, and also against an Order of that Court, whereby a (1) 3 C. B. 220 & 240. (fi) R. M. & Y. 1048. 7 Moore's P. C- Cases, 286. (7) III;. M. & Y. 073. (3) 1 Moore's P. C. (N.S.) 101. (*) 4 Ex. 244. (4) 2 Court of Scss. Cas. 22 (3rd (9) 30 L. J. (Ex.) 81 ; 6 H. & N. Ser.). 488. (5) 2 Court of Sess. Cas. 1357 (3rd (10) Jac. 243. Ser.). YOL. I.] CASES IN THE PEIVY COUNCIL. 165 motion made by the Appellant for a new trial of the cause in J- 0. which the first mentioned judgment was pronounced, was dismissed 1866 with costs. SKRANDAT On the argument before us, the latter branch of the appeal was, very properly in our opinion, abandoned by the Appellant's Counsel as hopeless. The action was brought by the Respondent against the Appellant to recover damages for injuries sustained by the Respondent by reason of his house and furniture having been destroyed through a fire kindled on the Appellant's land by labourers employed by him to clear the ground for agricultural purposes, which fire was so carelessly made, that sparks and other burning particles were carried over and scattered upon the Respondent's premises, thus causing the fire which was the subject of complaint. On the evidence adduced at the trial the Court below came to the conclusion that the fire which destroyed the Plaintiff's house and furniture was communicated to it from the fire kindled in the Appellant's field, as alleged, and that this was owing to the negli- gence of the men employed by him to clear his ground. And we think the Court was fully justified by the evidence in coming to this conclusion. The only question, therefore, which remains is, whether the Appellant was responsible for the negligence of the men so em- ployed by him. The Respondent grounded his claim on the Article 1384 of the Code Napoleon (which is the prevailing law of Mauritius), and which is in these words : " Les mattres et commettants \sont respon- sables] du dommage cause par leurs domestiques et preposes dans les fondions auxquelles Us les ont employes." The Respondent contended that the Appellant and the men he employed stood in the relation of Commettant and Prepose within the meaning of this Article. It is necessary, therefore, to ascertain what is the meaning of the word "Prepose" It appears from Napo- leon Landaiss Dictionary that the meaning of the word "Prepose" is, " qui est commis a quelque chose, qui en a la garde, le soin ;" and in the same Book the meaning ascribed to the verb "preposer" is " commettre, etdblir quelquun avec pouvoir de faire quelque cliose ou d'en prendre soin" And accordingly we think that, subject to the 1C6 CASES IN Tin: PRIVY COUNCIL. j.O. ijualiiicution hereafter to be mentioned, tin word "Prtyoie' in tin- ]<, Article- means substantially a person who stunts in the same rela- tion to " OommeUatU n ** "Domestique" does to " Maitre, n tX a person whom tin- " Cumin* ((>int" has cnti u-t- ! ! |>< r!"rm oitain tilings --- on lii> In-half. Tlii* roiMru.-tion ( .f tin' word appears to be sup- ported by a passage in 7W/:, Hep., Tom. xx\i\. \>. 1 1". No. uhere he says, " Les domeatiques sont une class* parliculilre de Tin' Fivnch la\\yf tin- Artirli-, havr ijualili.- 1 fcht fcbofe construction ly tin-.; ihat in onlrr to niakr tin- Coinnn-ffanf n-spmsihli' for tin- n- -licence of the Propose, the latter must be acting "sous leg ordre*, sous la direction < t hi sun-ei'Ilnnce du Comm>tttint." This <-t rine is certainly sup|K)rtcd by the Frt-nch authorities to \\hirh we wer i ly the Counsel for th.^ Aiiju-llant, vi/. Dalloz Repertoire, tit. u Re- sponsaliltl' ," ch. iii. set. '2. artirl .'., an\hi<-h \\ill support the declaration, viz., servants and agents acting under the directions, orders, and surveillance of the Defendant. For these reasons, their Lordships will humbly recommend to Her Majesty that the judgment of the Court below be affirmed, \\iih costs. Solicitors for the Appellant : ParJfe & Pollock. Solicitors for the Respondent : Morris, Stone, Townson, & Morris. VOL. L] CASES IN THE PRIVY COUNCIL. 169 HEE MAJESTY'S PEOCUEEUE AND I J. c.* ADVOCATE-GENEEAL T wee AND Feb. 15. 16, 17. VIEGINIE BEUNEAU EESPONDENT. ON APPEAL FROM THE SUPREME COURT OF MAURITIUS. Mauritius, law of Bastard Natural niece Code Civil Irregular succession Arts. 765, 766, construction of Descendants Posterite. The Code Civil of France, which is in force in the Island of Mauritius, Liv. III. Ch. IV. tit. i. " Des successions irregulieres," Art. 765, provides as follows : " La succession de I 'enfant naturel decede sans posterite est devolue au pere ou a la mere qui Ta reconnu ; oupar moitie a tous les deux, s'il a $e reconnu par Ftm et par Tautre " and Art. 766 provides, " En cos de predeces des pere et mere de V enfant naturel, les biens qu'il en avait recus, passent aux freres ou soeurs legitimes, s'7s se retrouvent en nature dans la succession ; les actions en reprise, s'il en existe, ou le prix de ces biens alienes, s'il est encore du, retournent egalement aux freres et soeurs legitimes. Tous les autres biens passent aux freres et sceurs naturels, ou a lews descendants :" Held, that the word " descendants " in Art. 766, is not limited to legitimate descendants, so as to preclude the natural children of a natural brother suc- ceeding to their natural uncle's property : Held, further, that there is no restriction with respect to "the word " de- scendants " in Art. 766 : that natural children are " descendants n within the meaning of Arts. 765 and 766, which constitute a special law for determining the succession of natural children dying without posterity ; and that "posterite" and "descendants" in those Articles are convertible terms. B., an illegitimate child duly acknowledged, survived his parents, and died domiciled in the Island of Mauritius, of which he was a native, intestate, leaving self-acquired property. He had no legitimate relations, but had two nieces, illegitimate daughters of an only illegitimate brother, who pre-deceased him, by whom they were duly acknowledged, as also by B. One of the nieces died shortly after B., having previously constituted her sister Leyataire uni- versette. The Government claimed the succession of B. : Held, that the sur- viving niece was entitled to succeed to B.'s property in preference to the claim of the Government on the ground of bastardy. General principles by which Courts are to be governed in construing the Code Civil, as derived from the decisions of the Cour de Cassation and the leading Text writers of France. JL HE question in dispute in this appeal related to the succession, or right, to a considerable property which belonged to Pierre * Present : THE LORD JUSTICE KNIGHT BRUCE, THE LORD JUSTICE TURNER, SIB JAMES WILLIAM COLVILE, and SIR EDWARD VAUQHAN WILLIAMS. VOL. I. 30 To CASES IN Tin: PRIVY f [L. B. in'.i't. who died intestate at Mauritius, of which Island he was i>...; a native. The Resj-ri ! nt claimed each property, accordin. tli-- law in torn- in Mauritius, as to one J iu her own r pjjjj' 111 ? as an ill- L'itinuit.- hut 'Inly recognised niece of the intestat r as to the other moiety, as u Ltgatair* universeUe," under the "Will ''___' of her sister, who was also illegitimate, and duly recognised, On the other hand, the Appellant, upon the part of the Government of the Colony, claimed the whole succession, in consequence of the intestate Imvin- \< \\ \\ 1- ultimate survivor of his family. The Code Civil is the law in force in Mauritius. Tin- Ar: of that Code which especially applied to the question raised by suit and upon the appeal, and which were relied on, were th< lowing : Art 338. " L'enfant naturel reconnu ne pourra reclamer let droiis (Cenfant I'yitime. Les droits des enfant* naturels seront regU au tit re des successions" Art 723. " La loi regie Tordre de succeder entre les Keretier* Ugir times; a leur dtfaut, les biens passent aux enfants naturels, en- suite a Tepoux survivant ; et sil yn a pas, a Tetat? Art 756. " Les enfants naturels ne sont point heri-tiers ; la loi ne leur accorde de droii sur les biens de leur pere ou mere decedes que lorsquils ont ete legaletnent reconnus. Ette ne leur accorde aucun droit sur les biens des parents de leur pere ou mere" Art 757. " Le droit de T enfant naturel sur les biens deses pere ou, mere decedes, est regie ainsi qu'tt suit : " Si le pere ou la mere a laisse des descendants legUimes, ce droii est d"un tiers de la portion hereditaire que Ten/ant naturel aurait, eue s'il eut ete legitime ; U est de la moitie lorsque les pere ou mere ne -sent pas de descendants, mats bien des ascendants ou des freres ou saeurs; H est des trots quarts lorsque les pere ou mere ne laissent ni descendants ni ascendants, ni freres ni soeurs" Art. 758. " L'enfant natural a droit a la totalite des biens lorsque tes pere ou mere ne laissent pas de parents au degre successible." Art 759. " En cos de predeces de T enfant naturel, ses enfants ou descendants peuvent reclamer les droits fixes par les Articles precedents." Art. 7' 1.3. "La succession de Tenfant naturel decede sans po*' est devolue au pere ouala mere qui fa reconnu ; ou par moitie, a tous les deux, sil a ete reconnu par Tun et par fautre" VOL. I] CASES IN THE PRIVY COUNCIL. Art. 766. " En cas de predeces des pere et mere de Tenfant J - c - naturel, les liens qu'il en avait requs, passent aux freres ou sceurs 1866 legitimes, s'ils se retrouvent en nature dans la succession: les HER actions en reprise, sil en existe, ou le prix de ces Hens alienes, sil P B ^^U est encore du, retournent egalement aux freres et sceurs legitimes. R v ; Tons les autres liens passent aux freres et sceurs naturels, ou a leurs descendants" Art. 767. "Lorsque le defunt,ne laisse ni parents au degre suc- cessible, ni enfants naturals, les liens de sa succession appartiennent au conjoint non divorce qui lui survit" Art. 768. "A defaut de conjoint survivant,la succession est acquise a TEtatr The facts were these : Pierre Bruneau died in February, 1863, domiciled in Mauritius, intestate, and without leaving any parent, widow, or issue surviving him. He. was one of a family of four illegitimate children, namely, himself and another son named Urbain, and two daughters, all of whom had been acknowledged as such by their parents. Both the two sisters of Pierre Bruneau died in his lifetime without leaving issue, and his brother, Urbain Bruneau, also died in his lifetime leaving two illegitimate daughters, the Eespondent, Virginia Bruneau, and Elodie Bruneau, both of whom had been acknow- ledged as such illegitimate daughters by their father, and by their uncle, Pierre Bruneau. These two natural nieces of Pierre Bruneau were living at his de&th. One of them, namely, Elodie, died shortly afterwards, leaving Virginie, the present Respondent, her universal legatee. Pierre Bruneau was possessed at his death of considerable property acquired by himself; and upon his death the Curator of vacant estates at Mauritius was placed in official possession of the estate of the deceased, in trust for the person or persons beneficially entitled thereto. On the death of Pierre Bruneau, the Respondent claimed, in her own personal right as his natural niece, and also in right of being the universal legatee of her deceased natural sister, the succession to his estate ; but in this claim she was opposed, first, by the Curator of vacant estates ; secondly, by the Appellant, in his official capacity as Procureur and Advocate-General, acting on behalf of Her Majesty ; and, thirdly, by one Sidonie Bruneau, 3 02 I :_ CASES IN THE PRIVY COUNCIL. [L. B. j. c. "ho *ko claimed to be a imturul niece of Pierre Bruneau, and as 1866 8Ucn benrtirially -milled to the succession in quest: . Win Ti-iiiion a suit was commenced in the Supreme Cou MAJESTY Mauritius ly tho. Respondent as Plaint irt' against the Curator, tln> Appellant and Sidonie Bruneau as Defendants; an-1 tii.- J ic ' Respond-ill th- -r. ly claimed to be let into possession of the estate. The cause was heard before tho Chief Judge, the Hon. Charles Farquhar Shand,and the Hon. Mr. .lust ire Colin, \\hni tlir 1>. art of the CodeCivil. We have unfortunately no decisions of the French Courts to assist us here, as the matter has never come before them for determination. The real question, however difficult of solution it may be, lies in a narrow compass. The only point is, to ascertain the meaning of the word ' descendants,' as used by the Legislature in the close of Art. 766 of the Code Civil. Does that word mean only legitimate descendants of the natural brothers and sisters of the bastard who dies, having survived his father and mother, or does it include also the illegitimate descendants of the brothers and sisters ? If the former is the meaning of the article, the door is shut against the claim of Virginie Bruneau ; if the latter, she must gain her case. The question which we have to consider appears to be, therefore, simply this : What meaning did the framers of the law attach to the word * descendants ' when they used it in Art. 766 of the Code ? With the policy of the Legislature we have nothing to do. When we record the commentaries of some of the eminent writers in this branch of the Code Civil it may be thought that occasionally VOL. I] CASES IN THE PRIVY COUNCIL. 173 the individual feelings of the author have exercised some influence on his conclusions. In truth, in dealing with questions of this nature, it is quite possible that the impressions of the moment may somewhat influence the judgment. If we allow our senti- ments of respect for the marriage relation and the interests of society to predominate for the time, we are apt to look with dis- favour on the claims of illegitimate children. On the other hand, if we reflect on the sad position in which such offspring are frequently placed, by no fault of their own, we may feel inclined to lean to that interpretation of a doubtful law which might be most bene- ficial for their interests. It is our duty to divest ourselves, as far as we can, of all such feelings. We must also endeavour to throw aside all impressions derived from all other legal systems, with which we may be more or less familiar, and consider the question as one simply of interpretation. We have to ascertain the legal meaning of the word ' descendants ' in the Article in question. By the old law of France, prior to the first revolution, natural children, except in a few districts of the Kingdom, had no right of succession, even to their father and mother. All they could insist for was an aliment, or an allowance for their support. The law of the 12 Brumaire, An. 2 (1794), went to the other extreme. It put them, in respect of succession, on the same footing as lawful children * Leurs droits de suc- cessibilite sont les memes que ceux des autres enfants' (Art 2). The authors of the Code Civil appear to have studiously followed a middle course. While they enacted that an illegitimate child should not have the status of an heir, or be admitted as a member of the family as to rights of succession generally, a certain portion of the property of his parents, varying in amount according to cir- cumstances, is awarded to him when he is acknowledged as their child ; but this portion is always less than he would have received had he been an heir, *. e. of lawful birth. Various other regula- tions are introduced, and the succession of illegitimate children is classed among the * Successions irrdgulieres ' and the rules on the subject, form the first section of the chapter so entitled (Code Civil, liv. III. c. iv.) The object of the great men who framed the Code was to preserve the respect due to marriage and the rights of legitimate children, and, at the same time, to make some provi- J. C. -1866 HER MAJESTY'S PaOCTBEUB c. BRUNEAU. 17! CASES IN THE PRIVY COUNCIL. J.O. is,;,; -TT' I'i. ' '.i i. r. sions for tin- unhappy offspring of irregular connections. It was no easy task to harnioni/.- t\\.> ri_'hts of succession sowi tin- Artiel.-s ,,f this duijit.-r of the law have given rise to niueh discussion, and to a wide difference of >; among authors of reputation. Among other enactments in this Chapter of the law, wo have the Articles 765 and 766. 11 of ill- present case rests, as we have seen, in the meaning to be given to the word 'descendants' in the latter Arti.d . Now, in ascertaining the meaning of a law, the precise words of the text mu-t, in the outset, be carefully considered. I n it is to be remarked that the word * descendants ' grammatically in.-ludes loth legitimate and illegitimate In the t.-xt tlio words stand without limitation or qualification. Of course 1 , there is no question here except as to natural children who have been duly acknowledged ly their parents. All the persons of th- two p !!- -rations of th.- Jlnineau family have been so acknow- ledged. Accordingly, the < 'laiinant is \\ithiu the class of natural children to whom the rL r lit of succession is open, if the law < wise does not shut her out. The word in the text having thus, graminati.-ally, extension enough to include the Claimant, let us in-xt iinjuire if it has a legal meaning so restricted as to exclude her. Under the ancient jurisprudence of France, when, as we have seen, there was, speaking generally, at least no right of suc- cession open to bastards, the term 'descendants' occurrini: in tin- law would naturally enough have been confined to lawful offsj but, under the intermediate law which prevailed l>.-twe.-n 17:' ! and the promulgation ( f this part of the Code Civil in 1803, while mate and illegitimate children were on the same footing as to - of succession, the same interpretation could scarcely have been given to the \\.-rd 'descendants,' standing alone in matters of succession. Well then, when the framers of the Code Civil were at work, the term 'descendants? if no qualification were added to it, would have had the broad, and not the narrow meaning. If they used it without limitation, is it not a fair and reasonable presumption that they used it in the ordinary l--_ral sense of the epoch at which they wrote? No doubt, in the parts of the Code Civil which regulate the succession of legitimate families and of heirs, it may reasonably be in; VOL. L] CASES IN THE PRIVY COUNCIL. 175 that the word ' descendants ' would naturally include only law- J - c - ful children and their lawful progeny ; but here we are in a different field of inquiry altogether. We are considering the HER right of succession under the chapter of ' Successions irregulieres, in a family where all parties are illegitimate. Can it be supposed that, in framing the section of the Code which deals with the suc- cession of bastards, the Legislature could have used the general word ' descendants,' standing by itself alone, as meaning only legitimate offspring, and not also including illegitimate descend- ants. We think that this would be a presumption scarcely admis- sible. But again, in the section itself the framers of the Code had the two classes of persons, legitimate and illegitimate, before their eyes clearly distinguished ; the succession, according to its origin, is thrown into different lines of descent altogether, the legitimate and the illegitimate. The distinction of legitimacy and illegiti- macy is prominently before the Legislature in the very section itself. Had the framers of the Code intended that the succession given to the illegitimate line should, failing natural brothers and sisters, immediately change its quality and pass only to lawful children, we do not think they would have used the mere general words 'leurs descendants,' following immediately after the words freres et sceurs naturels.' Had they intended that the property should go only to the lawful descendants of the natural brothers and sisters, we think they would have said so, and would have added the word ' legitimes' to 'descendants' They have not done so. But we are now called upon to do this for them, for that is pre- cisely the result of the argument for the Crown. It contends, that the Court should virtually add the word ' legitinies ' to the end of the Article, and interpret it exactly as if that word had its place in the text. It does not appear to us that we 'have any authority for so doing. While we are alluding to the form in which this article of the Code is drawn, we may notice another argument in favour of the Claimant's views, which was put forward during the discussion. It was stated in this way : In the first section of the Ait icle a certain part of the succession is given ' aux freres ou sceura I' ij dimes' Nothing is said of their 'descendants' In the second section of the Article, the remainder of the succession is given ' aux freres et sceurs naturels^ and the words are added 'ou a leurs CASES IN Tin: 1'KIVY COUNCIL. J- C. descendant*. \\ hv tin- 'nlV-renoe; why tin- marked contract in 1 s "'- the two sections ? The answer was this : I n 1 1 1 > former case, a- KM: right of representation was op. n t.. th< ' descendant*' of the la\ ^JJJ^ l,r..ihei". and n'sters (Code Civil, Art 7 IL'). it u as unnecessary t . the \M>rds 'ou a burs descendants;' \\hil- in tin- latter case, t fcraiKAi . .... I- ing no right the illegitimate descendants of either class of lateral-, they would not succeed except by special n of the law. Uut we think the arirunieiit on the words of the may be put in this way : In the first 8ectin the right of succession is to stop with the legitimate collaterals, and not to go to their h in the latter, it is to go to the illegitimate collaterals and their de- scendants generally, whether legitimate or illegitimate. Sj> provision as to descendants is contain- d in the latter section, which regards illegitimate succession alone; it is not to stop at the first degree. There is no risk of introducing bastards among a 1< _ mate family ; the succession is that of a bastard, and a bastard line is called to succeed. In the former section, which has to do solely with the succession of legitimate parties, the succession is to stop at brothers and sisters; their descendants are not called in default of their own existence. This view would appear to be con- lirmed by the decision quoted at the Bar, and reported in Sirey, S. V. 53, 1, 481. It was there held, ' Que k droit de retour < par TAri. 766 en faveur des freres et soeurs legitimes, et T enfant nature! en cos de predeces de ses pere et mere, ne doit pas etre etendu, aux descendants des freres et saeu/ tes' The reasoning of the Court in support of its judgment, points out very clearly that there is no legal connection between the bastard and the l.-^iii- mate connections of his father; that the enactments of Art. 7'i'i VOL. L] CASES IN THE PRIVY COUNCIL. 177 are entirely exceptional, and that in the Article itself there is a marked contrast between the limited succession given in the first part to legitimate collaterals, and the wider and broader succes- sion opened to the natural collaterals and their descendants. The views which we have indicated above necessarily point at the suc- cess of the Claimant, Virginie Bruneau, in this case. But we are quite aware of the formidable arguments on the other side. The great stress of the case of the Crown is laid on Article 756 of the Code, particularly on the words ( la loi ne leur accorde de droit sur les liens de leur pere ou mere decedes' This, it is contended by the Crown, and the Commentators who support that side of the question, is a fixed principle in the law of illegitimate succession, enunciated in the opening and leading section of the chapter, and pervading the whole enactments of the law. If this view of the Article is correct, there is of course an end of the case. But it appears to us that in framing Article 756, the Legislature had in view the existence of legitimate con- nections of the parents of the bastard, between whom and the I'.istard the law was solicitous that no connection should be estab- lished. The law, therefore, provided that a bastard should not be intruded as an heir or a proper member of the legitimate family. It appears to us that in Article 766, this general rule is derogated from, and is so far set aside. The whole argument is entirely exceptional. This was very well pointed out in the argument for the Claimant. In violation of one of the fundamental rules of the Code (Art. 732), that neither the nature nor origin of the property left by a bastard, whose parents have died before him, shall be divided according to the source from whence it sprung. It is ordered that everything derived from his parents shall go to their lawful children, his legitimate brothers and sisters. Everything else shall go to his own illegitimate brothers and sisters and their de- scendants. The whole of the law, in both its parts, is opposed to the ordinary rule of succession. It appears to us that the general prin- ciple of Article 756 is set aside, and in the face of it natural brothers and sisters are called on to succeed ; and their descendants, without limitation. No one can doubt that Article 766 is so far at least an exception to the general principle that a bastard shall have no right to the property of the relations of his father and mother, for J. C. 1866 HER MAJESTY'S PBOCUBEUU v. BRUNEAU. 1 7 v CASES IN THE PRIVY COUNCIL. [L. R. it . \i ; - ! \ .:! > a ri/ht ! succession to illegitimate brothers and I860 M-I. :-. un i tii. ir d- -c.-ndanN. tip- iillim.il-- CfOt itiOB in thi* MM K ing, what persons does the word 'descendant*' include ? 1 argued, that if the general word ' descendant*' is not read 'tisaeami- an/8 h'yitime*,' we shall arrive at the singular result, that while a bastard grandchild could not succeed to his grandfather, a bastard nephew or niece could succeed to an uncle. To which we must answer, that if it be law that t h-- grandchild in the case supposed is always excluded, wo must take the law as we find it, what t may be thought to produce in its results. But :> all. i- it more extraordinary to admit the succession of an ill- -_ r iti- mate nephew, where there is no conflict, not even contact, i; may be allou. d the expression, with legitimate relations, than to admit a bastard son to introduce himself into a lawful family, and take his place, though not an heir, among those who are to share t he succession of the father and husband ? The whole succession of illegitimate children is exceptional, and consequently the ordi- nary argument from anomalies, and the results of the law, are less ap} than when we are considering the rules of legitimate succession. But even there, as every one knows, anomalies, v startling anomalies, are by no means wanting. The plain object of the Code was, we think, to benefit illegitimate chil-i according to certain rules, with this general caution, that they I not to be classed among heirs, or be introduced as such into legi- timate families. Again, it was argued that all the leading Com- mentators, even Chabot himself, the champion, as he was styled, of the riirhts of the Claimant under Article 760, hav- held, under a previous Article of the same Chapter (Art. 759), that 'descendant* means only legitimate descendants. Jt i- true that Chabot and some others are of this opinion, but on the other side we find many names of great reputation, such Ddvincourt, Maieville, DeHaporte, /'''n the question raised by M. Camlaetre*. i-v, the Code immediately preceding Article 766, vi*. 7n^ Article 70,"), it \\ill l>o noticed th.it the word t potUriU' I*Bocrurii ftpplied t the descendants of a bastard, occurs without any q cation whatever. It does not appear to us that then- is in the language of the Code any real difference between the meanin ' posterity' and 'descendants' No one seems to have doubted the term 'potttriU' here includes illegitimate children. The Crown concedes that all the Commentators are oppose restriction of the meaning of'posterite 1 ' to legitimate children, hut alleges that the term ' descendants,' like the word ' ascendants' when found alone in the Code, invariably means legitimate relations. Thi> may l>e true in the parts of the law which treat of legitimate successions; but if this were invariably the case, why, we think, it may be Jairly asked, has the Legislature added the qualification of 'I'jUimes to the word 'descendants? occurring in Article 7." this very chapter of Irregular Successions. If 'descendants' is a vox signata, always meaning legitimate descendants, why was it necessary to add the word ' I' >j it lines' in that Article. Was not the reason that the general word ' descendants^ naturally and gramma- tically meaning both classes of children, lawful and illegitimate, required a qualification when it was necessary to r->trict it to one of the classes ? We may observe, in conclusion, that the circum- stances of the case generally are very favourable for the claim of 'jinie Bruneau. This may not affect the law of the case; but when the question is one of nicety and doubt, such considerations may not be without value. It will be observed that no other person, in any way connected with the de cujus, contests the suc- cession. She stands alone as the only person claiming propinquity of any kind with the deceased. The sole opposition to her demand arises from the claim of the Public Treasury, or Fisc, to which estates absolutely vacant from want of owners, and having no one to claim them, fall as caduciary. But it is a rule of our law that the public can only succeed to the estates of private persons when no successor of any kind appears ; or, as it is usually expressed, ct'es post omnes. So the Code enacts, Article 723. [Ante, p. 170.] Again, the social relations which, by the former law of the Colony, may be said to have been almost forced upon VOL. L] CASES IN THE PRIVY COUNCIL. 181 many members of the community, are worthy of notice. Till J- 0. a comparatively late period all marriages between certain 1866 classes of the population were prohibited ; and, undoubtedly, HER partly as a consequence of such a state of the law, there is still a p^^^ & very large number of persons of illegitimate birth in the class in v - life of the late Pierre Bruneau and his relations. The Claimant is the acknowledged daughter of his only brother. Her father died. She and her sister were taken into her uncle's family as his acknowledged nieces. They were treated by him, and all who knew them, as his children. They were brought up and educated by him as such. There can be no doubt that he intended that she and her late sister should be his heirs. Probably relying on the succession falling to them by law, he thought it unneces- sary to make a Will in their favour, for this is, we believe, the first time the Crown has interfered in Mauritius to claim a succes- sion on the ground of bastardy. Such considerations will not, as we have already said, make the law ; but if we had found our- selves obliged to take a view adverse to the pretensions of the Claimant, her case assuredly would have been a very hard one. For the reasons above stated, we send the Claimant, Virginie Bru- neau, into the possession of the estate of the late Pierre Bruneau, without costs." The appeal to Her Majesty in Council was from this judg- ment. The Attorney- General (Sir E. Palmer], and Mr. C. ParJce, for the Appellant : There is no dispute in this case as to the facts. The sole question is one of construction, whether " descendants" in Art. 766 of the Code Civil includes illegitimate descendants, and does not mean legitimate descendants exclusively. Now, we maintain that the latter construction is the true one, because, primd facie, the word " descendants" in that Article means the class qualified by law to take, that is by representation for successors who predecease the opening of the succession. By our law, under the term " children " or " issue," natural children or their issue are excluded, and can only take as persons designate; and if this be so, of which CASES IN Tin: PBIVT COUNCIL. (X. R. i - ,, ' tli : In- word "issue,'' uhich imports ft mer earitu*, a fortiori, is it true of the word * d*oe*dant9," v Inch in Code refers to succession according to law. Again the Code Civil !l ""'"' n ' iTinitsa bastard to represent anyone, a bastard may take in his OHM imli\Hii:il ri-ht. l.y Mrce of special provi- l"ii ,uIed:_ r ed, cannot claim the rights of a legitimate cliild. This Article is an express recognition of the inferior status of a natural child. It is true that in the Articles 343 and '.'' 1 . to adoption, the words "descendants legitimes" occur; but no n ment can be di-riv.-d \'r\n th- omission of the word "Ugitimet" in the other Articles; the expression "descendants Ugiiimes" being a mere redundancy. jui\alent to, and used in the same sense, as we say 4 * lawful children." The law relating to successions, Liv. III. tit. 1, Art id,- g 723 and 724, and Articles 731 to T inclusive, shew that "representation" under the Code Civil is confined to legitimates; and although the word " descendants " is used over and over again, it is used as a word of art, and means no other than legitimate descendants. The subject-matter of that part of the Code is legitimate successions, and though the word " descendants " occurs in Liv. in. Ch. IY. on Irregular Succes- sions, yet the onus lies on the Respondent to shew that it is used there in a different sense. In Art. 736 the direct line of descent is defined, and illegitimates are plainly excluded. In Chapter III. of the Code Civil, on Successions, Articles 745, 747, 748, 749, 750, and 768, it is clear that the word de*x*- dants" there used can only mean lawful descendants : Arti- ! 71." charly shews this, for it speaks of children succeeding although t be issues of different marriages. To come, then, to the Articles in the Code Civil relating to irregular successions namely, Articles 756 to 766. The very commencement of the Art. 756, " Les enfants natureJs ne sont point ht-retiers," is enough to disable a bastard from taking as an heir, he cannot, therefore, be a successor except so (1) See Art. ante, p. 170. VOL. I.] CASES IN THE PRIVY COUNCIL. 183 far as he is specially and exclusively made such, he cannot take J. C. under any mere general provisions. Natural children are not 1866 heirs : they take an appanage which the law gives them, but they HER do not take as heirs by descent. Art. 757 defines what it is that .p BO J ( ^! l f B the law gives to natural children, and draws a careful distinction , * BRUXEAU. between the hereditary portions of the lawful child and the share of the natural child, who is to take one-third of the hereditary portion which he would have had if he had been legitimate. It is quite clear that the word " descendants" in the latter part of this Article, means the lawful (legitimes) descendants spoken of in the former part of the Article. But the 759th Article raises the very question at issue ; for if " descendants" does not in this Article include illegitimate descendants, neither can it mean such in Art. 766, as it was held to do by the Supreme Court in the Mauritius. That the construction we contend for is the true one has been settled by authority, BiUard v. BiUard, decided on appeal by the Cour de Cassation on the 12th January, 1851, with the assent of M. Troplong. That case apparently was not kno\vn to the Court below, as it is not mentioned in the judgment. It is reported in Le Journal du Palais, A.D. 1851, p. 261; and it was there held, that a natural granddaughter, the daughter of a bastard, cannot succeed to her grandfather. That decision, it is true, is upon Art. 759, but the principle there decided applies equally to Art. 766 of the Code, for it is absurd to suppose that a natural niece can, but that a natural granddaughter cannot, succeed to the same de cujus ; and this view is adopted by Harcade, Explication du Code Napoleon, Tom. iii. pp. Ill, 125 [5th Ed.] ; Demolombe, the highest authority in Europe, in his Treatise on Suc- cessions, Code Civil, Arts. 759 & 766, pi. 88 B. and pi. 160 B.; and Dalloz, Rep, Heth. et Alph. Jur. verb. "Succession? Discussions on the Code, Procts Verbal of the 2nd Nivose, An. 11 (1802), and Con- ference du Code Civil, Tom. ii. p. 37. The construction put by the Appellant harmonizes the whole legislation of the Code. Any other construction would lead to all kinds of contradictions and difficulties. Suppose a natural brother left two families, one legitimate, the other illegitimate, are each to take part passu ? Such a case is unprovided for by the Code Civil. Art. 757 dees not apply to representative succession, and Art. 338 forbids equality of sue- 1S I CASES IN TIN: TKIVY COUNCIL, [L.B. j c cession between two such Claimants. Such omission in the Code shews t i^ nt int- -n-l'-l t" I all. l*-sMr, what limits are you to put on the word "detcen- dants ?" Are y > '-an illegitimate pedigree < Again, it is clear that natural rhiMi Mr.-n <-a' >!> _^ succeed as heirs to their lath, r's or _ instate, -\ an sail they are to succeed to ti prefix of u legiiime$ w to "descendants' in tin- i-arli.-r Art. 7, does not assist the Respondent's case. It is used there ; special purpose, required by the context, and the word " descen- dants" is twice repeated afterwards in the very same sense, 1-ut \\itlmiit thf \\onl "posterity," which is the: \\"id usl in Art. and means " issue," a more flexible term than " descendants" I litly ti.sc'1 tin-re, since a natural <-liild is qualified to pat pate in his own parents' succession : Arts. 7 "7. 7">8. The ralii-al fallacy in the view taken by the Court below is. it assumes that "descendants" in Art. 7G6 is large enough to in- clude illegitimates, unless its meaning be expressly cut down by the context ; whereas, as we contend, it is too small to include illegitimates, regard being had to the terms of Art. 756. The \\ " Descendants," in Art. 706 is not rendered insensible by exclu- '. illegitimates from its meaning ; for a bastard, though himself i pable of representing, may form a source of descent to legitimate descendants, and it is with reference to them that the term is used throughout the chapter on "Successions Irregulieres" There is, therefore, no pretext for construing the word in a new and non- technical sense. This interpretation is not only supported by the established canons of construction, but is in accordance with view taken by all the leading Commentators in France: Tom Le droit Civil Francais " Successions," Tom. xv., p. 160; Borleux, M 'iirton Ad., Art. 759, 766 ; Zacharia, H, 2, 555, 670; Demante, " Successions" Nos. 74 and 78. We contend, therefore, i Respondent, being the natural niece of Pierre Bruneau, was not entitled by the, law prevailing in Mauritius to succeed to his estate; and that in such circumstances the Crown alone became entitled to the succession, and that the judgment of the Court below, holding to the contrary, is erroneous and ought to be re- versed. VOL. I] CASES IN THE PRIVY COUNCIL. Mr. Coleridge, Q.C., Mr. D. R. Elaine, and Mr. Cookson, for the j. c. 1 1 spondent : I860 <^^ The Respondent claims to be entitled to the succession of her MAjMrrv*a deceased uncle, Pierre Bruneau, as to one moiety of the estate in PBQOUBECI V. her own right, and as to the other moiety as Legaiaire universeUe BBUNKAC. under the Will of her sister. We admit that the whole question depends on 'the true construction of that portion of the Art. 766 of the Code Civil, which provides for the passing of property to natural brothers or sisters, or their descendants. Our construction has been ratified by usage in the Island for sixty years, and there is no decision to the contrary in the French Courts. The term " Descendants" is to be interpreted according to its ordinary mean- iuir, and in accordance with the principles of construction laid down in our Courts : Broom's Leg. Max., p. 532 ; VattaTs Law of Nations, 13. 2, ch. xvii., sects. 271, 307. It is insisted on behalf of the Appellant that " descendants " is a legal term, which can only mean " legitimate issue," and the argument derived from the reference made to the use of the word in other Articles of the Code, so copiously referred to by the learned Counsel for the Appellant, is entirely founded on that assumption. But not one of the Articles of the Code Civil referred to in support of this doctrine is in point ; and the case of BiHard v. Billard, relied upon by the Appellant, is a decision upon Art. 759, and not upon Art. 766, which is the only one to be dealt with here. The analogies of English law do not apply. There is no direct authoritative interpretation of the word " descendants" in the French Courts. To ascertain, therefore, the intention of the framers of the Code Civil in the provisions made for irregular succession, we must look to the status and condition of illegitimates at the time of the promulgation of the Code. This is referred to by the learned Judges below in their judgment ; and their reasoning is based on considerations of equity and humanity: Demolonibe, Traite des Successions, Tom. ii.. pp. 4, 12, 28, 32. Now, by Art. 338, the rights of natural children are to be settled under the title "des Successions" Art. 723 establishes the principle as to such rights, and affords the key to the details contained in the Chapters as to Successions, both regular and" irregular. This is illustrated by Chabot, in his Commentaire Voi,. I. 3 P CASES I* THE PRIVY COUNCIL. J. O. twr la Loi des Succession^ is clear . L8M :lu- CW Cir/i th tln-1. and illegitimate branches of the family . 4, f, *js :,_'. In th.- rliaj.t--r of the Code Civil on Irregular Succession, th.- two main are first, what ilU-^itimat*- chil Ir.-n may take, and secondly, wliat transmit In no case do they take as heirs. " Post*', 1 " descendants? in Art. 1 '<<',. are synonymous terms, they !i h-L'itimate and ill.-:ritiinat' cluldn n : Diet, de la Aca- demie Fran. [1-M. l>llj; Chaboi, Tom. i., p. 64; Sireyt Let Cod. Annot., Ar; n. 1; Demolombe, Tom. ii.. } TovJlier, " Le droii Civil Fran^ais" Tom. iv., p. 2fi2. These authorities, many of which are referred to by tin- Judges of the Supreme Court in thoir ju'L'im-nt, fully establish tin- M.-ntity betweon th. tuodescript .successors in thi r of the Code Civil. The same vi.-u i> taken by a modern French author not much known in this country, M. G. J. Favard de Langlad- his work entith-.l "Repertoire de la Nouvette Legislation, Civile, Commercial, et Administrative,'' Tom. v. (Ed. Paris, 1823 and IM. tit. Succession" Code Civil Art. 7(56. i>^u. . }i"W,-Y,-r. i* not a mere question of construction, aa contended for by the Appellant, but involves the fortunes and interests of a large portion of the population of the Isl The status of natural children in the Island of the Mauritius is peculiar. They are for the most part the offspring of the inter- course between the natives and the slave population. At the time the French were in possession of the Island slavery was established, and by the 5th Article of an Edict passed in the 9th of Louis X \ .. promulgated in that Island in the year 1724, marriage between whites and the slave population was forbidden : Codes des Isles de France et Bourbon, p. 248. The Code GivH was promulgated in Mauritius, and became law in the Island soon after 1803, when it was decreed at Paris. The Island was captured by the English in 1810, and by the 8th article of capitulation the inhabitants were to preserve their laws and customs. This article was confirmed by proclamation in 1810 : Clark's Col. Law, p. 585. A claim similar VOL. L] CASES IN THE PEIVY COUNCIL. 187 to the present has never been put forth by the Government ; the j. o. coloured population have had no notice of such claim. This 1866 case, upon the construction of Art. 7G6 of the Code Civil, is the ^^ first that has ever been brought into Court. Here the Respon- MAJESTY'S dent is an orphan, the last survivor of all her family ; the amount in litigation is her whole sustenance. The Supreme Court, after _I mature deliberation, refused to put the construction contended for by the Appellant ; they held that the word " descendants " in Art. 766 includes illegitimate as well as legitimate descendants, and their judgment is consistent as well with the law as the justice of the case. It has been received by the Colonists as a just and satis- factory exposition of the law ; and, we maintain, ought to be up- held and confirmed by this Tribunal. Mr. ParJce, in reply : It is insisted on the other side, that the history of the particular legislation, and the fact that the law of the 12 Brumaire, 1794, was in force when the Code Civil was promulgated, are to be regarded in considering this case. I admit the full force of the observation ; but the Code Civil must be construed according to the plain and unambiguous meaning of its actual context. Nothing but the erroneous ingenuity of the early Commentators cited in the judgment of the Court below and on behalf of the Respondent, has given occasion to the present question. The Respondent's Counsel admit that 'descendants' mean exclusively legitimate descendants in those parts of the Code which relate to legitimate succession, and also in the first part of the chapter " Des successions irreyulieres ; but they insist that the latter part of the Art. 766 of the same chaj)- ter has a different and wider signification. This is contrary to the established canon of construction, that the same word is to retain the same meaning throughout an instrument, unless a special con- textual cause is shewn to the contrary : Hawkins v. Gathercole (1). The onus to prove the exception lies on the party asserting such a distinction ; accordingly it has been urged on behalf of the Re- spondent, that the Chapter on "Successions irreyulieres" divides ii- "If into two distinct parts first, the transmission of a succession to a bastard ; and, secondly, the transmission of a succession from a (1) 6 D. M. & G. 21. CASES IN THE PK1\ '. J.C. Mwu.iV... . BBPXSAC. bastard, and that a different coi " descendant*' ought to be applied to tl the case t*it< >1 <>t JiiGard v. BiSard may be good law as aj.|.! Art. 7 .":'. i'tit bad as upi'li' ! t Art. able that con- I "ill put tin- lollo\\ ing cases 1 legitimate dies, leaving no T< l.iti-.n or quasi relation nth n.itur.d -: liter, she cannot take any part accession, forArtiel. 7.".<'> i- express on that p..int. tin- uh .goes t<> the l"'wc, notwithstanding that (ex hyjtothesi) there is no com- petition I., tui-ni tin- natural granddaughb family of the y the de cujus himself. In the absence of the auth< >rity of Bittard v. Bittard, there is no difference as regards tin- prinrij.lt- l> t these t\\o illustrations. Then again, thirdly, an illicit imate dies 1. -u\ ing no relation, or quasi relation, other than a natural grand- daughter or a natural niece, the former, as we have se< take, 1'iit it is argued that the latter can, that is that tin- lim-al and near relation is excluded, and the collateral and more remote r. -lat ion admitted. This is a reductio ad alsurdiim, fatal to the Respondent's case. This thiril illustration is evidently \sithin the principle of the two former, and the whole property must go to the Fise, that is the Crown. Great stress has been laid ly the otber side on the proposition, that the whole Chapter " Des succession* irrigidieres" is exceptional legislation. Let it be so admitted ; it i-. lm\\. \. -r, a fixed canon of construction that tions are not to be extended beyond their necessary limits. It is the essence of an exception that it does not extend itself. The word " descendants" therefore, cannot be enlarged beyond its primary siiTiiitication merely because it occurs in connection \\ith "/reres ott soeurs naturels." Even if unenlarged it is not insen.-ibl' . it is material to mark that Art. 706 is not a suK-tantiv- rule, it is a mere e\.j.tionon a previous Article. 7."0, \\hichlaysdown the general rule, Lts enfans naturtls ne sont par heretiers." The VOL. L] CASES IN THE PEIVY COUNCIL. word " Posterite" in Art. 765, includes natural children, but not natural grandchildren : BiUard v. Billard ; but even if it did in- clude the latter class, the Respondent is not a member of it, or in any sense posterity of the de cujus. She is a niece, and, there- fore, not within the exception sought to be attached to the enact- ment of Art. 765. The words " ou a leurs descendants" do not occur in Art. 766, in connection with the legitimate brothers and sisters, and, therefore, if these die in the lifetime of the de cujus, their legitimate descendants do not represent them, for the rule of representation in Art. 742 has no application as between legitimate and illegitimate collaterals, and the property which the legitimate brethren and sisters would have taken if they had survived the de cujus goes at once to the Fisc. The fact that the privilege of r< 'presentation is conceded to the illegitimate brothers and sisters, in regard to the property secured to them, is probably due to the benevolent consideration that this class is ordinarily less well provided for than the legitimate class. Be the reason, however, what it may, it affords no argument in the event of the natural brother predeceasing the de cujus and having no legitimate repre- sentatives, why the property in question should not go to the Fisc, The construction claimed by the Crown ought to be upheld, because it harmonizes the whole legislation of the Code on the subject of succession ; that insisted on by the Respondent leads to all sorts of contradictions and absurd anomalies. Judgment was reserved, and now delivered by THE LORD JUSTICE TURNER: This case has come before us upon an appeal brought on behalf of the Government of the Island of Mauritius from a decision of the Supreme Court of that Island. The question decided by that Court, and which is raised by this appeal, relates to the right of succession to the property of Pierre Bruneau, deceased. Pierre Bruneau was a natural child of his father arid mother, recognised by them. He had a brother and two sisters, also natural children of the same father and mother, and also recog- nised by them. His father and mother had no legitimate de- scendants. His father and mother, and his brother and sisters, all J.C. 1866 HER MAJESTY'S PEOCUKETB t>. BRUNEAU. 1866 18 June. l!i CASES IN THE PRIVY OOUK II: .ic. ilit '1 in In- lii.-tiiu.-. His sisters had no deaoendai \- . had t\\ ! .-l.il'lr. : is Bruneau and Elodi* Bruneau, wu ' recognised by their lath- r. l.ut In- had no luulul d&- scendant. Upon the death i brotln-r him surviving. Elodie Bruneau, one of these chil has since li"(l,liaviiiLr 'lulyr. 1 li.Tsi-: t ] tieltruneau, her universal legatee. Upon the death of Pierre Bruneau question arose \\ln-iliiT tin- natural childrm succeed to it belonged to the Government of the Island, i question formed th- >ul>jfct of, the proceedings \\liidi have led up t.> this appeal. It was dec-id, d ly th.- Supreme Court of the I*! in favour of Virginie Bruneau, the surviving natural child 01 natural brother, and it is from this decision that the appeal before us is brought This question is purely one of French law, depending upon tho provisions of tho Code Civil, \\liich is in force in the Lslan , Mauritius, and constitutes the law of that Island. It is adniitt> d on all hands to be a question on \\hich there has been no recoi decision in the Courts of France; and as it is one of importance and of great difficulty we cannot but regret that means have not been provided for enabling us to obtain the decision of the French Courts upon it, as they must be more familiar than the Judges of this Country can be \\ith the language and provisions of the Code Civil. We have, however, endeavoured to obtain and, from our own resources, and through the kind assistance of a gentleman "i the French Bar, have, as we 1> li< \e, obtained all the materials \\liieli can enable us, or \\hich eould have enabled the Fr* Courts, to form a judgment upon the subject ; and we have gi the case our most deliberate and anxious consideration. We pro- ceed, therefore, to state the conclusion at \\hieh we have arri and the reasons on which that conclusion is founded. Before entering upon the consideration of the particular Ar VOL. I.] CASES IN THE PEIVY COUNCIL. 191 of the Code on which this question must ultimately depend, it is, J - c - as it has seemed to us, important to consider the general principles by which the Courts are to be governed in the construction of the HER Code. These principles, as laid down by the Court of Cassation, and the leading text writers of France, are conveniently collected in the 3rd section of Sireys note upon Article 1 of the Code ; and we select the following Articles of that note as bearing more parti- cularly upon the question before us : 111. "Les tribunaux ne peuvent, la ou la loi ne distingue pas, creer des distinctions qui en alterent le sens. Ce principe est eUmentaire en droit : une foule de decisions en ont fait Tapplication" 112. "Us ne peuvent non plus, lorsque le sens de la loi est positif et certain, se dispenser de I'appliquer idle quelle est : il ne leur appar- tient pas de la modifier ou restriendre par aucune consideration, quelque puissante quelle soit. " 112 bis. "Et bien quune erreur se soit glissee dans le texte d"une loi, les tribunaux nen doivent pas moins appliquer la loi telle quelle a ete puUiee : il ne leur appartient pas de rectifier T erreur." 113. " On ne peut seprevaloir des motifs d'une loi contre le texte de sa disposition? 114. " L' application speciale d'un principe general a un cas parti- culier, n'emporte pas derogation virtuelle a ce principe pour tous les autres cos." 119. "Les lois speciales doivent etre entendues selon leur propre sys- teme, sans y ajouter les regies du droit commun." It results, we think, from these principles, that in determining this question we are to be guided by the plain sense of the law which applies to the question ; that we are to make no distinction which can alter that sense; that, assuming the sense of the law to be positive, we are not to modify or restrict the law ; that we are not to weigh the reasons of the law against the words of it ; and (which, perhaps, is more pertinent in its bearing upon the present case) that if the law applicable to the case be special, we are to understand it according to its particular scheme (" propre systeme"), without adding to it the rules of what is called the common law. Guiding ourselves then, by these principles, let us first consider the Chapter of the Code on Irregular Successions, on which this question principally, if not wholly, depends. This Chapter, it is to C\M:S IN TIM: ri:i\ v r>r.\rii.. J.G. be observed, deals with i ,l.j..-i- I-"' Mien in tli- ]>r| : and Mot I MM. cession to iiatural children d\ iir_r u it hut JM>- fm MKJB to 7;i, inrlusive. apply to tin- form, r t these subjects; Articles B and :<;<; t.. th.- Liter .,r them. \\ . ].;iss liy, tor tin- pivsi-nt, tin- consideration of tin- Articles 7.~>'i t. 7; I, and proceed to consider the Articles 765 and 706, as they stand 1>\ themselves. These two Articles n uese terms: . "La succession de Tenfant naiurel decide tan* posteritt est devolve au pere ou dla mere qui la reconnu ; ou par moitie a tout let deux, s'ti a tie reconnu par Tun et par Tautre. n [L. I'. 1 . ft", ad. Senat. TertulL; 1. 1.. L'. I, 8, ff. Unde cognati.} . " En cos de predece* des pere et mere de Tenfani naturel, I* biens quil en avaii refus, passent aux freres ou toeurs UgUimes^ sik te retrouvent en nature dans la succession : les actions en reprise, sU en existe, ou le prise de ces liens aliened, sil est encore du, reiournent egalement aux freres et sceurs UgUimes. Tous les autres biens pas- sent aux freres et sceurs naturels, ou a leurs descendants." \\< have h.-iv, thrn-lun-, a di-tiiict and posit ivi- law that, in such a case as the present, that of a natural child <1\ in-_' \\ithmit posterity, and of the father and mother of th- natural rhil-1 ha died in his lifetime, the property of the natural child n<>t from the father and mother shall go to his natural brothers and sisters "ou a leurs descendants" There is no restriction or liji tit >n on tlu- word " descendants." We are not here dealing wit ha law which, like our own law says, that an illegitimate child is " nullius filius" The law we have to deal with is a law which admits tain claims of illegitimate children when recognised by th.-ir parents, and which acknowledges the relation between illegitimate children and their parents, and between the illegitimate child nn themselves. Primd facie, therefore, it is difficult to see upon what ground a limit ought to be put u[K>n the meaning of tin- R "descendants," or why those who are recognised by tin -ir parents as their children, and whom the law recognises as their chil- dren, should not be held to stand in that character, or be deemed to be " descendants^ of their parents within the meaning of these Articles. The context of the Articles does not appear to VOL. I.] CASES IN THE PRIVY COUNCIL. 19 us to support any such view. It cannot, we think, be disputed J. C. that the words " posterite" and " descendants" are used in these 1SG6 Articles as convertible terms ; and it cannot surely be denied that HER recognised illegitimate children, according to the provisions of the P R OCCKECR French Code, fall within the description of posterity of their * parents. But what is more remarkable in these Articles is this : that, except as to property derived from the Father and Mother, legitimate brothers and sisters are wholly excluded from the succession to the property of a natural child, and are so excluded in favour of the natural brothers and sisters of the natural child, and we cannot but think it would be a strange construction of these Articles to hold that, although legitimate brothers and sisters are thus excluded in favour of natural brothers and sisters, the word " descendants " should be so construed as to apply only to legitimate descendants, and thus exclude natural descendants in favour of legitimate descendants. Yet this is the length to which the Appellant's argument must be carried in order to maintain this appeal. Taking, then, the case to depend upon these two Articles alone, we think there could be little, if any, doubt that natural children ought to be considered as " descendants " within the meaning of these Articles. It was said, indeed, on the part of the Appellant, that the word " descendants" ex m termini, signifies those who are capable by law of succeeding ; that it of necessity refers to the known legal course of inheritance ; but however this may be, when the word is applied to a settled and recognised course of descent, it cannot, we think, be so when it is applied to a line of succession newly created by law, and created in favour of persons not falling within the settled and recognised course of descent. At all events we think that this position on the part of the Appellant cannot be supported against the opposing indicia of intention to which we have referred. The argument on the part of the Appellant, how- ever, was mainly rested upon the other portions of this Chapter on Irregular Successions, and upon other Articles of the Code. We shall presently refer to these arguments ; but before doing so we think it right to observe that, in our opinion, too much weight ought not to be attached to arguments derived from these sources. We are not disposed to go the length of saying that one part of the VOL. I. 3 Q CASES IN THE PRIVY COUNCIL. .if God* cannot bo reported to ir tin- j.urjM.s, ,. part of it: lut Articles 7J. r > ami 7(Hi may well bo considered to constitur. ami, in our opinion, do constitute, a special law determining the succession to natural chi. ying without posterity : and looking to the r\. r th- i:.; - ' :i of the Code, \\>- think that special laws < - far as possible, to be construed according to the terms in u hi.-h they are expressed, without either the general laws or the terms of 01 special laws being called in ai >h"i;M 1 ispose of this appeal i. al. ;!, or \\ithoiit ivt'errin^ to the- very able arguments v.hi.-h were d at the Bar in support < Th.s,- | ;< partly founded upon Article 7f>6 <>! Code. That Article is as follows: . "Les enfant* natureh ne sont point hcritiers ; la loi ne lew aceorde de droit sur les Men* de leur pere ou mere deeede*, que lortquils ont tie Icgalemeni reconnus. Elle ne leur aceorde aucun droit sur les biens des parents de leur pere ou m&re" [Inst. I. ' . 2; L. 2 d 8,/. Vnde cognaii : Nov. 89, cap. '2.C. c. 334 d *. This Art id- 1 upon as establi>hini: two ]Kinis: First. that natural rhiMivn hav.- not tin- t-har;, ln-irs: secondly. \ < anno;, ike any part of the proj iier or mother. But although nat chililn-n have not tin- character of heirs, the law nevertheless accords to t as and interests (which are defined by Articles 7.07 anl 7."">8) in the property of their parents, even as against the legitimate descendants of those parents, and still greater rights and interests against the other relations of those rents. It makes a wide and marked \\holly different states of circumstances. The one refers to the property which natural children have taken from their parents ; the other, to the property of the natural children themselves not derived from their parents. The one deals only with the sub- stitution of the children or descendants of pre-deceased natural children for the natural children themselves, it refers, as we understand it, to property wliich has never come to the natural children themselves, and involves, therefore, no other question than this : Whether the children or descendants taking by sub- stitution are to be legitimate children or descendants only? The other extends to the disposition, and, as it seems to us, to the complete disposition of the property of the natural children them- selves, and gives it to their natural brothers and sisters, " ou a leurs descendants,' 1 thus providing for what has not, so far as wo can see, been before provided for the devolution of the property of natural children dying without legitimate or illegitimate descen- GASES IN THi r T.. i:. 1800 Ihu KAJBRTll PWXTWR BBTKKAC. hints. These circumstances aie, wo think, sulli-i' nt t<> ; the coustni'-tion of tin- \\ ( >rn it in tin- former <>f t! 'Hi.' provisions of thcChapteron Representation were also to on the part of the Appellant in support of the argument \\\ ill.- 7.~>!Hh Article; but what we have already said upon th<- principal argument meets this argument also. It was furtl. m pled on tho part of the Appellant to draw some ar- from th 7i7th and 7G8th Articles of the Code, but these Arti. do not seem to us to refer to irregular successions. . as we think, to tin- regular order of succession, taking it up after the failure both of legitimate and illegitimate children, an ;hc <: \haustioii of the rules applicable to succession in such cases. Another argument, which was much relied u[ton on the pa: til.- Appellant, was, that the construction contended for on his part r th.- whole Code uniform and consistent; whereas tin- << instruction on which the decision appealed from proceeds, would, as it was said, render the different parts of tin- Code conflicting 1 inconsistent, lint this argument in favour of uniformity is, \\t- think, entitled to hut little, if any weight, when it , to be applied to diflVivm jiarte of the Code having r. t. n-n.-,- i<> wholly different states of circumstances, more especially ha\iii:r r. Lf.ird to the rules of construction to which we have reierr.-d. 1!\' n upon the construction contended for by the Appellant, the Code would be by no means uniform in its effect ; for, suppo.- legitimate children only to take under the 766th Article (which is what the Appellant contends for), they would not take in the same manner or to the same extent as they would take un r the other Articles. They would, as it seems to us, take under th Article nnly pn.j-rty not received l.y the natural brother or sister from his parents. The property received from the parents would be subject to the droit de retour. The difficulties which would arise upon the construction which the Courts of the Island have adopted were also much relied upon on the part of the Appellant. We are by no means unaware of these difficulties. If there be legitimate children, the illegitimate children may take nothing, or they may take equally with the VOL. I.] CASES IN THE PRIVY COUNCIL. 197 ' -itimate children, or they may take the portions prescribed for them by Article 757. But these are not the questions before us, and we give no opinion upon them. If the natural children are descendants within the meaning of Article 766, they are not less qualified to take because in certain events they may take nothing, or may take equally with the legitimate children, or may take only a portion of the share to which they would have been entitled had they been legitimate. The true question in this case is, whether, as between them and the State, they are entitled to take ; and we are of opinion that upon the true construction of the Code they are so entitled. We think so, both for the reasons we have assigned, and for the reasons which are assigned in the very able judgment of the Court in the Island, to which the following obser- vations may be added. It is clear, from Article 723, that in the case of regular succes- sion the State takes only after failure both of legitimate and natural children. It is equally clear that, under Article 766, the natural brothers and sisters, if surviving, would have taken, and the question, therefore, is in fact a question of succession to or substitution for a natural brother or sister. Could it have been intended that the State should be put in a better position against natural children, whose parents would have taken, by a construc- tion to be put upon the w.ord " descendants " confining it to legitimate children? We think that, had there been any such intention in favour of the State, it would have been clearly and definitively expressed. We admit the case to be one of great difficulty, and that the opinions of the Commentators upon the question are conflicting, and to such a degree that it can hardly be said to which side the greater weight is due ; but upon the whole we think that the better reasons are in favour of the Respondent, and we agree in the judgment appealed from. Wo shall, therefore, humbly recommend her Majesty to dismiss this appeal, and to dismiss it with costs. Solicitors for the Appellant : Parka & Pollock. Solicitors for the Respondent : R. Corny n. J. C. 1866 HI:K MAJESTY'S PBOCUKEVK v. BRVNKAU. CASKS ix Tin: navy 00UXGIL V10TOB liOLET, BEN BOr.Ui'i. ( UH THOMAS Wn>.\ .... _ THE QUEEN AND JOHN SHAW. A.risoJ COLLECTOR OF CUSTOMS FOR THE PORT OF I RESPONDENTS. ::RA LEONE ...... ) ON APPEAL FROM THE VIC'S-ADMIRALTY COURT OF ;KA LK Sierra Leone Ordinance* Harbour dues Seizure of goods and "boats Onus probandi Condemnation litversal of sentence with damages and costs. Sentence of the Vice- Admiralty Court of Sierra Leone, condemning poods and boats seized for breach of the Customs Ordinances of the Colony, reversed, with damages and costs : it being proved that the vessel from which the goods were unshipped, though off the harbour of Fredown, was not within three miles (the limit of jurisdiction) from the shore at the time of the un- loading, and consequently not liable to the harbour dues payable under the the Customs Ordinances. Where goods were unshipped in the immediate precincts of the harbour, the onus of proving that the vessel was not actually within the harbour, lies on the party claiming exemption from harbour dues. J.HE appeal in this case was brought from a decree of Vice-Admiralty Court of Sierra Leone, whereby certain goods belonging t< the Appellant, Rolet, were, with two boats belong- ing to the other Appellants, held forfeited to the Crown, and their respective owners condemned in costs. The goods for haying been illegally unladen and unshipped from a vessel while at anchor within the harbour of Sierra Leone, contrary to the pro- ions of certain local Ordinances of that Colony; and the boats for having been illegally used in the removal and conveyance of such goods. The following are the sections of the Order in Council and Ordinances, referred to and relied on in the pleadings and judg- ment : By the 6th section of the Order in Council of the 13th February, 1849, it is provided : " That no goods shall be laden, * Present : THE LORD JCSTIPK KNIGHT BBUCE, THE LORD JUSTICE TCBXEB, and SIB EDWABD VAUGHAN WILLIAMS. VOL. I.] CASES IN THE PRIVY COUNCIL. 199 or water-borne to be laden, on board any ship, or unladen from J. C. any ship, in the said Colony, until due entry shall have been 1866 made of such goods, and warrant granted for the lading or un- KOLET lading of the same ; and the person entering any such goods shall THE Q deliver to the Collector of the Customs, or other proper officer, a bill of the entry thereof, fairly written in words at length, con- taining the name of the exporter or importer, and of the ship, and of the master, and of the place to or from which bound, and of the place within the port where the goods are to be laden or unladen, and the particulars of the quality and quantity of the goods, and the packages containing the same, and the marks and numbers on the packages, and setting forth whether such goods be the produce of the British possessions or not; and shall also deliver at the same time one or more duplicates of such bill, in which all sums and numbers may be expressed in figures, and the particulars to be contained in such bill of entry shall be written and arranged in such form and manner, and the number of such duplicates shall be such as the Collector or other principal Officer shall require." The 21st section of the same Order in Council is as follows : " It is further ordered that all vessels, boats, carriages, and cattle made use of in the removal of any goods liable to forfeiture under this Order, or under any Act or Order relating to the customs, or to trade or navigation, shall be forfeited ; and every person who shall assist or be otherwise concerned in the unshipping, landing, or removal, or in the harbouring of such goods, or to whose hands or possession the same shall knowingly come, shall forfeit the treble value thereof, or the penalty of one hundred pounds, at the election of the Officers of the customs, and the averment in any information or libel to be exhibited for the recovery of such penalty,' that the Officer proceeding has elected to sue for the sum mentioned in the information or libel, shall be deemed sufficient proof of such election without any other or further evidence of such fact." By the 4th section of the Colonial Ordinance, dated the 31st December, 1849, it is enacted, that the importer of any goods shall pay down all duties due thereon at the time of making the entry of the same, previous to the unlading thereof, directed by 3 R 2 ES IN THE PRIVY COi VM [L. R. tin' Mli s etion of tin- Order in Council , t Her Majesty (I.'lth is.-.,-. M!'i, ;inl th<- Collector or otlu-r pro|M-r <>iHc,-r -hall viljM.n Arrant his \\ai T ' shipment of such goods. 1> : the sai nance, it is 'Mart, Customs, except when the Officer granting the warrant states tli- rein that the presence of an Officer is unnecessary. Goods landed contrary to this provision are to be fo: By the 'Jnd section of the Sierra Leone Ordinance, dated ll'th July. 1 - ;. that if any goods liable to the payn. of duties shall be unshipped from any ship or boat in the Colony of Sierra Leone (Customs' or other duties not being first secured), the same shall be forfeited ; and by the 8th 8 the same Ordinance it is enacted, that all ships and boats, or other means of conveyance made use of in the removal or conveyance of goods liable to forfeiture, shall be forfeit, d. By another Ordinance of the Colony, dated Oth August, 1850, section 1. it is enacted, that every ship or vessel that shall ai any port or place of or belonging to, or shall come \\ithin the jurisdiction of the said Colony, shall pay certain light-house d as therein mentioned. The facts of the case were as follows : The A pi tell ant, Rdet, the owner of the goods seized (a French subject, resident in France), had a mercantile establishment at Freetown, in the Colony of Sierra Leone, where he carried on business through his agent, Honore Lecomte, under the title of VOL. L] CASES IN THE PEIVY COUNCIL. 201 ' Malfilatre & Co" The other Appellants, Bobert and Wilson, J. C. the owners of the two boats seized, were Kroomen and licensed 1866 boatmen, both residing at Sierra Leone. ROLET On the evening of the llth April, 1865, Lecomte received in- T Q . , formation that a French vessel, the Belus, consigned to Messrs. Broadhurst & Co., of Fouricaria, near Mellicourie, a distance of about one hundred miles from Sierra Leone, and out of its juris- diction, was at anchor about four miles outside Cape Sierra Leone, and beyond the jurisdiction of the Colony ; having on board some goods belonging to the Appellant, Eolet. Barlatt, a native clerk, employed by Lecompte to assist him in carrying on the business of the firm of Malfilatre & Co., hired boats for that firm, and caused the goods in question to be transhipped from the Belus, so lying outside Cape Sierra Leone, into such boats ; but before the usual entries could be passed at the Custom House for the goods, and the duties paid on them, and permission obtained to land them, the Customs Office had closed. Meanwhile the boats, with the goods, some of which were perishable, being in transit to Freetown Harbour and a tornado threatening ; Lecompte, in order to prevent the goods from remaining in the boats and getting spoilt, obtained a tempo- rary permit (it being after business hours) from the Acting Col- lector, at his private residence, for liberty to land the goods and deposit them in the Customs shed until the entries could be passed and duties paid on them on the following day. On the same day, and after the temporary permit had been obtained, a portion of the goods was landed at the wharf from the boats. On the following day, the 13th of April, 1865, Barlatt, before the remainder of the goods were transhipped from the vessel, passed the usual entries before the acting Collector for the whole of the goods, which were described in such entries as having come from Mellicourie ; the duties on that portion of the goods which were to be sold in Sierra Leone being secured by a Bond given to the acting Collector, who received cash for the wharfage. From the evidence it appeared to have been the practice of the Custom House authorities at Freetown, for many years, to permit goods which had been transhipped into boats from vessels lying at anchor three miles outside Cape Sierra Leone (j'2 CASES IN THE PBIVY COUNCIL. [L. B. J. a (which is l yon Appellants, Robert and Wilson, upon the ground ; : lus was at anchor \\ it l.in the jurisdiction of the Colony, and that the goods had been illegally removed from her before the Customs' duties were paid or secured, and that the interim permit was obtained upon a misrepresentation that the goods were from Metticourie, After the Belus had left Sierra Leone, and on the 9th of May, 18' nit ion was granted in pursuance of an affidavit of seizure at the suit of Her Majesty, by His Honour John Carr, the Chid' Justice and Judge of the Vice-Admiralty Court of Sierra Leone, against the Appellant, llolei, which Monition was served on Lecomte as his a^ nt. By this Monition penalties ainountin. 2,450 were sought to be recovered against the Appellant, Bolt -t. The suit was commenced by Mr. Dougan, a private Proctor, although Mr. Huggins, Her Majesty's Advocate, and a Proctor in the Vice- Admiralty Court, was then in Sierra Leone. On the 20th of May, 1865, the Chief Justice Carr embarked for England, having first appointed, in pursuance of the power conferred on him by his Commission, an 1 with the concurrence of the acting Governor of the Colony, Mr. Skelton to be Deputy Judge of the Vice- Admiralty Court, lor the purposes specified in the Commission. Mr. Skelton died shortly after his appointment, whereupon Mr. Huyyins. Ilv-r Majesty's Advocate, being then acting Chief Justice in the Colony during the absence of the Chief Justice, by an in- strument dated the 23rd of May, 1865, with the concurrence of the acting Governor, appointed George William Nicol, the then Colo- nial Secretary of Sierra Leone, to be Deputy Judge of the Vice- YOL. I.] CASES IN THE PEIVY COUNCIL. 203 Admiralty Court, who, in such character, assumed jurisdiction in J. c. the case. 1866 A claim was brought in on behalf of the Appellants for the R^T restoration of the boats and goods, with damages, costs, charges, _. * . aud expenses, by reason of such illegal seizure and detention. This claim was supported by an affidavit stating, among other things, that the Belus was out of the jurisdiction of .the Colony when the goods seized were removed from her, that the Customs' duties had been fully paid on them, and that the circumstances alleged in support of the seizure were wholly incorrect. Upon this claim Mr. Nicol, acting as such Deputy Judge, ordered the Seizor's Proctor to bring in a Libel, and proceed by plea and proof. A Libel was brought in on behalf of the Seizor, but the same was objected to by the Claimants' Proctor, who urged that, assuming the circumstances set forth in the Libel to be true, they were insufficient in law to warrant the Seizor's prayer ; where- upon the Seizor's Proctor abandoned the claim for penalties, but supported the seizures of the boats and goods ; and the Deputy Judge decreed the Libel to be reformed by striking out the claim for penalties, and admitted the Libel so reformed. This Libel did not include the Appellants, Robert and Wilson. A responsive allegation was brought in on behalf of the Claimants, in which, by the first four articles, the Claimants protested to the jurisdiction of the Court so constituted, and alleged that Mr. Nicol was not the lawful Deputy Judge and Commissary of the Vice-Admiralty Court of Sierra Leone, as alleged in the Libel. The plea traversed the facts alleged in the Libel as to the seizure, and set forth, among other things, that the firm of Malfilatre & Co. did not remove any other goods from the Belus than those set forth in the entries passed at the Custom House for the firm ; that there was no attempt to conceal anything from the acting Collector, or his officers, or to commit any fraud ; and that the Appellant, Eolet, did not make untrue entries at the Custom House, and did not unship and assist in the unshipping of any of the goods from the Belus in the manner set forth in the Libel : that it was by Lecomtes authority and responsibility that Barlatt ordered the goods to be removed into boats, but that the I'M I CASES IN Tin: PIIIYY OODK< [L. B. vessel Be/itt, from wlii.-h tin -y \vere removed, was . '"' : four miles outside Cafe Sierra Leone, an i\\<- jm ROUR of th.- < 'olony, and that ll-irlttl had paid all tin- duti - an 'l '' ''"''' I " ;itt( ' 1 ' ;l!l I thin;/ that was USUall\ like IMS, s at the Sierra Leone Custom House. 1 imalits (huvi: : f.'iir articles of ih" j.l.-a excepted to ti, Dep i;y .lud-v) should app.-ar under protest upon aji undi-r protest was ordered to be given in, an 'otor moved that the fiist four articles of the plea be ; which motion was opposed by the Claimants' Pro ' ' I'Hth of June, ]> !>.'l>nty .lud^'- mad.- a eal against such decree, the Deputy Judge refused to j: such leave, as l> The Claimants' Proctor then moved eviden case be taken viva voce in open Court, but the Deputy Ju ivjivti-d the application, and or nee to be t.> before the Registrar. On behalf of th-- S--i/.or, Pike, the Jlarl.our Master. examined. He stated thr.t the Belw was, in his opinion, \\ithin the jurisdiction on the 1 lih of April, : >'h \\as after the goods had beeft unladen and the 1'iMonis' duties paid on them. He stated, that he went to Cape Sierra Leone oil previous evening, the 13th, with the intention of boarding Bdus, but it was so dark he did not do so, but that b reason to believe the vessel was in the same position uh n he was on board on the 1 1th of April as she was on the previous namely, on the day the goods were removed from her; I he thought that the vessel had not shifted her 1" 13th and 14th of April, because from Freetown he could perc no change in her position, but that this uas only his supposi; Ilanson, the Landing Surveyor of Customs, who was with Pik; the Harbour Master, on the 14th of April, when he boarded the Bel us, and also on the previous day, stated that he could not swear positively that the L Ju-* \\as in the same position on the 13th as on the 14th of April, but he had every reason to suppose VOL. I.] CASES IN THE PRIVY COUNCIL. 205 \\;is, as the only difference he should allow for would be her swing J- C. to the tide. He further stated, on cross-examination, that it was i860 the practice at the Custom House to allow goods taken from ships ROLET at anchor off Cape Sierra Leone, and without the jurisdiction, to THE Q' UEEN - be imported on payment of the duties, and to allow any place out of the jurisdiction to be inserted in such entry as the place they came from, although the Custom officers well knew the goods were transhipped outside the Cape. Johnson, the lighthouse-keeper, also deposed that the Belus was at anchor, to the best of his know- ledge, one mile from Cape Sierra Leone ; but when cross-examined, he declared that he could not positively swear that the vessel was at anchor less than three miles off Cape Sierra Leone. Three witnesses were called on behalf of the Claimants, Coker, the Captain of one of the boats into which the goods were removed from the Belus on the 12th and 13th of April, 1865, and two boatmen, who proved that the vessel was at anchor, when the goods were removed from her, more than three miles off Cape Sierra Leone. Judgment was pronounced by the Deputy Judge on the 17th of August, 18G5; after observing that the question of the goods unladen from the Belus while out of the jurisdiction of the Colony was the rc;;l issue, and that it was incumbent upon the Appellant, Eolet, to prove that the goods were unladen from the Belus while out of the jurisdiction, that is, three miles from the Colony, or three miles from a line running from point to point, decided that the goods, being liable to payment of duty, were unladen from the Belus while at anchor within the Colony before duo entry of such goods, and also before any warrant or sufferance had been granted for the unlading thereof, contrary to the Ordinances of the Colony of the 31st December, 1849, sections 4, 11,. and 13 ; the Order in Council of the 13th February, 1849, section G; the Ordinance of the 19th July, 1854, sections 2 and 8 ; and the 21st section of the Order in Council of 13th February, 1849. He also held, that the vessel being within the jurisdiction, lighthouse dues became payable under the 1st section of the Ordinance, 9th August, 1850; and the fact that the acting Collector did not demand the lighthouse dues, shewed he was not aware of the incorrectness of the statements made by Lecoinie and Barlatt, but re credit to. them. His Honour further observed, that this cir- Ill J.ci cumsUnce, indepen to shew MM gi\ !io Seizor of conversations between 1 / ROUT and J3arJo#, contained th-- tru<- v '!: transaction v. it h these P*^ 68 - f ^ uo Edits Ji.ivinu'. in I i been cl- 'ved to have at one time been within tli Colony, and the lighthouse dues not having K was, in his opinion, anoth'-r LTD uuid i'. ;!,. ihe^mxls, in. tho 2nd section <>l ih Ordinance of 1 scl was or was not within the jurisdiction of theC tin- time tho goods were unladen from her. The I> considering, then-fun-, that th'-p'ods which wen- unladen and shipped from the Belus \ I joats, and lande \ Freetown, were illegally removed from her, held that the goods boats were forfei ^ Crown, and condemned the- Claimant the costs of the prosecution. Appellants appealed from this decree, as also from t locutory decree of the 2Gth of June, 18G5. Mr. Edmund F. Moore, Mr. Rainy, and Mr. Pater, for the Appellants : ^ appeal as well from tin- interlocutory decree of the 26th of June, 18(!5, by which the pleas to the jurisdiction of ti \ Admiralty Court, as then constituted, were rejected and ordered to be struck out ; as from the final decree condemning the goods and boats. Our application to appeal from the interlocutory decree was refused, as premature, but we are entitled to question that decree now, since it has been held in this Court that the hearing of a cause is one continuous act : Barry v. Butlin (1) ; llandlty v. Edwards (2) ; and that it is not necessary to assert an appeal against an interlocutory decree, even though by so doing the whole question involved in the ultimate appeal might have been raised: Cameron v. Fraser(3); TJie Queen v. Bdclier (4) ; 1)77- Uams v. Tlie Bishop of Salisbury (5) ; Jones v. Gough (0). The objection taken as to the jurisdiction of the Deputy Judge was well founded, Mr. Nicol having no jurisdiction. His appointment (1) 1 Moore's I\ C. Cases, 08. (4) 6 Moore's P. C. Cases, 471. (2) 4 Ibid. 4; 7. (5) 2 Ibid. (X.S.) 375, 391. (3) 4 Ibid. 1. (0) 3 Ibid. (N.S.) -1. VOL. I] CASES IN THE P.RIVY COUNCIL. 207 as Deputy Judge was invalid. The commission to Chief Justice J. C. Carr appointing him Judge of the Vice- Admiralty Court, in 1866 pursuance of the Letters-Patent, dated the 26th of May, 1859, gave EOLET him power, under certain circumstances, to depute and surrogate a THE Q CEEN deputy ; that power he exercised in the appointment of Mr. SJcel- ton, upon whose death he might, had he been in the Colony, have exercised the same power again, by making a fresh appointment, but being absent from the Colony, and the office of Judge of the Vice- Admiralty Court vacant, the Statute, 26 & 27 Viet. c. 24, s. 4, provides that the acting Chief Justice for the time being" shall be such Judge ; and Mr. Huggins being the then acting Chief Justice, was, under that Statute, the Judge of the Vice- Admiralty Court during the Chief Justice's absence. He had, however, no power under that Statute to surrogate or depute a deputy. The Statute controlled the commission, and under it the Chief Justice Carr, or Mr. Huggins, as acting Judge, were precluded from naming a deputy. Power to surrogate a Deputy Judge can only be by Act of Parliament. In the case of The Queen v. Dulwicli College (1), Lord Campbell says, " the Crown cannot enable a man to appoint Magistrates :" Jewetson v, Dyson supports the same position (2). The commission granted by Huggins to Nicol was, therefore, uUra vires, and illegal. Such was the plea to the jurisdiction, which we submit was well founded, and ought to prevail. With respect to the principal appeal, we contend that the decree of the 17th of August, 1865, besides being pronounced by a Judge without jurisdiction, was unwarranted by the circum- stances disclosed in the evidence, improperly and irregularly obtained, and bad in law. The seizure, in the first instance, was illegal and unjustifiable; the burthen of proof to justify the seizure of the boats and goods of the Appellant was on the Seizor, who failed to establish any case to justify such an extreme act. But the proceedings were as irregular as they were illegal ; they w( -re not properly instituted. The Monition ought to have been extracted by Her Majesty's Advocate, who was practising in the Colony : Order in Council, 13th of February, 1849, sec. 29 ; Sierra Leone Ordinances, Vol. ii. p. 205. A similar enactment exists in revenue cases, Statute 16 & 17 Viet. c. 107, which, by section 186, (1) 17 Q. B. (N.S.) G15. (2) M. & W. 585. CAS HE PEIVY COUNCIL. [L. 1:. 11 s that i)' .11 U- commenced for the rcc< any 1866 i the name 6f some Office Bauer toms or Navy, or <>t H-r Majesty's Advocate or A -tienerml 'HEKX f rtu< i suit shall be commence* 1. ;ars HI the Munition that it was extracted by /A-i/y .--d boatn whose names were on the harbour-books. They ought, t h ; have been separately n. and served; again, th< r. proper service of the Munition ; being for penalties, by the Rules of practice iraine-l j>u:>u;:i:t t- th<> Statute, 2 & 3 Will. 1. <. .'!. per- sonal si-rvio'.- att-ly necessary (Rules and of the Admiralty Court ;>. L'O) : Hocquard v. Queen (1). These rules have been held by this Tribunal to L tin : as the Act itseli', in virtue of which : re framed: The Queen v. Jose Ahes Dias (2). Now, these rules require that ii the Miniti'u contain the names of the owners or others from whom penalties are sought to be recovered, it i be personally served on the parties; while tin.- l^Tth section oi same Rules also requires that when- tin- ."Monition sj cities the names of the parties cit< <1, it must be personally served on them. Here, >f being on Rolet, was on LeconUe, wh< > stated to be tin- At: >r Rolet, which he never was, lxinL r lut managing clerk in the Colony ; lut the suit being a penal one, no appearance of Lecomte could bin- ni'l th.- decree, all proceed upon au allege- 7 :T of ' ii nances which are sever Tmttcnx pl ^ ^' an 'l rt- I' ju'L'iiK nt. In the first place, tin- I ,,th of I-VI.ru. '. aj>i>Ii-- ships in the Colony that is, \\ithin the harbour, which we proved the Belus never was. The sections relied on are the sixth and the t\v-nty-:ir-Jt, but neither are applicable, unless the goods were lial . which we deny. As far as they require a pe: and entry of goods la mini in the harbour, those provisions were complied \\ith, ami a permit granted for the unla-ling and 1 ; of the goods from the Belus; luit the fact is, the parties ii gating these proceedings wanted to obtain penalties, and that was the reason they laid their charge under that Order in Council. The abandonment of the penalties made the provisions of Order in Council inoperative, even if we had come within t operation. The Ordinance of the 31st of December, 1849, refers to, and, so far as is requisite, enacts the same penalties ; but, i pendent of the inapplicability of its provisions to the case, sections relied on namely, the fourth, eleventh, and thirteenth have been repealed by the Ordinances of the 16th of March. 1 6 16th of January, 1856, and 12th of July, 1853. The 6th section of the Order in Council of the 13th of February, 1849, imposes no ilty for any t hiiiir prohibited by it to be done. The 1st section of the Ordinance of the 9th of August, 1850, and the 2nd section 01 Ordinance of the 19th of July. 1 S.~. 1, have no bearing on the case, being no longer in force. There was no breach on our part of the Ordinance of the 19th of July, 1854, or of that of the 9th of AUL 1850, regarding the light-house dues, for in neither case were any dues claimed or demanded which were not paid; and, even if demanded, they were not payable by Rolet ; the Master of the vessel alone was liable for those dues. There is no such penalty as the seizure of goods and boats for their non-payment, even if evaded or resisted. The Qua it's Aondents : Two preliminary questions have been argued on this appeal, VOL. I.] CASES IN THE PKIVY COUNCIL. 211 the first, as to the jurisdiction of the Vice- Admiralty Judge, and the J- C. second, as to the regularity of the process. With regard to the first 1866 point, we contend that the exceptions taken in the Appellant's plea KOLET in the Court below to the jurisdiction of the Deputy Judge were TuE Q VEEK not tenable, and were rightly overruled by the Court. The original commission from the Crown to Mr. Carr gave authority to him to depute or surrogate one or more deputy or deputies. It is admitted that he rightly exercised that power in the appointment of Mr. SJielton in the first instance ; but it is urged that the subse- quent appointment of Mr. Nicol, rendered necessary by the death of Mr. Skelton, was invalid, because made by the acting Chief Justice, Mr. Huggins, who, as such acting Chief Justice, was at the time the locum tenens of the Chief Justice, as well as Judge of the Vice- Admiralty Court, and it is contended that Mr. Huggins himself was, by virtue of the Statute, 26 & 27 Viet. c. 24, s. 4, the actual Judge of the Vice- Admiralty Court, and had no power to appoint a deputy. But the fallacy of that argument lies in the assumption that the office was vacant, which it was not, Mr. Huggins having, by the commission to Mr. Nicol, executed the power incident to his appointment as acting Chief Justice, and delegated his authority as Judge of the Vice- Admiralty Court to Mr. Nicol. That Statute contemplated an actual vacancy in the office, and then, there being no Judge of the Vice-Admiralty Court, constitutes the Chief Justice such Judge pro hac vice. Secondly, as regards the process and pleadings. The objection to the Monition is not tenable. That instrument is in the usual form. The object of it is simply to bring the party into Court. It was properly extracted. Dougan being a Proctor of the Court, and Shaw, on whose behalf it was extracted, being the Seizor, and at the time the acting Collector of Customs in the Colony, he was, therefore, an Officer of the Crown properly qualified under the Rules and Regulations of the Vice- Admiralty Courts, to institute the suit: Statute, 49 Geo. 3, c. 107. The boats having been seized for breach of the Customs Ordinances by Rolet, being at the time employed on his behalf, were properly described as his, and as no separate penalties were sought against the oo.tmen, there was no necessity to monish them separately; and although Rolet was not in the Colony, he was answerable : u Y COUNCIL. J. a tli.- acts of his servant. Attorney -General v. Siddon (1). 1 18C6 i"M uru'.-l. ho-v-r. is as t. th" service of the M- tioii, it 'rear C ur t- ^h'-re. I are sought, require personal service as iii' maintained, for inllrxil)!" n; .*cess for penalties couM In- i-nf,,n-. th.- O\VII.T of tin- Broods seized was not within the jr. the Court : - rule, tln-ivfoiv, \\oiild -!-f.-.it, and. i: "many cases ih- Ordinance; but \\. need not rely on : ground of defence, for the appearance and claim by Leconic mi behalf of Rolet was a waiver of all siu-li (ilij--(-tiiis, :: taken. The objection to tin- fram. is equally unsustainable.- It was no d.-t'.rt that th" Boatmen v not lil>L-H" :: 'i'b* sufficient to jr. the seizure. It is not necessary that tin re should be // to subject to forfeiture, because an irregular importation ma' ignorance or error works a forfeit ur.- : The Adams (2). The onus of proving that the Bdus had not violated the Custom Ordinances lay upon the Claimants : Order in Council, Kith }M>ni, sec. 30; Sierra Leone Ordinances, Vol. ii. p. 206; The Beaver (3). They had misrepresented the ship's destination, and that v.a- sufii- ntof itself to justify the seizure : The Vixen (4); The Reicard (0); (1)1 Cr. & Jtr. 220. (3) 1 Dods. : (2) (4) (.-.)' 2 Dods. 270. VOL. I.] CASES IN THE PRIVY COUNCIL. 218 Beg v. Dean (1) ; and to throw the onus of proof of exemption from J. C. the dues on the Appellants. i860 V-Y*^ ROLET The consideration of the case was reserved. Judgment was THE Q VEEN now (4th August, 1866) pronounced by THE LORD JUSTICE * TURNER : After stating the nature of the appeal, his Lordship proceeded : The Appellant, Victor Bolet, is a Frenchman, residing in France, and he has a mercantile establishment at Freetown in the Colony, whore he carries on business through an agent, Honor e Leconte, under the title of MaljUatre & Co. The goods in question were sent by him from France to his mercantile establishment at Free- town on board a brig called the Belus, which was consigned to some Merchants at Fouricaria, near Mellicourie, a place which lies to the southward of Sierra Leone, and about one hundred miles distant from it. On the llth of April, 1864, the Belus, in the course of her voyage to Mellicourie, came to anchor off Sierra Leone, and her Captain communicated to Leconte that she had goods on board for filaljUatre & Co., and that she w r as anchored out of the jurisdiction of the Colony. Leconte thereupon directed bouts to be sent out to bring in the goods. Four boats were accordingly dispatched to the Belus for that purpose early in the morning of the 12th of April. These boats had not returned from the Belus when the Custom House was about to close on the even- ing of that day. Application was in consequence made, in the first instance by Barlatt, a clerk of MaljUatre & Co., and sub- sequently by him and Leconte to Shaw, the acting Collector, to allow the goods when they arrived to be placed in the Custom House shed for the night. SJiaw appears at first to have refused, but afterwards to have acceded to the application. He gave a permit for the goods to be received in the shed, and in the course of the evening they were landed and stored accordingly. On the following morning, the 13th of April, Barlatt went to the Custom House and made a report inwards of the boats and the goods. This report described t}ie boat as a British boat of Sierra Leone, of which Daniel Colter was master for this present voyage from (1) 12 M. & W. 30. VOL. I. 3 S jl I !! I'KIV', . J.C. MeJUcourie. It set forth the particulars of the goods, an <1 i !". port. d that th- entry was a just 7-r of tli-- ship, ami contained a tru<- ae. ii--r lading; and fur- ,,', f . rv ther stated that hulk had not been brok iV goods d-li\ out of tin- ship, since her loading in Mellicourie. Th- n-jort was signed by Obitr, who was Maatei ili.-lH.at- \\hi-h had been sent out lor tho gools, and \\as declared by him in th- ; aenoe of Shaw, by \\hom it was also signed. Barlatt at the same time mad.- two entries in\\ 'ds, some of them being for consumption in th-- C, .].,ny. .1 exjHtrtation. and requiring a separate entry. Each of these- IM purported to li ' an account of mere-hand!/'- imported by MalJUa- tre & Co., in a British boat from Meflicourie." These - also declared before Shaw. Th<- \\harfa.LT'- -lues were paid, and th- usual Uiiids ^iveii for payment of th> . Some of the goods int. nd d for salt- in the Colony were then removed from th- Custom House shed to the store of Maljttatre & Co. On the morn- ing of the same 13th of April, the boats had again been dispatched t- tin- Bdus, for the purpose of bringing in some more of tin- goods; and these goods were brought in, as to some of th-m. in the evening, and as to the rest, in the night of the 13th of April. They were lauded at the Custom House, and stored in the < Jo\. -rn- inent sheds. In the meantime Shaw had taken steps for ascertain- in^ whether the Bdus was or was not within the jurisdiction of the Colony, which appears to extend three miles seaward from the Cape of Sierra Leone. On the morning of the 13th of April h- sent out Hanson, the Landing Surveyor at the Custom House, to 1 1 1. Belus, and other vessels \\ hich \\ere lying off the Cape, and Hanson went on board the Belus. He returned in the afternoon, and reported that he thought that the vessel was within the juris- diction. Pike, the Harbour Master, was then sent out. l.ut he did not reach the vessef that night. He went out, however, again to th. vessel on the morning of the Mth of April, and then took her bearings, and found her to be within the jurisdiction. On this same morning of the 14th of April, the goods which remained in the Custom House sheds, and two of the boats which had been employed in bringing them in, were seized by Shaw. Two or VOL. I.] CASES IN THE PEIVY COUNCIL. 215 three days after the seizure had been made, the Belus left the J. C. Colony, and on the 9th of May following, a Monition was issued calling upon the Appellants to shew cause why the goods and boats should not be condemned. On the 23rd of May, 1865. the v - ft THE QUEEN. Appellants brought in a claim for the goods and boats. The Libel in the cause was filed on the 1st of June, 1865, and on the 23rd of Juno following the Appellants filed their Plea or responsive allegation. Witnesses were then examined, both on the part of the Seizor and of the Claimants ; and upon the hearing of the cause on the 17th of August, 1865, a decree was made by the Deputy Judge of the Court rejecting the claim, holding the libel to be sufficiently proved, and condemning the goods and boats. It is from this decree the appeal before us is brought. Upon the opening of the appeal a great number of points were insisted upon on the part of the Appellants having reference to the competency and regularity of the proceedings in the cause, and to the validity of the appointment of the Deputy Judge, and his power and authority to deal with the cause ; but in the view which we have taken of the case it is not necessary for us to give any opinion upon these points. In order, however, to avoid any possible question in other cases, we think it right to say that we have no doubt whatever that the Deputy Judge was duly ap- pointed, and had full power to adjudicate upon the questions in the cause. With this exception we lay these preliminary points out of consideration. The real question in this case seems to us to be whether these goods and boats were liable to seizure and condemnation upon any of the following grounds : either, first, that the goods, being liable to the payment of duty, were unshipped from the Belus, at anchor within the Colony, before due entry had been made of the goods, and before any warrant or sufferance had been granted for the unloading thereof ; or secondly, because the goods, being subject to the payment of duty, they were unladen from the Belus, at anchor, as aforesaid, at a place other than the Port of Freetown ; or thirdly, because the goods, being liable to the payment of duties, were unshipped from the Belus while in the Colony, customs and other duties not being first paid or secured. These an.! points which appear to us to arise upon the Ordinances ami BB IN lin: 1 i:l\'Y COUNCIL. .1 i tin- Order i 1 to iit tin- lil* I, aii'l \\lii' ]^,-,- -id'-p- I l>\ tin- K-puty .Jit Ige to be the real jN.int* in t In -COM, ~ r aii-l th. v an- i - which were mainly, if i ujHiii mi tin- part of tin- liesjtond.-nts in thec, ho argument 116. We proceed, th < be observe*!, in tin- first place. tli.it tin- thirl Around .:v above \t u|t"n t! nt n"t i.uly oi the Cnatonw' duties lut of other duties also ; hut th- - i/ur.- in this caaeclr B . n examining th' (l - ami ( )rd -r in Council we do aot find that any forfeiture rouM aris- upon tin- non-payiv th.-r dnti.'s. Ti: . n.iHt l.-|-!nl u|>"ii tin- .j<.o(K been iinshijtp- <1. as tln-y undouhti ll\ th.- ji.-n tin- < 'nston. ; iiiir this rjui-stion. it is not. in our opinion, necessary to .-nt.-r into tin- details of tin ' ' ncea and Order in Council. It is suflirii-nt t< say that, in on -i. it the Bdus was within tin- juris 'i,-ti..n of th- Colony \> ini-hi]']> <1. tin .-.,, Is and boats were liable to seizure and rond- innatinn. hut that they were not so liable if the Belut \\as not \\ithin tin- jurisdiction of the Colony \\h< n tin- poods were un| Tin- mat- -rial question, then-loro, \\hich \\o hav.- to << a mere question of fact, \\h< tln-r tin; fielus was within the Colony \\licn the goods \\T.' unshipp'-d. \V.- have can-fully examine i 1. nee upon this question, and considered the collateral facts bearing upon it, and the conclusion at which < have arrived is that the Bdus was not in fact within the jurisdiction .,f tin- Colony \\hen the goods were unshipped. First, as to the testimony of the witnesses. Upon the witnesses on the part of the Sei/or beinir first xa it lined, not one of them ventures to swear thai the I'Jth and l.".th, \\hen the goods were unshipped, this vessel was not beyond the tin Inch form the limit of the juris- diction of the Colony. The only witnesses who speak dir- .-tlv to this point are Hanson and Johnson, and each of them, upon crow-' mination, declines to swear that the vessel was within t miles on either of those days. The evidence of Pike, the HarKour Ma.-t-T. however. ^,,,., t .. -h'W that the vessel was within the ti VOL. L] CASES IN THE PEIVY COUNCIL. 217 miles on the 14th, and that she was then in the same position as J. C. she had been on the two previous clays, but on cross-examination 1866 he admits that the fact of the vessel having been in the same R^i- position on the 14th as on the 12th and 13th, was no more than THE Q CEEN supposition on his part, and it is most remarkable that Hanson, who was on board the vessel both on the 13th and 14th, and must therefore have known whether she had changed her posi- tion or not, is upon his first examination wholly silent upon that point. There can be no doubt, therefore, that this evidence was insuffi- cient to support the Seizor's case, but it was insisted on his part that the onus probandi rested upon the Appellants, and that it was upon them to shew that the vessel was not within the jurisdiction of the Colony when the goods were unshipped, and this argument on his part appears to us to be well founded. We must consider, therefore, the evidence on the part of the Appellants upon this point, and we think it quite sufficient to establish their case. The testimony of the Boatmen, no less than five in number, clearly shews that the vessel was beyond the three miles when the goods were unshipped, and we find nothing to displace this evidence, for the rebutting evidence on the part of the Seizor is, as it seems to us, quite insufficient for the purpose. It goes no further than this : that Hanson, on his further examination, says he has every reason to believe that the vessel was in the same position on the 13th and the 14th, but he assigns no grounds for this belief. Taking the case, therefore, to rest on the testimony of the wit- nesses, we think that there was no sufficient case to warrant the sentence condemning these goods and boats. Then, how does the case stand upon the collateral facts. They seem to us to be strongly in favour of the Appellant's case. It is clear from the evidence that the goods in question might have IK (>n sent on to Mellicourie, and thence imported into Sierra Leone on payment of duties, and we cannot but think it in the highest degree improbable that Leeomte should have ventured to incur the risk of seizure for the mere purpose of saving the expense of bringing back the goods from Mellicourie, which, so far as we can see, was the only benefit he could gain by unshipping the goods at Sierra Leone. Again, notwithstanding what is said by Shaw, we Ufl < -ASI.S IN mi; i-Kivv mi v n, J. C. consider it to be sufficiently [.r.. \.-.l that it was customary to admit i -"' t lio importation of goods from vessels outside upon the payme-i ROLCT duties, and it is admitted by Shaw that be saw the vessels outside THE QCXKX. on tnt> ' '-'''' ^ ** surely most improbable that he should hare grant*" I the {teriait on the evening of that day, .should have received the report and entries on the following morning, and should even have allowed some of the goods to have been removed from the Custom House sheds on that morning, if he had th< n believed the vessel to be within the jurisdiction. Such eon . on his part goes far to shew that he did not then entertain any such beli- t', whatever he may have thought atVrw.. The excuse which is made for this course of conduct on his part is, that he was told that the goods came from Mellicourir ; l>ut it is clear from the evidence that it \\as the custom to insert M courie and other j.la.-.-s in tin- entries at the Custom House v the goods came from vessels outride ; and we cannot readily believe Shaw to have been ignorant of this practice, to say nothin. there lt-in:r two witnesses (Barlatt and Macrae), who distinctly Mate that they told him that the goods were coining from the out-i !e. There are also these further facts in favour of the Appel- lants' case ; that the character of the boats was of itself almost, if not fully, sufficient t< shew that the goods had not come from MeUicourie ; that no Custom House officer was put on board the Bdus on the loth, which, as we apprehend, would have been the ordinary, if not the necessary course, had she been within the jurisdiction; and that the .Monition was not issued till so long a time after the Belus had left the Colony, and the Appellants had lost the benefit of testimony which they might otherwise have been able to adduce. "We think it right to add that we desire to give no encourage- ment to the practice of importing goods from vessels outside, and thus evading payment of duties which would otherwise be payable ; and that where such a course is pursued, the parties adopting it must expect to be strictly dealt with ; but looking to the evidence, and to the conduct of the Custom House officers in this case. istied that this vessel was not within the jurisdiction of the Colony when the ^..ods w:-re tin-hijij>- 1 : and we shall then. humbly recommend Her 3Iaj- >ty to reverse this sentence, with VOL. I.] CASES IN THE PEIVY COUNCIL. costs in the Court below and of the appeal, and to condemn tne Respondent, Shau; in damages and costs. EOLET Solicitors for the Appellants : Hampton & Burgin. * Proctor for the Respondents : F. H. Dyke, Her Majesty's Procurator-General. ARTHUR BURTON PEASE AND OTHERS . . APPELLANTS; J.c.* AXD 18GG JEAN MARIE GLOAHEC RESPONDENT. Junc 15, 10,23. THE " MARIE JOSEPH." ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. Bill of lading Fraudulent possession of Transfer for value without notice of fraud Goods Vendor Stoppage in transitu. A. Bill of lading for the delivery of goods to order and assigns, is a nego- tiable instrument, which by indorsement and delivery passes the property in the goods to the indorsee, subject only to the right of the unpaid vendor to stop them in transitu. The indorsee may deprive the vendor of this right by indorsing the Bill of lading for valuable consideration, although the goods are not paid for; even if Bills have been given which are certain to be dishonoured, provided the indorsee for value has acted bond fide and without notice. A firm (Af. & D.) in France, sold, through their agent in England, to S. & T. a lot of linseed cake, payable by Bill at three months' date, and shipped the same. A Bill of lading, signed by the Master and indorsed by M. & D., was delivered to S. & T. in exchange for their acceptance at three months' date. Afterwards the Bill of lading was re- delivered to M. A- D.'s agent to hold as security against the acceptance. T., a member of the firm of S. .'s agent, by a fraudulent misrepresentation, and indorsed and delivered it to P. & Co. for value, without notice of the fraud. Before the goods arrived in England, S. cfc T. became insolvent. Upon appeal, Held by the Judicial Committee (reversing the judgment of the Court of Admiralty) : * This appeal was twice argued. Present on the first hearing, the loth and 16th of June, 1866 : THE LORD JUSTICE KNIGHT BRUCE, THE LOED JUSTICE TUKNER, and SIB EDWARD VAUGHAN WILLIAMS. Present on the second hearing, the 23rd of June, 1866, Lord CHELMSFORD (subse- quently LORD CHAKCELLOR) : THE LORD JUSTICE KNIGHT BRUCE, THE LORD JUSTICE TURNER, SIR JOHN TATLOB COLERIDGE, and SIR EDWARD VAUGHAN WILLIAMS. VOL. I. 3 T Y COUNCIL. J. a First, that the firm of i' J}or<1<--iin > . in Franr, , M.-rvh.'int.-. by Siericker, their agent at IIull, in the month of February, 1864, agreed with Messrs. Scarborough & Tadman, of Kingston-vpon- Uufl, for the sale to them of sixty tons of linseed cake, Scar- borough & Tadman to pay for the same by their acceptance at three months' date. The cake was shipped on board the Marie Joseph, at Bordeaux, on the llth of February, 1864, by Maxwell dr Dreossi ; and a Bill of lading, promising to <1< liv< r th- KUH 7//?unto order of Maxwell & Dreossi, or to assigns, he or tl< y paying freight for the same, was signed by the Respondent, and Lriven by him to Maxwell & Dreossi. The Bill of lading was in- dorsed by Maxwell & Dreossi, and a Bill of Exchange for the purchase-money was drawn by them on Scarborough & Tadman, and Maxwell & Dreossi forwarded such Bill of lading and Bill of Exchange to Siericker. On the 16th of February, 1864, Stericker, as agent of Messrs. MaxiceU & Dreossi, took the Bill of Exchange, together with Bill of lading and Policy of Insurance of the linseed cake, to- the office of Scarborough & Tadman at Hull, and the Bill of Ex- change was then accepted by Scarborough, on behalf of his firm, and handed by him to Siericker in payment for the linseed cake, and Stericker thereupon delivered the Bill of lading, indorsed by Messrs. MaxiceU & Dreossi, and the Policy of Insurance to Scar- borough. VOL. I] CASES IN THE PRIVY COUNCIL. 221 After this had been done, it appeared that a conversation took J. C. place between Stericker and Scarborough respecting tho affairs of a 1866 Mr. Moore with whom the firm of Scarborough & Tadman had deal- PEASE ings, and whose affairs were considered to be in a doubtful position, GLO ^ C> and the result of that conversation was that Stericlcer requested THE ** J\!ARIE Scarborough to let him (Stericker) have the the Bill of fading, JOSEPH." which Scarborough did, and the following memorandum was given and signed by Stericker for the same : " Hull, 16th February, 1864. Memorandum that I have received of Messrs Scarborough & Tad- man, of Hull, a Bill of lading and Policy of Insurance for about sixty tons linseed cake, shipped ex Marie Joseph, dated at Bordeaux the llth of February, 1864, and which I hold as security against their acceptance of Messrs. Maxwell & Dreossi's draft for 427/. Is. 4cZ., due on the 14th of May, 1864, until the cakes are sold, or the vessel arrives." On the ISth of February, 1864, Tadman went to Stericker and stated to him that his firm had sold the linseed cake to a Mr. Croys- dale, who would accept a Bill of Exchange against the Bill of lading which Tadman asked for, and which Stericker handed to him. The representation made by Tadman was untrue, as his firm had not sold the linseed cake at the time when the Bill of lading was so returned to him. On the same day that Tadman obtained the Bill of lading, but subsequently thereto, the Appel- lants, who were Bankers at Hutt, to whom Scarborough & Tadman were largely indebted, applied to them to reduce their debt. Tadman then offered the Appellants, as security for their debt, the Bill of lading of the linseed cake, the Policy of Insurance effected thereon, and some warrants for some sacks of rib grass. The Appellant, Pease, on behalf of his firm, accepted the same, and Tadman then, on behalf of his firm, indorsed the Bill of lading to them, and delivered such Bill of lading, and also war- rants for some sacks of rib grass, as security for advances then made, or which might thereafter be made, by the Appellants to Scarborough & Tadman, with power to sell the linseed cake. Scarborough & Tadman were at this time indebted to the Appellants in an amount exceeding the value of the linseed cake, but the Appellants were not aware that Scarborough & Tadman were then in insolvent circumstances. The Appellants, who had 3 T 2 OASES IN Tin: TKIVY COUK< [L. E. ' nr knowledge t' lading having !>'- n handed to ricker, nor of the means l>y \\hirh it hud been obtained back :u him. ivtuiii'd jK>88e88ion !' th>- Hill of lading, and advanced further moneys to Messrs. Scarborough & Tadman. On th- 1th of March, Mui-c st.-jip'-d i>aymentand on th.- 7th of that month * Sc.t -ii also stopped luym.-ni. Tin- Hill of p- for th- j'rie nf the linseed cake was in rireulatioii thi ;it in consequence of the stoppage of Scarborough & Tadman it was not pai 1. On the ~>th of Ajuil following, tin- .!/./// JvSf-jJi arriv'-] ;( t JInU. \\li\\ tin- linsonl cake oil boanl. : -llant-i claiin-l l-li. of tin- liii>ivil cake from the Master of the Marie Joseph, and Stericker, who lmn tlirir In-half tho right to stop the same in transitu. ritiniat--ly th-- linseed cake was l.-livnv.] l.y th.- ^Ia. for the recovery of damages in respect of the breaches of duty and of contract on tin- }>.i:t of the Respondent in not having delivered tin- linseed c. '..< m. The case was heard on the 1st and 2nd of August, 1864, and on the 10th of November, 18G4, the learned Judge, the Ri^rht Hon. Dr. Lusliington, pronounced against the claim of th- Appellants, on the ground that the Bill of lading having been obtained back from Stericker by Tadman, upon false representa- tions and by fraud, it was negotiated without Stericker s con> or the consent of the vendors of the linseed cake, and contrary to the understanding bet ween Scarborough and Stericker; an I that the fraudulent conduct of Tadnuin invalidated the indorsement of Bill of lading to the A|>p -Hants, though they became holders for valuable consideration, in ignorance of the fraudulent act of Tad- man. The learned Judge, in support of this vi w. referred to the observation of Lord Campbell in Gurney v. Behrend (1), that it is not enough that the Plaintiffs shew they became bond Jide holders of the indorse 1 Dill of lading for valuable consideration. (1) 3 El. & B. C33. VOL. I.] CASES IN THE PRIVY COUNCIL. 223 Mr. Hellish, Q.C., and Mr. E. C. Clarkson, for the Appellants : J. C. There being no dispute as to the facts, the question is narrowed ^^ to a single point of law, whether Maxwell & Co., the shippers, TEASE had, under the circumstances, a right to stop in transitu the goods GLOAHEC. shipped by them to Scarborough & Tadman. The Court below THE " MARIE was mistaken in thinking that this case was governed by Gurney J(>SE1 ' H -' v. Behrend (1). The i'acts are essentially different. There it was laid down by Lord Campbell that, primd facie, the Defendants had a right to stop certain wheat, the subject of the action, as it was still in transitu, the vendors being unpaid, and that G., with whom the Bill of lading had been pledged by a third party for valuable con- sideration, was not entitled to the cargo, unless the party pledging the Bill had not merely possession of the Bill, but the right to trans- fer it. Here the facts are widely different. The Bill of lading, in- dorsed by the vendors, was, by their authority, and with the inten- tion of transferring the property therein to a purchaser, delivered by Stericker, their agent. It is true the Bill of lading was subse- quently returned to Stericker, yet, when handed back by Scar- borough & Co. to Stericker, he was acting within the authority originally conferred upon him by his principals, and, from the first, intended to deal with their right in the Bill of lading. The Ap- l>ellants were bond fide holders of the Bill of lading for valuable consideration, without notice of fraud. The transfer to them was . valid, and the Appellants, therefore, entitled to the goods. The learned Judge, in the Court below, did not distinguish between obtaining goods by fraud, or obtaining them without authority ; or that a transfer of property obtained by fraud is voidable only and not void. If a contract of sale be obtained by fraud on the part of the purchaser, it may be voidable at law upon the authority of Gurney v. Behrend (2), but it is not absolutely void as against a purchaser for value. It is void only at the election of the vendor, and it is too late to declare such election after the goods have passed into the hands of a bond fide purchaser without notice: White v. Garden (3); Parker v. Patrick (4); Kingsford v. Merry (5) ; Stevenson v. Newman (6), where all (1) 3 El. & B. G22. (4) 5 T. K. 175. (2) Ibid. G33. ' (5) 11 1-ix. r,77 ; S. ('. 1 H. & X. COS. (3) 10 C. B. 910. (G) 13 C. B. 285, 302. CASES IN THE PRIVY CO! MIL [L. R. J. 0. the cases are collected. Barrow' v. Cola(\)\ Patten v. Thomp- 1866 son (2); In tl* matter of Wcstzinthu* . r v. Peanon (I). [LORD CHELMSFORD: Messrs. Scarborough & Tadman hav parted with the Bill of hiding, could nut recover it in tr Although tli.-re may not be any direct decision to bo found M Mill. . PH." which is on all fours with the present case, yet th- principle whi-h \\. ivly ujon is to be deduced from those autlmriti- *. Our pro- position is, that, admitting th<- right to stop in transiiu, in case of the veil-Ire's insolvency, y.-t that that right may be defeated 1>\ indorsing and drliv. rini: tin- Bill of lading to a lond fide indorsee for a valuable consideration without notice of fraud: Lickbarrow v. Mason (5). Again, the Appellants are entitled by Stat 5 & 6 Viet c. 39, s. 1, to the Bill of lading. Dr. Deane, Q.C., and Dr. Swabey, for the Respondent : Possession of the Bill of lading having been obtained from th< vendors' agent, by the fraudulent representations of Tadman, tin- transfer by him to the Appellants by indorsement and d<-livi-ry of the Bill of lading, conveyed no tit I t the goods, as the transfer s tainted with fraud. There is a great di-tinetion between Kinysford v. Merry ((>), White v. Garden (7), and other cases of that elass cited by the Appellants, and the present case. It makes no difference that Tadman once had, with his partner Scar- borough, a property in the Bill of lading, for it was handed back by them to the vendors' agent, from whom it was obtained by fraud. Newsom v. Thornton (8) is a strong case in support of this posi- tion. There it was held that a Factor could not pledge the goods of his principal by indorsement and delivery of the Bill of lading any more than by the delivery of tin- goods themselves, though an indorsee knew not that he was Factor ; and though the goods re consigned on the joint account of the consignors and con- signee and a Bill of lading was sent to deliver the goods to tin- consignee or his assigns, who afterwards indorsed and deliv- it to the Defendants, upon condition of their making an advance to him on it, which led to do, but claimed to regain it as (1) 3 Camp. (5) 2 T. R. 03, and see Smith'g (_') 5 M. & S. 350. Leadiug Cases, note 431. [Ed. 1841.] (3) 5 B. & A. 817. (6) 11 Ex. 577 ; S. C. 1 H. &N. 503. (4) 3B. & C. (7) 10C.B. 919. (-) i the 1 1th ol' 1'Vl.niary th- -oodswere t>\\\\>\>< <1 th>- Marie Joseph, at Bordeaux, by Maxwell & Dreossi, and a 1 for the same was si:: n< 1 l.\ th- th-- Ma Maxwell cfr Dreossi indoi> ; -ill of lading to onl. -r and assigns, and divu a i'.ill ol' Kxchan^-- lor the jiico on MeBBTS. Scarbon & Tadman, and sent tin- Hill oi lading and ]>ill of I. th' , Stericker. Ou th.- ICtho:' l-'.-liruary. Xtirii-ktr t>ok tli.- Hill of la-ling and the Bill of lixe-han--- to Scarborouyi \\hen the Bill was accept- -1 1>\ Scarborough, and SU-r<'-l;<)- ti uiK.n indorsed the Bill of lading, and ! ! t to Scarborough, th.-r \\ith a [>.li(.-y of in>MiMin-,- uhirh had !>- ted ujx>n the goods. A conv.-i.uj.j. ..>..! t-. be embarrassed, and Stericker asked Scarborough \\hetln-r h. had any objection to his holding th- Bill of lading. Scarborough told Stericker to take it, and delivered back the Bill of lading Stericker, who thereupon signed the memorandum of the ICth of February, iMil [anfcp.^1]. On the 18th of February, Tadman, the other partm-r in the linn of Scarborough & Tadman, called upon Stericker and stat-d to him that his firm had sold the linseed cake to a Mr. Croysdale, \\h< would accept a draft against the Bill of lading. The linseed cake had not been sold to Croysdale, nor to any other person. Trust to this misrepresentation, Stericker returned the Bill of lading and the Policy of Insurance to Tadman. On the 'same day, alt- r thus obtaining the Bill of lading, in consequence of a message recei from the Appellants, Messrs. Pease & Co., Bankers in Hutt, to whom Scarborough & Tadman were largely indebted, Tadman went to- the Bank, and }fr. Pease called his attention to the state of his account and to the amount of the Bills under discount, and asked him for security. Tadman thereupon endorsed the Bill of lading VOL. I.] CASES IN THE PEIVY COUNCIL. 227 in the name of his firm, and delivered it, together with the Policy J. C. of Insurance, to Mr. Pease, and gave Messrs. Pease & Co. an unsigned 18G6 memorandum, authorizing them to sell the linseed cake and to PKASE place the proceeds to the credit of Scarborough & Tadman on G^HEC. account. Moore, in whose transactions Scarborough & Tadman n THE " MAKIB were supposed to be involved, became Bankrupt on the 4th of JOSEPH." March, and on the 7th of March, Scarborough & Tadman stopped payment. On the 5th of March a telegram was sent from Maxwell & Dreossi to Stericlcer directing him to stop the delivery of the linseed cake, and on the 7th of March he received from Maxwell & Dreossi a Bill of lading indorsed to himself. The Marie Joseph arrived at Hull on the 5th of April. The linseed cake was demanded on behalf of the Appellants upon the Bill of lading indorsed to them, but Stericker afterwards went on board and presented his Bill of lading and obtained possession of the goods under an indemnity from Maxwell & Dreossi to the Kespondent. Upon these facts the learned Judge of the Court of Admiralty was of opinion that the Bill of lading having been obtained from Stericker by the false representations and fraud of Tadman, and having afterwards been negotiated without the consent of StericJcer or of his principals, and contrary to the understanding between Stericker and Tadman, the fraudulent conduct of Tadman inva- lidated the indorsement to Pease & Co., and he accordingly pronounced against them. The question is one of nicety and difficulty, and, as was stated by the Counsel in argument, no direct authority is to be found by which it can be decided. Principles, however, may be extracted from previous decisions, which will serve as guides to its right <1< 'termination. A Bill of lading for the delivery of goods to order and assigns is a negotiable instrument, which by indorsement and delivery passes the property in the goods to the indorsee subject only to the right of an unpaid vendor to stop them in transitu. The indorsee may deprive the vendor of this right by indorsing the Bill of lading for valuable consideration, although the goods are not paid for, or Bills have been given for the price of them which are certain to be dishonoured, provided the indorsee for value has acted londfide, and without notice. Although a Bill of lading is a negotiable instrument, it is so only as a symbol of CASES IN TIM: I'KIVY mr.NCIL. [L.B. J. C. tho goods naiii' I in it, ind as was 8aM 1>y Lord Campbell in is.v, Gumey \. I: fa-end (1), " although the shipper may have indorsed 7 t in blank a Hill >i' lading 'Irliv.-raM'- to his assigns, his ri OIX.AHW: " no ' anPert '"l n . v iin ;ilrropriation of it without hi* authority j and if it ! .-! -u him, or transferred without his in:' .1 .MiiK rity, a subsequent lond fide transferee for valuo cannot make titl- un'i'-r it as against the shipper of the goods." This dictum is very carefully confined in its terms to the original transfer of a !1 of lading drlhvrable to the assigns of the shipper. In cases which it supposes, there could be no lawful assigns of shipper, and consequent ly the Bill of lading could have no exist- ence as a negotiald.- instrument. But in the present case the shippers of the goods, having obtained a Bill of lading, indorsed it to order and assigns, and forwarded it to Slericker for the express purpose of its being indorsed l>y him, and handed ov Scarborough & Tadman. By the indorsement and delivery to Scarborough & Tad>nr, to t . and pus* - though i!.. has committed a false and lY.iii'hil. nt m GLOJLHKC presentation in order to effect the con obtain tin- pos*e> the property \ests in tin- vendee until the vendor luis done fi- i t-i disaffirm th- transaction, and .1 consequence is, ' if be ton- tlu> disanMrmance tic- fraudulent vendee has tra: either tin- uholo or a partial int'-n-st in tin- chattel to on innor iran.-t'. iv, . the title ot'siu-h transferee is good against tin; \ Alth('Uu r h this cast- \\as rcvi-rsc-d in the- l]xch'-<|i!-T ( '!iaml-r (1), yet it was upon a ground uhieh did nut a fleet the ru! above laid do\\n, l.ut made it ina[>plicable, because in the j ment of the Court the relation of vendor and vendee did nut exist between the owner of the goods and the fraudulent possessor. Here the possession was not only united to the previous ownership, with the consent (h<\\ever obtained) of the person temporarily entitled to it, but transferred fur the express purpose of v.i the owner absolute dominion over his own property. An ownership, \\hich \\as at tin- time perfect at law. though voidable as to part, vix., the possession, cannot in principle be treated differently from an ownership voidable as to the \\h !,-, but in the interim protected by the interposition of a bond fide purchaser for valuable consideration. For these reasons their Lordships will humbly recommei Her Majesty that ^tho decree appealed from be reversed, \\ith costs. Proctors for the Appellants : Clarkson, Son, & Cooper. Solicitor for tho Respondent : 7. C. Dalton. (1) 1 II. ,v X. 503. VOL. I.] CASES IN THE PRIVY COUNCIL. 231 EDWARD WILLIAM OHRLOFF AND OTHERS APPELLANTS ; j. c* AND 18GG THOMAS BRISCALL AND OTHERS .... RESPONDENTS. j ttn 7i3. 14, 15,20. THE " HELENE." ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. Hill of lading Cargo of oil Memorandum declaring shipoivner not Halle for leakage Negligence Improper stowage Liability of shipoiuner for Pleading Leave and license Sills of lading Act, 18 & 19 Viet. c. 111. Under a charter-party the shippers put a cargo, consisting of casks of oil, wool, and rags, on board the chartered vessel, and personally superintended the stowage of the cargo in the hold of the vessel. In the margin of the Bill of lading of the casks of oil there was this memorandum, " weight, measure- ment, and contents unknown, and not accountable for leakage." The Bill of lading was indorsed in blank by the shippers and assigned to B. & Co. In the course of the voyage the oil casks became heated by the action and con- tiguity of the wool and rags, and a very large portion of the oil was lost: IMtl, in a suit against the ship under the provisions of the Admiralty Act, 1861, for damages occasioned by the shipowners' negligence : First, that ignorance of the shipowners as to the ktent effect of heat, in storing the casks of oil with wool and rags, did not, in the circumstances of the shippers superintending the stowage, amount to such negligence as to make them liable to the holders of the Bill of lading for the loss occasioned liy the leakage of the oil ; and, Secondly, that the limitation of liability by the memorandum in the Bill of lading, that the shipowners were not to be accountable for leakage, was not ricN'd as to the quantity of leakage, and protected tho shipowners, in the absence of proof that the leakage was occasioned by their negligence. Whether the conduct of the shippers as to the stowage, was not such as by the I'-ilh of Lading ActJ18 & 19 Viet. c. Ill, would support a plea of leave and license in an action by the indorsees of the Bill of lading, qucere. was a suit instituted in the High Court of Admiralty, under 1hc provisions of sect. C of the 24 Yict. c. 10, the Admiralty Court Ad of 1801, by the Respondents, the owners and assignees of the liills of lading of forty-seven casks of olive oil, proceeding in rein, against the Helene, a foreign ship, in which the casks of oil * This apical was argued twice, first on the 13th, 14th, and 15th of June, I860, before THE LORD JUSTICE KNIGUT BRUCE, THE LORD JUSTICE TURNER, and Siu KDWARD VAUGHAN WILLIAMS; and secondly, on the 20th of June, before LORD fin i. MSI orai, THE LORD JUSTICE KNIGHT BRUCE, THE LORD JUSTICE TURNER, f." contract and duty of the Appellants. The principal facts, as appeared from the evidence. v, re a- lows : By a charter-party, dated the l!th of July. IS' the Master of tho Ilelent, then lying at the j>ort of Leghorn, \\ith the firm of Lloyd & Co., of the same place, Merchants and ship- pers of oil, it was stipulated that the ship was to proceed \\ith a cargo of goods to London or Liverpool, at the charterer's opt and to deliver the same agreeably to Bills of lading on !> paid 285 in a lump sum. Under this charter-party, Lloyd & Co. loaded the vessel with various goods, consisting of rags and wool, and forty-seven casks of olive oil, for the latter goods the Master of the ship gave a Bill of lading in the usual form, and on which was this memo- randum : " Weight, measurement, and contents unknown, and not accountable for leakage." The Bill of lading was indorsed in blank by the shippers, and assigned to the Respondents, who became the owners of the forty- seven casks of oil. Lloyd & Co., under the charter-party, appoi : one Tilo Mirandohe, the regular Stevedore of ships at Leghorn, to superintend the stowage of the ship, who superintended the stowage of the cargo, and certified that he had paid particular attention, and taken every possible precaution, to protect the same from damage. Among the goods received on board and stow. d. were 111 bales of wool, and 34 bales of rags, which \u-re stowed in the same hold with the casks of oil. The ship sailed from Leglwm, and, in the course of her voyage,, encountered bad weather, and heavy seas, and, in consequence, pitched, and a considerable quantity of oil leaked from the casks and was pumped up. She arrived at Liverpool, and, on delivering her cargo, it was found that a large quantity of the oil had leaked out, and that many of the casks were wholly or partially empty. At the hearing of the suit in the Court below, it was contended VOL. L] CASES IN THE PEIYY COUNCIL. 233 on behalf of the Eespondents, that this leakage was not leakage J. C. within the mealing of the Bill of lading, but that it arose in 1866 consequence of the bales of wool and rags being stowed in the OHBLOFP same hold with, and near the oil, and that the wool and rags, BBISCAIX. in the course of the voyage, having become heated, the staves of the casks were thereby dried up, and the casks rendered leaky. HELENE." On the part of the Appellants, it was, however, contended that the leakage had been occasioned by the slackness and badness of the casks; but that, even if it had been occasioned, as alleged by the Respondents, by the stowage, the Appellants were not responsible, inasmuch as Lloyd & Co., the Respondent's agents, had not complained of such stowage, and the Respondents could not be in any better position. The evidence of the Respondents shewed that, upon the arrival of the Helene at Liverpool, many of the casks were wholly or partially empty, causing a loss of 2,001 gallons out of about 4,888 gallons of the oil, and that the usual percentage of leakage was about one per cent. only. And they examined witnesses to prove that unwashed wool and rags, stowed in the hold of the vessel, being in juxtaposition to the oil, without any attempt made to- secure ventilation, was dangerous, and that the loss of the oil would be occasioned by heat, arising from the wool and rags having slackened the casks. They proved that the casks were good, and that they had not been disturbed by the motion of the ship in her voyage. The Appellants insisted that the loss of the oil was occasioned by the perils of the sea, and the inferiority of the casks, and not by the heating influence of the wool and rags, as deposed to by the Respondent's witnesses. The learned Judge (the Right Hon. Dr. Lusliingiori), by his judgment, after stating the effect of the evidence, and holding that though the leakage might have been occasioned by the defective state of some of the casks, yet that the stowage of the wool in the hold was the cause of the leakage, proceeded in these terms: " Assuming, then, that the loss was occasioned by reason of im- proper stowage, by want of sufficient separation of the oil and wool by bulkheads, or otherwise by want of ventilation, the question, arises, have the Plaintiffs a right of action against the ship in this Court ? This is denied on the part of the Defendants. Their argument. ; lerstand it as toll. !- A- ! .111. the I 1 ! esof the liill of ladinL'. to \\h..!ii t' . tho goods baa puscd l.y MMon of the indonea '! transf.-rn -.1 to and rested in !h. in all rights of E liabilities in respect of such goods, as if nti-act contain.-*! in the Mill ^ had been ina ! with themselves. Then by th-- *'>th Action of (In- "2 1 Vi<-t. <. in. ,,t' the Admiralty O> 1SI1, praeticallv. the Plaintiffs acquire the same rights against l he vessel itself; consequently, the Plaintiffs have no better right than Lloyd & Co., \vho shipj>ed the oil. it is argued that Lloyd&Co. woiill havo had no right; an-1. 1 fore, that the Plaintifls have none. ] .uwl on \vhir-h it i.s con- tended that the shippers. Lloyd & Co., uoiiM have had no ri is. that they, ainl not the 3Iaster, \\ <}- r-y the Merchants at their own risk and se, and to be received and stowed by the Master as it niiirht be presented for shipni"! *. I'-ut though this was so, and although the shipping of oil with wool is, as, I think, it i.s prove 1 Ly the . i ha/anlous measure; yet if the Master of the vessel will ih. -in both together, I apprehend he is bound to tak traordinary precautions to preV'-nt mischief, and cannot p: himself by showing that both the kinds of goods were sent on board by the same person; for an authority by the shipper or charterers to stow the goods, clearly does not amount to an autho- rity to stow them in a careless or ne^li-jent manner, for which I cite Hutchinson v. Guion (1). Again, it is said that the whole cargo was, in accordance with the charter-party, stowed 1 Stevedore appointed by the charterers, and, therefore, that the Master could not be liable for bad stowage. But on reference to the charter-party it app- ars that the terms \\er-. 'the charterers being allowed to appoint a head Stevedore at the expense, and under the inspection and responsibility, of the Master, for proper stowage.' These words appear to me to answer the objection, and (1) 5C. B.(X. S VOL. I.] 235 remove the case out of the authority of Blakie v. Stenibridge (1), where similar words were not contained in the charter-party, and where the Court held the true construction of the charter-party to be, that the cargo was to be brought alongside at the risk and expense of the charterer, and that it was to be shipped and stowed by his Stevedore, and consequently at his risk, though at the expense of the shipowner, and subject to the control of the Master, on behalf of the shipowner, to protect his interests. There seems, therefore, no reason for saying that Lloyd & Co. would have been estopped from suing the Master for damages on account of improper stowage. But even if they would have been estopped, why should it follow that the Plaintiffs would be estopped also ? The shippers and the Assignees of the Bill of lading do not stand to each other as agent and principal, but as vendor and purchaser. The rights and the liabilities which the Assignee of the Bill of lading, under the first section of the 18 & 19 Viet. c. Ill, hastrans- ferred to him, are the same rights and liabilities in respect of such goods as if the contract contained in the Bill of lading had been made with him ; but in these cannot be included the rights and liabilities as between the shipper and the Master dehors of that contract in respect of other goods, or of the charter-party. If so, the Bill of lading would always incorporate the charter-party, which it never does unless expressly stated : CJiappel v. Com- fort (2). I think the rights of the Plaintiffs, as Assignees of the Hill of lading, could not be curtailed by any liability of the Charterers towards the Master, not being a liability imposed upon the Plaintiffs under the Bill of lading. The objection, therefore, to the Plaintiffs' right of action, I think, fails on every ground ; and there must be judgment for the Plaintiffs, \vith costs." The present appeal was brought from the decree founded on this judgment, and was argued by Mr. Edward James, Q.C., and G. E. Williams, for the Appellants ; aii'l Mr. Brett, Q.C., and Mr. V. Lushington, for the Eespondents. The principal questions raised by the Appellants were : First, that the loss of the oil was prima facie a loss by leakage, (1) 6 C. B. (N. S.) 894. (2) 10 C. B. (N. S.) 802. VOL. I. 3 U J. C. 18GG OHBLOFP v. BRISCALL. THE " HEI.KNE." CASES IN THE PBIVY OOUN< [L.B. \\hich. ; I'.ill of 1 .- Appellants, as shij i- were n 'he onu* probanJi, therefore, was UJH.H Oin.Tir R-'-j-oIideMN to -ho\\ artirn;ati\e|y that -lleh 1-,^ \\as oer.i-i. -lied r b\ the toe of tin- Appellants, or their servants, and upon the Appellants b ive any such negligence. shew affirmatively how the loss had been occasioned. ] the Respondents' e\idencc was insufficient to establi>h such n- -liL-eiice, and. at all events, was rebutted by the evidence of the Hants: and that the judgment was against the weight of evidence. Secondly, that as the only ne; by the Res] ents was the sto\\inir t"wapj haill of lading, and that there was no evidence that th- Master knew that there was any risk in st oil and bales of wool and rags top -I her, or that there was any usual or reasonable precautions which they mi^ht have taken to nt the loss in question which the Apj>ellants did not take, and that there was no such negligence as would render : liable for the damage in law : 2'hillips \. Clark (1). That the cargo was stowed under the superintendence of a Stevedore appoint- Lloyd & Co., and that the leakage occurred in consequence of the badness of the casks, and the stress of weather. Fourthly, that as Lloyd & Co., the shippers, being the agents for the Respondents for the shipment of the oil, had themselves ap- proved the shipment and stowage of the oil, wool, and rags tog- and as the Respondents were bound by the acts of their agents, and they had, in fact, approved of the manner in which the oil and cargo was sto ild not recover for any loss occasioned thereby, and that such conduct would by the Bills of Lading Act, 18 A 1!' Viet. c. Ill, support a plea of leave and license in an action brought by the indorsees of the Bill of lading. They cited on these (1) 2 C. B. (N*. S.) 15G. YOL. I.] CASES IN THE PEIVY COUNCIL. 237 points : Hutchinson v. Guion (1) ; Hovitl v. Stephenson (2) ; Major v. JFMe (3) ; Grill v. General Iron Screw Collier Company (4). For the Respondents it was urged, first, that the negligence imputed to the Appellants was the improper stowage of the casks of oil, and that the exemption by the memorandum in the Bill of lading, that the shipowners were not to be liable for leakage, meant, according to the custom of the trade, ordinary leakage, which is taken to be 1 per cent., but not, like the present case, -an extraordinary leakage, amounting to a deficiency of 2,000 out of 4,880 gallons. Secondly, that if the stowage was bad, even if Lloyd & Co., the shippers, assented to the stowage of the oil, wool, and rags in the same hold of the vessel, such consent did not affect the Respondents, the holders of the Bill of lading : Foster v. Colby (5) ; and con- stituted no defence to the action by them, as it could not include leakage caused by the negligence of the shippers or the perils'of the sea. The cases of Alston v. Herring (6), Gilkspie v. Thompson (7), BlaiJcie v. Stembridge (8), Sack v. Ford (9), Davis v. Garrett (10), Brown v. North (11), Brass v. Maitland (12), were referred to. Judgment was delivered by THE LORD JUSTICE TURNER : This is an appeal from a judgment of the High Court of Admiralty in an action brought by the Respondents, under the provisions of the Admiralty Act, 1861, as owners and Assignees of the Bill of lading of forty-seven casks of oil against the Jlelene, of which the Appellants were owners, and in which the oil had been carried from Leghorn to Liverpool. When the ship arrived there many of the casks were partially empty, and this action was brought to recover damages for this leakage of the oil, as having been occasioned by negligence and breach of contract, and breach of duty on the part of the Appellants. The great question in the action was one of fact, viz., what was (1) 5 C. B. (X. s.) 149. (2) 4 C. & P. 469. (3) 7 Ibid. 41. (4) 35 L. J. (X. S.) C. P. 321. (5) 3 II. & X. 705. (6) 11 Ex. 822. (7) E. & B. 477. (8) 6 C. B. (N. S.) 894. (!') 13 C. B. (X. S.) 90. (10) 6 Bing. 716. (11) 8 Ex. 1. (12) 6 E. & B. 470. 3 U 2 J. C. 1866 OHULOFF v. I5KISCALL. THE " HELENH." IS6G Aug. 4. j;;v< CASES IN Till: 1'KIVY COUNCIL. R. .11 the cause of the leakage \\lii.-h \\as the su 1 leariicl .lu-l-.- i tin- ( \-liiiir.il:_. after a most ounpli-ti- anl al'l- \aniiMatin "I" th'- i \ i\ ;!. HK.I.DCK.** per ik of the sea, not 1>\ th. to juality of the casks, bi th.-ir being sto\\i ! in tin- same hoM \\ith some rags an-1 \\ which formed part of the car-" that was taken on board at i tin- charterers. Aasuiuiiur that this was the cause of the leaka^- . th>- AJ>I i th.- >hi|M. \\jii T>, .1, ny that they are responsible for it, because, 1-y tin* M' muraii'lum in the margin of th<- I Jill of lading, tin- >hip- oun. is are not to be accountable for leakage. On the aiL r uin. nt different views were suggested by Counsel as to the meaning of this word "leakage." For the Kespomhii; \\as ront.-nilrtl that tin- \\ord means only ordinary leakage (which, according to the evidence, amounts \ 1 \ -r cent.), and does \tend to extraordinary leakage, such as that in question, amouut- _ to an alleged <1 licit ucy of 2,000 gallons. On the part of the Appellants it was denied that, acconli; the natural and ordinary meaning of the words enipl v amount of leakage was at all limited in quantity ; but it was ceded that, in accordance with the case of Phillies v. Clark (I), \\OP!> in the margin did not protect the shiiHmncrs from responsi- bility for leakage occasion- ! 1>\ their own n- -li-. nee. It was, however, cont :i In-half of the Appellants, that th.? Plaintiffs must, in order to entitle themselves to the action, g satisfactory proof of such negligence, and that th. v had failed to do so ; and, after a careful consideration of the case, we have come to the conclusion that this contention on behalf of the Appellants is well foUU'lu'l. withstanding the evidence of thenotoriet\ 7. -erpool of the ileh-U-rious consequences of the collocation of oil in casks with rags and wool, or other matters tending to generate heat, we do not belii.? ve that either the shippers or the shipowners in this case re aware of them. If the shippers knew of them, they also knew that the wool and rags which they made a part of the cargo (1) 2 C. B. (N. S.) 156. VOL. L] CASES IN THE PRIVY COUNCIL. must [necessarily be stowed, and were in fact stowed, in the single hold of the ship, and with this knowledge we think it impossible that they should have abstained from mentioning the inevitable leakage in the then condition of the ship, and from requesting some means to be applied to prevent it, such as dividing the hold by bulkheads. Nor do we think the shipowners were in a better state of knowledge on the subject. Had they been so, it is incon- ceivable, as it seems to us,^that they should have received a cargo so composed without some remonstrance with the shipper for selecting such mischievous companions to form part of the cargo with the oil. If the shipowners were ignorant of the consequences of taking such a cargo, we do not'think it amounted to culpable negligence on their part to stow, in the only place they could be stowed, the goods which, under the charter-party, the Charterers had a right to insist, and did insist, should form a part of the cargo. On this question it is, in our opinion, very material to consider -not only that the Charterers so insisted, but also that the cargo .iccording to the terms of the charter-party, received on board, and stowed as it was presented for shipment by them, and that they were shewn to be very frequently on board as the stowage progressed, and were well acquainted with the mode of stowage (\\hieh was'effected in a masterly way), and never made any com- plaint of or objection to it. Nor do we think the ignorance of the shipowners in itself amounted to negligence. It can hardly be imputed as misconduct that the shipowners should be ignorant of latent mischief of this nature, when Lloyd & Co., who are proved to have had very great experience as Oil merchants, were in the same state of ignorance. Put even if the Appellants knew, or ought to have known, what the consequences of such stowage must be, we are not prepared to iiat they were guilty of negligence in not putting up bulk- heads. Assuming that they could have been so constructed as to protect the part of the hold where the oil was stowed from the ii ill nonce of the heat generated by the wool and rags, still this e.iuld not have been done without much trouble and considerable iad, \\hich we cannot concede that the shippers had a right to thmw on the shipowners, because the shippers chose to load the ship they had chartered with a cargo of such a nature. And to J.C. 1866 OHRLOFF v. BlUSCALL. THE " HEI.KXE.'' CASES IN THK MUVY 001 L. II. Ollli : r. ! THE ~ Hi : i M this we may add that. -hijH.\\m-rs to have beeik aware of the usual consequence's . a cargo in th-- nine hull, they mi-lit have well come to th- shi|i*-rs Here also aw an- <>t 'ih.-m, ami would not have jmt cargo on board \\ul-* tiny li.i-l loen assn t the caaks were of sueh . iiiiiirv >tr. n-tli and goodness, as to be capable resist i n u r tli-- u-ual inilueiico of a heated temperature. For these reasons we think tin/ Kesiumdents tail-- 1 to j,i the leakage was caused by the Ap{>< Hani- It maybe observed that the I-ari:.-d .Ii; Court appears to have adopted the construction oi tl, "leakage," eont -ml. .1 t'..r l.y the Resi>ondents vi/.. that it means- "ordinary leakage" only, ami consequently th- jud-im -nt adyerts but little, if at all, to the qiu/stion \\h-th- nee on the ] ot the shipowners had been proved. But we do not think such a construction allouah. con- dition that the shipowners are not to be accountable for leakages does not. in its ordinary and -numnntical sense, put any limi: the quantity of leakage; and on prim-ipl--. tin n -fore, we do not think it would be justifiable to add any such limit t< its terms r are we aware of any authority for doing so. It follows that, in our judgment, the Memorandum in the Bill of lading protects tho shipowner as to all leakage except that caused by n-'-li-t-m-c, and, therefore, if no negligence is shewn, there is no cause of action. Another point was raised and argued before us, viz., that the conduct of the shippers as to the stowage was such, that it would support a plea of leave and license by the shippers if the action had been brought by them. But it was contended on behalf of the Respondents that, by reason ot the Bills of Lading Act, 18 & 19 Viet. e. 111. such a j>l-a was not allo\\al>l- in an action by t indorsees of the Bill of lading. It i- unm-o-ssary, however, to- decide this point, as our opinion is aguin-t th. Respondents on the question of negligence. On these grounds tin ir Lordships will humbly advise Her i --sty that the judgment of the Court of Admiralty should be- reversed, with costs, both in the Court below and on this appeal. Proctors for the Appellants : Deacon, Son, & Rogers. Solicitors for the Respondents : Cliester & Urquliart. VOL. I.] CASES IN THE PRIVY COUNCIL. KICHAKD KIEBY AND OTHEKS APPELLANTS ; j. c* AND 1866 THE OWNERS OF THE - SCINDIA," A HER CARGO THE "SCINDIA." Appeal for insufficiency of sum awarded Deviation of vessel's course in performance of salvage services rendering Policies on salving vessel void- Derelict vessel, salvage of Sum awarded for salvage services by a Vice- Admiralty Court abroad, increased on appeal. The Judicial Committee is always reluctant to review cases of salvage, which involve the exercise of the discretion of the Judge of the Court below, hut, being a final Court of appeal, will, if the justice of the case requires, increase the amount. The question how far a deviation in a vessel's course, in the performance of salvage services to life or property, may be the voidance of a Policy of In- surance is not satisfactorily settled, though the risk of such may operate on the Judge's mind in determining the amount to be awarded for salvage services. A moiety of the value of the vessel and cargo, in a case of the salvage of a derelict, was formerly the amount awarded, but the Maritime Courts now give only such amount as is fit and proper with reference to all the circum- stances of the case, having regard especially to the value of the property salved. In a caso where the vessel was derelict, and her value, with the cargo on board, exceeded 30,000, was salved by two vessels, one of which, with her cargo on board, was worth 150,000, and the other above 3,000, and a tender of 2,000 for salvage services had been refused, which sum was awarded by the Vice- Admiralty Court: the Judicial Committee, looking at the respective values, and taking into consideration the additional risk to the salvors from having to make a deviation in their course, held that sum in- sufficient, and increased the amount of salvage by 1,000. Admission of fresJi evidence on appeal Leave to adduce fresh evidence upon appeal refused : it appearing that the matters to which such evidence referred regarded, first, the loss of insurance by reason of the deviation of a vessel from her course in effecting the salvage services, which fact was sufficiently before the Court below to enable it to Present : DB. LUSHINGTON, THE LORD JUSTICE KNIGHT BRUCE, THE LORD JUSTICE TURNER, and SIR EDWARD VAUGHAN WILLIAMS. 1M-J CAS: rtiou the amount of Mirage : and, aeoondly, that the further . t to meet a charge affecting cha ght hare been i^v*, mt ; lication to the Court l!< '.;!rt of the Cape of Good Hope, in a cause' of salvage, brought ly th<- Api*-llants, tin- o\>n,-rs, :md th-- Master an 1 crew of -.ill. (1 i: M, iiml tin- Master. <>\\i. :' the ship Am inta, against th.- v .Mi-lth.-l; tli- '>:' h'-r cargo, in respect of services n of the alf -lia. The Alicia Annie, a brig of 312 tons, was, at the tiiuc 't tlic salvage services in question, on a voyage from J iver- pool \vith a '.: !: ral cargo; she was maniifl by Kirly, tli- M ::i-r, ami . hands. The Aminta, a ship in prosecution of a voyage from Calcutta to London, lalcii \\ith a p n.-r.il carpi, and having a cr.-u of t- men. It app Mi-cd that the Scindia,& ship of about 893 tons i surement, sailel from Calcutta in July, l^ abandoned she had lost her mainmast and h<-r mi/i-n topmast; *\i<- ha-1 cme of her for .1 her lower fore- titpsail, spankiT, jilt, or fuivtopniast staysail, set; a portion of lu-r main y th-- Alicia Annie. Wln-n so fallen in with, she was about twelve or fourteen mil- > off Cape Receif. Tin- \\i-a1 h'-r at th- time was lin--, \\ith a faint breeze Mo\\ing from the south-west, having th- ft'<-ct of neutrali/i.Mu r th- current, which runs off Cape Receif, in a north-easterly direction, at the rate of about one knot per hour. The Scindia was board- <1 l'\ the ml crew of the Mi >-. At about M I-.M., the Aminta also came up with the Scindia, and her Master immediately s- ,-nt his second oflBcer to the Scindia. An agreement was come to between the Masters and crews of the Aminta and VOL. I.] CASES IN THE PRIVY COUNCIL. 243 Alicia Annie that they should join together in taking the Scindia J. C. into Algoa Bay, and that the salvage to be earned by so doing 1866 should be divided in equal moieties between them. The Scin- KIUBY dia was brought, by their joint aid. to anchor in Alaoa Bay at * " a j THE OWNERS about 4 r.M. of the following day, when the salvage service ter- ^ OF THE ^ rniiiated. The aggregate value of the Scindia, her cargo, and freight, amounted to the sum of 30,281. 18s. 2 d. The Appel- "Sc^u," lants, the owners, with the Master and crew of the Alicia Annie, together with the owners, Master, and crew of the Aminta, joined together in instituting a cause for salvage in respect of their joint services, and in their petition stated the services performed, and the agreement which they had made, that they should divide the salvage equally. The Kespondents, the owners of the Scindia and her cargo, in their responsive plea, made a charge against the Master and crew of the Alicia Annie of having wrongfully taken divers articles from the Scindia, for the purpose of converting them to their own use, but they made no charge of misconduct against the Aminta. The Kespondents tendered to the owners, Master, and erew of the Aminta and Alicia Annie, in respect of all their joint > ] vices, the sum of 2,000, which sum they brought into Court. On the 16th of March, 1865, the Judge of the Vice- Admiralty Court, the Hon. Sydney J. Bell, by an Interlocutory decree, pronounced the tender of 2,000 to be sufficient, and held that the same ought to have been accepted by the salvors, and he further expressed his opinion that the charge of pillage made 'nst the Master and crew of the Alicia Annie, had been made out, and that he was disposed to withhold from them their portion < >f the sum tendered. An appeal was asserted by the Appellants, the Masters, owners, and crew of both the Alicia Annie and the Aminta, and a motion made on their behalf for payment of the money out of Court. This, however, the Judge refused, observing that the cause was not in a position in which such an order could be made, inasmuch as all that had been done on the 16th of March was to find that the tender \\as good, and ought to have been accepted without going further. The Court thereby intending to give the salvors and >pondents an opportunity of considering what their future course 1M-1 CASES IN Tin: 1'KIYY COUNCIL. [I. J.C. should be, a -i> nt tinx- ha~. 1 t ii.iM** thi-iradviaera, 1806 *>r tin- jmrties in tin < ininuni<-at- t<> th- ir constituent* K^ v in England what ha 1 fallen fn.m tin- Court. Tm '; uv re this decree was pn-imunced, tin- Alicia Annie wei o* THE /in charge of FraMr, and A' irlij, her Master and 0*1 was himself ubs. nt, h:i\inir I'-M ' iny some time previous, ' XWA" an( l ignorant nt th- any allegation against himself or his ship's crew of pillage of tin- Sciwlia. Two days : hearing of the cause, and before judgment was delivered, an affidavit was ni;. raser and deliver, d to the Judge, which alleged that tain art found by him on board the Alicia Annie, which bore the name of tin- X-.-india, and appeared to have belonged to that vessel. This affidavit was the only evident-' support of the charge against the Alicia Annie, and Kirby 1> absent from the Colony, the Judge offered to suspend his judg;: in order to give him an opportunity of answering it, but such offer was declined bv Counsel on his behalf. m It further appeared that the Alicia Annie, in charge of Prater, on In T voyage to England, had, in entering the harbour at Queenstown, struck on th<- ureck of a sunken vessel, and was taken into harbour in a >inkinu r state, and became a total M: and that the underwriter refused to pay the insurance in conse- quence of the deviation the vessel had made in rendering salvage ; vices to the Scindia, from which, as it was alleged, a loss resu the Appellant, Kirby, of 3,150, the amount of the insurances OB the Alicia Annie, her freight and cargo. I n imply a decree pronouncing for the sufficiency of the tender of LJ.< io< i. and it does not appear that that decree was, as it at present stands, in any way arrived at, or affected by, the charge against (1) 6 East, 45. (2) 2 Hag. Ad. Rep., 338. (3) 1 EC. & Ad. Rep. 161. CASES IN Tin HH KiitUY Tin .M i.> or 'i *8u TlIK i> uo ( r supposing t .'. . . ;i:,-' l\i,-i j wua i;:.Ui,o\\:i )., him j>i \i..'i^ ! hi-, In-iii tin- ( ml hi- ( '<.iin> 1 ii.ivin- - the Court, without waiting to oommiu \\ith his client in Euj' :.-lu-.vo against such an applica- tion as this lx.-iii rnt-ita : n-d. .1:1: : Their lordships have consul - application, mi 1 th<-y are nion that no or l-r ought to b mad.- nj> -u this nn>? application is for the admission of t'n -1 tin- hrarintr 't % the ajjM-al. no\\ {tendim: l.-t'or- this Cou; matt, rs which hav- (M-cunvd since the hearing of the cause in the Court bel >\v. Now, where parties have gone to a trial of the question at iaane 111*111 th-- .-vidence which th'-y have at th-- time, and \vhi-h th--y able then to adduce, and have made no app! ho the CV.urt brlo\\ to suspend the trial until further evidence can be hroiiirht forward, it evidently requires a very strong case to indm-f any Court of appeal to admit further vidence, in - to adjudicate upon that question which has been determined in the Court bel"\\. Th.- .vidence now proposed to be adduced is upon t\\ First, it is said that since tin- trial of this case in th<- Court 1 the insurers of the Alicia Annie, by reason of her having deviated from her course with a view to save the Scindia, which i subject of tin- suit, have refused to pay the insurance, and that a loss of 2,000 has in consequence been sustained by one of tin- H \\hi.-h salved the Scindia, and th.- .-vid.-ne- \\hi.-h i- posed to be ofiered is to shew the loss of that sum of 2,000. The question whether there was a danger of the loss of th-- insurance was distinctly put in issue in the Court below. It \\as a question which the Judge had to consider in determining th.- amount whi.di he would award for this salvor's services, and :il\ \\. cannot say that because the Judge has not in terms stated that he has taken that into consideration, it did in fact form an el. -in. nt in the judgment which he delivered, and in the amount which he awarded to the salvors. It is obvious that the conse- VOL. L] CASES IN THE PRIVY COUNCIL. 247 SCINDIA." THE SCINDIA." quence of admitting fresh evidence of the amount of the salvage, J- C. to be adduced upon the hearing of the appeal, would be this, that no 1866 question upon the amount to be awarded for salvage services could KIKBY be entertained until it had been determined whether the insurance THE *' XERS> had or had not been forfeited in consequence of a deviation of the course of the vessel for the purpose of effecting the salvage. Now, that is a consequence which this Court cannot look at without considerable alarm ; and certainly, upon that ground, if these parties had thought that the deviation might vitiate the insurance as they did think, for they brought it before the Judge' if it was desirable that this matter, whether the insurance had or had not been forfeited, should be determined before the trial of the cause, their course was very plain : to apply to the Judge to suspend the trial until that point had been determined ; and as they have not thought fit to take that course, their Lord- ships do not see their way to relieving them from the consequences of their own omission. The other point upon which evidence is proposed to be adduced, as affecting the amount of salvage, is, that a charge has been 1 brought forward against Kirby, the Captain of one of these vessels \\liich effected the salvage, of having pilfered goods from the vessel that was salved. Whatever view their Lordships might have taken of this case, if it had not been in any manner dealt with by the Court below, this is clear, that the charge was distinctly brought forward by an affi- davit of Eraser, made in the cause after the hearing of the cause. The Judge noticed that affidavit, and received it evidently with- out any objection on the part of the parties who are now moving for the admission of additional evidence to meet the charge it went to establish ; and the parties, with the knowledge of that affidavit, and with the opportunity offered them by the Court below of ni 'ting the charge which was so made, elected to take the judgment of the learned Judge upon the case as it then stood. We think, in this state of circumstances, to relieve the Appel- lants would be in effect to do that which this Court is certainly not in the habit of doing relieving parties against their own election, and against a miscarriage on their part in the course of the conduct of the cause. On neither of these grounds, therefore, 248 CASKS IN : : :;IVY corNcn.. ;i, u. KlRBT r. Tiir M '> or THE Tmt do we think that it is neOMBury. >r that it \\..uld IN- riirht. I Order should !> made upon 1 : >n. It may be possibl- that \\hen th" queMi..n of th- e. which is the real sulij- by this ( 'ourt. an application may be made to this Court we can- not tell \\heth'-r su-h application \\ill be made or not- bute the amount salvor> (juestion should arise, if any application like tin- present should be made, we shall then see whether, upon th.- us, there is sufiiei<-nt to -nal.le, us to dispose of that ; it will be quite in our po\\.-r. if \\e think then- is not > evidence to enable us so to dispose of the question, to remit case to the Court below for further inquiry UJM.H that point. \Ye think, then-tore, that that furnishes another reason against , nt in:; tin- pivs.-nt apj)licat ion, as it evidently sliews that pr--mature. inasmuch as it is quite unkno\\n \\ h'-th< r any I question can or will arise UJK.H the hearing of the appeal. On these grounds th. ir Lordships think this motion must be refused, and \\ith QQ 186C The appeal now came on for hearing on the : circum- June 25, 26.* stances above stated. Mr. Manisty, Q.C., Mr. Butt, and Mr. V. Lushington, for th" Appellants : This case lies in a very narrow compass. The Scindia was a derelict, and, with her cargo, of the value of above 30,000, was preserved from total loss by the Appellants under circumstances which entitle them to a liberal compensation for their services. The sum of 2,000 was wholly in;:d< qiiate as remuneration for the salvage s'-rvice remind by the App Hants. It is clear that the loss of 3,150 sustained by Kirby, in consequence of policies of insurance on tho ship Alicia Annie and her cargo l> avoided by donation in her course, ought to be taken into account in considering the sum awarded for salva."-. AS also in respect to the owners of the cargo for breach of contract, Wilson v. Tlie Newport Dock Co. (1). * Present: DR. LusnixcTOS, Sin Jonx COLEBIDGE, and SIB EDWABD VAUGHAX WILLIAMS. (1) 1 L. R. Ex. 177. TOL. L] CASES IN THE PEIVY COUNCIL. 249 KlUBY V. OF THE 1 SCINDIA. THE ' SCINDIA.' J C The Queens Advocate (Sir JR. Phiflimore), and Mr. K C. Clarlcson, IRfifi for the Kespondents : This Court, like the former Courts of Delegates in Admiralty cases is averse to interfere with the discretion of inferior Courts in varying the amount of salvage service. This is not a case of appeal on the question of distribution, that question has yet to be settled by the Court below; but it is an appeal for the purpose of in- creasing the sum decided by the Court below to bo amply suffi- cient remuneration for the services performed. We submit that the tender of 2,000, and the subsequent award of that sum by the Judge of the Vice- Admiralty Court, was an abundant recom- pense for the salvage services performed by these two vessels. Their Lordships, at the conclusion of the argument, desired to IP ar the following case, The True Blue, which involved the same principle, namely, the increase of the sum awarded by the Court below for salvage services ; before giving judgment. Proctors for the Appellants, the owners, &c., of The Aminta : Priicliard & Sons. Solicitors for Appellants, the owners, &c., of The Alicia Annie : Gregory, Rowcliffe, & Bowclijfe. Solicitors for the Kespondents : Walton & Bubb. CASES IN THE ! [L. It (;I:OK<;I: MICHAEL PAPAYA: D A,PELHHT8> . CHARLES HOCQUARD AND ANOTHKR . . . RESPONDENTS. Til' <>\ A1TF.AL FKOM TIIK VICE-ADMIT. A I /IT COURT OF MAI. Derelict, salvage of A^^ul for insufficiency of sum awarded allowed and salvage '. In a case where a derelict vessel and cargo of the value of 1,452 was salved by a steamer, which, with her cargo, was of the value of 30,000, the Vice- Admiralty Court awarded 300 for salvage : Held, by the Judicial Com- mittee that, under the circumstances, that sum was not sufficient, and tho same increased to 450. 1 HIS appeal was brought from a judgment of the Vice- Admiralty Court of the Island of Malta. The cause from uhirh tin- appeal was brought arose out of a claim t'.ir salvage, brought ly tin- Appellants, the o\\ners, Master and crew of the steamship Laconia, against the schooner True Blue, of which the Respondent was the Owner and Master ; for services rendered in towing the True Blue into the harbour of Malta. The True Blue, a schooner of ninety-six tons bun" bound from Ancona, \\it\\ a cargo of wheat, to Cork or Falmouth, had been abandoned by her blaster and crew through stress of weather; and on the morning of the 14th of February, 1865, was fallen in with by the Laconia, at a considerable distance from the Island of Malta. The Laconia was a screw steamer, of 782 tons burthen, of 200 horse-power, and of the value of about 30,000, and at the time was on a voyage from Alexandria to Liverpool, laden with a valuable cargo, intending to rail M-tlta, and did not change her destination, though she deviated from her course, for the purpose of salving the True Blue * Present: DB. LusmsGToy, SIB JOES TATLOB COLEBIDGE, and SIB EDWABD VAUGHAN WUJJAMS. VOL. L] CASES IN THE PRIVY COUNCIL. 251 her cargo. She commenced to tow the True Blue at about noon on the 14th of February, and towed her to Malta, where she arrived at about 2 A.M. on the 16th of the same month. The p APAYANNI total value of the property salved was 1,452. 15s. r r J t IIOCQUARD. A suit was brought in the Vice- Admiralty Court of Malta, and THE " TRUE the True Blue arrested ; appearance was entered for the Respon- dent; whereupon the Master of the Laconia, on behalf of the Appellants, filed a protest in the Court of Commerce of Malta, and desired, under the authority of that Court, to declare the par- ticulars of his voyage, and the vessel found by him abandoned at sea ; but the Judge of the Vice- Admiralty Court (Sir Antonio Micalef), acting under the rules and regulations for the several Courts of Vice-Admiralty abroad, established by the Order in Council of the 27th of June, 1832, in pursuance of the 2 Will 4, c. 51, and further enforced by the 26 & 27 Viet, c. 24, s. 24, ordered the Appellant to bring in his petition without prejudice to the Respondent s right to object at the hearing to the jurisdiction of the Vice-Admiralty Court of Malta. The Appel- lants accordingly brought in an Act on petition, setting forth the above facts, and the circumstances under which the True Blue became a derelict, and the nature and particulars of the salvage service rendered by the Laoonia; and praying that such sum might be decreed to them for salvage service rendered and losses sustained. The Respondents, in their reply, admitted the parti- culars of the services pleaded to be substantially true. The cause was heard on the 3rd of April, 1865, when the Judge of the Vice- Admiralty Court, on the preliminary exception to the jurisdiction of the Court, considering the 26 & 27 Viet. c. 24, and the rules and regulations in force under that Act, and the Orders in Council of the 27th of June, 1832, and 6th of July, 1859, and that, accord- ing to the 10th section of the 26 & 27 Viet. c. 24, Vice- Admiralty Courts have jurisdiction in respect of claims relative to salvage of ships or goods therefrom, and that according to section 2 of that Act the term " Vice- Admiralty Court" meant any of the Vice-Admiralty Courts enumerated in the schedule annexed thereto, among which was Malta ; and that Courts in Malta have hitherto exercised jurisdiction in salvage cases, decided, that, not- withstanding there was another Court (the Court of Commerce), VOL. I. 3 X CASKS IN TUT. I'llIYY CnlNCII, having power to take cognizance of similar c pro- 1886 sent cause was sn > of tli" V, -\ : VTANM Court of Malta, and upon tli<- in. -nits decreed the gun ><) to n r ^ the Owners, Master and crew of the Laeonia, for salvage service rendered by tlu-m to the True Blue and her cargo, with costs. K." Th.' Aji -Hants ;I].|N ;il.-l from this decree, and prayed that a larger sum than ^! a !ings, that at the time when the Laeonia came up to the True Blue she was not only a derelict, l>ut in such a condition that the total loss of the ship and cargo would have been inevitable but for the salvage service we rendered. In performing such services the Laeonia was delayed on her voyage during a period of not less than twenty-three hours ; the expenses incurred by such delay, with the wear and tear of the vessel, exceeded 100. The value of True Blue, with her cargo, is admitted to be 1,452. 15*., without her^ro rota freight, uhich we say ought to be add. <1. There was, besides, the extra labour of the Master and crew of the Laeonia, the fatigue and exert ion they were compelled to undergo to be taken into consideration. Added to which, it must be borne in mind that in rendering such salvage services the Laeonia, to some extent, deviated from her voyage, and the Master took upon him- self a heavy and anxious responsibility, as well on account of such deviation, as of the great peril and loss to which he was obliged to expose his ship and cargo. On these grounds, and upon the VOL. L] CASES IN THE PEIYY COUNCIL. principle of the decided cases, we submit that we are entitled to J. C. a larger sum than 300. The principles on which Courts of 1866 Admiralty proceed lead to a liberal remuneration for salvage ser- PAPAYANNI vices : Arnould on Marine Insurance, p. 477 ; The Sarah (1) ; HOCQCABD. The William Beckford (2). The Inca (3), which is similar to the ~~; case here, was one of derelict; and in this Court the Judicial BLUE." Committee, in a case where the salvage awarded by the High Court of Admiralty was 250, increased the amount to 500 : The Medora Caledonian Steam Company v. Stutton and others (4). Mr. Aspinall, Q.C., and Mr. E. C. ClarJcson, for the Respon- dents : There has been ample remuneration for the services performed. Looking at the value of the ship and cargo of the True Slue, and the circumstances under which the salvage was effected, there was no such risk incurred as is insisted on by the Appellants, who were fully remunerated by the sum of 300 awarded them by the Judge of the Vice- Admiralty Court of Malta. This Court is unwilling to interfere with the amount of salvage awarded by the Court below : The Neptune (5), The 'Clarissa (6). There was no such deviation from the course by the Laconia as would entitle her to an increase of salvage. The only inconvenience sustained by her was the delay of a few hours on her voyage. 1 >i:. LUSHINGTON : In these appeals the same question arises, and upon which similar arguments have been used, though the circumstances and the value of the property concerned in each case are totally different. It is perfectly true, as it has been argued on behalf of the Re- spondents in these two cases, that this Court is always very reluctant to review cases of salvage, either coming from the Court of Admiralty or from the Vice-Admiralty Courts, on the sole ground of the pecuniary reward which has been bestowed in those Courts being deemed to be insufficient ; because it is manifest that in all these cases there is the exercise of individual discretion, and that exercise of individual discretion almost always differs among dif- (1) 1 Rob. 313 note. (4) 5 Notes of Cases, 156. (2) 3 Rob. 355. (5) 12 Moore, P. C. Cases, 346. (3) 12 Moore, P. C. Cases, 189. (6) Ib.340 ; S. C., Sw. 129; Ad. Rep.129 3 X 2 GASES IN THE PRIVY COUNCIL. [L. B. i n( persons. Still, however, if they thin I8i% the case baa not been attained, it i.- y of this Court, Bitting trAvxi M a *'"'"'' " ; ' | 'I "''' to remedy an\ i may appear 1 to do th:tt uiiii-h mi'!--. umstanoes tl. M' ><.! MM.. consider to be riirlit. Havm- made this observat i>.n, the lir-t p"int t<> uhieh \\e will refer i> that \\liich has been very much argued, the |ii in:: guilty of a deviation may be of the utmost importance. In the first place the consequence of a deviation may be the voidance of the policies of in< there was an ancient custom of giving a moiety of the value, which custom had lasted down to th.- time of Charles II., since that reign it had fall* n into d< -siu-tude. He then goes on to state what had occurred from time to tinu-, and comes to the conclusion that the proper mode of considering the question is, what is the fit and proper amount. \\ith reference to all the circumstances, including the value of the property salved, and the risk to the y of the salvors ? Now, in truth and in fact, when the Court comes to 001 question of derelict or not, it takes into consideration the dan^ the property ; and so it does where the vessel is not derelict : the property may be in infinite danger though it is not derelict : l.ut t he Court always considers that one of the material upon which it LTIV. s a large salvage, is the danger to the p and the danger may be (we do not say it is, but the danpr may be), and in certain cases of salvage it is, as great to the prop rty which is not derelict as it is in other cases where th derelict. Therefore, the proper course to pursue in all these cases is to consider the fact of derelict as being, as it were, an ingred in the degree of danger in \\hich the property is. Now, having said that, and disclaiming altogether the ii that there ought to be any particular proportion awarded in a case of derelict though of course, from the very principle we have stated, in the case of derelict a larger proportion of salvage would be given than in other cases we now come very briefly to notice the cases which have been argued before us. It appears that in the case of the True Blue, the vessel which effected the salvage was the Laconia, a steam-vessel, the value of which was 30,000. 300 was given by the Court below. The VOL. I.] CASES IN THE PEIVY COUNCIL. 257 value of the property salved was 1,452. The vessel was taken j. c. possession of about 240 miles from Malta, at noon on the 14th of i860 February, and reached Malta on the 16th of February. PAPAYANNI Now that the vessel was in danger when she was so taken pos- v ; session of, having been so many days before abandoned by her - own crew, there can be no doubt whatever ; but there was nothing ELBE." in the particular state of the weather at that time, nothing in the particular locality where the vessel was, to shew there was any immediate danger of absolute destruction to the vessel. Every vessel when abandoned at sea, left without any one on board, is, of course, in considerable degree of danger, because, perhaps, in a short time it is almost absolutely certain that the vessel will come to entire destruction. Then, with regard to the salvors themselves, this is a case in which the salvage was effected by a steamer, consequently there was no great degree of labour to those on board the vessel. A certain degree of additional labour there might be, but nothing to any great extent. Danger to the salvors there was none whatever. The vessel was afterwards detained at Malta for a certain length of time ; as far as it is to be collected from the evidence of the Master and crew, it was for about eleven or twelve hours. Now the question is whether regarding the value of the vessel salved, vi/., 1,452, their Lordships ought to approve of the decree of the Court below for 300 : and we are all of opinion that it is not sufficient. We are of opinion that there ought to be a certain increase ; we all think the sum which ought to have been given is 450, including the 300 already given. We now proceed to consider the case of the Scindia. The salvors in this case, are the Aminta and the Alicia Annie, and the property salved is very considerable. The value, as near as we can make out, is admitted to be about 31,000. There is a difference in the statements of the value ; one case states it at 30,281, the other at 31,281, but probably about 31,000 is a fair statement of the value. \N ell, then, the next consideration is, what is the value of the salving ships and their cargoes ? We are not able to fix it exactly. We are not at all aware what the value of the Alicia Annie was, though probably it was very considerable. CASES IN Till. IM;IVY OODK< [L. B. ssel and cargo were certainly of very large value, UM worth 11 K>,OOU or 150,000; it cannot be fixed more nearly, nor PJU>A it important that it >h..uld I B this case. Tin- number * of salvors on board the two salving ships was no leas than a !l.* .< M;L. forty men. Now the sum of money which was tendered was I nr "TRUE ."" '. and that sum the Judge of the Vice-Admiralty Court at the Cape of Good Hope deemed adequate. II ! to be sutli ! tin-re 1* tt tic- case. It appears he left case there without doing anything more, because haying pro- nounced his opinion that 2,000 was sufficient for both ships, he may have thought that application \\ould be made to him to wind up the case. We understand that is what he meant, though he does not express himself very definit.-ly. He expected applications would be made to him on behalf of the two Appellants, with regard to the agreement which was made between tin in \\ith reference to the division of the salvage. The circumstances of this case are soon told. The derelict vessel was at a certain distance from the shore, of course there is a difference in tin- evidence as to what that distance was; if there had been no difference in the testimony at all. it would have been the most surprising case their Lordships < had to consider; however, there is a difference, though it is a matter of no great importance it was at a distance of soni-i like twelve or fourteen miles; but they say, with great truth, the vessel was in great danger, and so, beyond all doubt, she was at that period, with her port-holes open, her scuttl three feet of water in her, and the quantity of wat-r increasing every hour, because that would be a matter of course even in calm weather, and if the weath-r had come on to blow she uoiild have been in very imminent danger indeed. As to all the discussion about immediate danger," if it is meant that she was in "immediate danger " at that moment of going down and sinking, she certainly was not ; but she was in " immediate danger " in another sense of the word, namely, unless some one came to her rescue in a v short time she would have been lost and destroyed altogether. Therefore, upon this point the question turns upon the effect of the word "immediate." ^ hen the Alicia Annie came to the assistance of the Scindia, she certainly was not strong enough, VOL. L] CASES IN THE PRIVY COUNCIL. 259 looking at the number of her crew, to perform the work of salvage J. C. successfully in a short time ; and when the Aminta comes up she 1866. makes an agreement with her that they shall share the salvage equally, the Aminta being a much larger vessel, and having a much larger crew, so that they could put on board the Scindia a J. HK * J.RUE sufficient number of sailors to effect the rescue of the vessel. BLUE." That was done, and the vessel was, without much labour, conveyed safely into port. The distance signifies nothing; a few hours' sailing accomplished the whole distance, and the vessel was brought safely into port. Now a tender having been made of 2,000, and that having been deemed by the Judge of the Court below sufficient, the question comes to us shortly in this shape Was this a sufficient tender ? That is the whole question, looking at the values, and taking into consideration (that which it is impossible for any one to define) the additional risk from having to make a deviation, is not the actual event, but the possible event, of the cargo being lost or damaged, an event which must, to a certain extent, not be forgotten in estimating the amount of salvage to be awarded. Now we are all of opinion that 2,000 was not sufficient, and we shall pronounce for an additional 1,000, which will make 3,000. But there is another matter remaining behind, and that is with regard to the Alicia Annie. What their Lordships will do will be this : of course the costs must be paid, because we reverse the judgment of the Court below. According to the agreement, 1,500, a moiety of the salvage, must be paid over to the owners of the Aminta; but with regard to the other 1,500, there is a difficulty as to what was going to be decreed by the learned Judge of the Court below. We shall do this : we shall require 1,500 to be left in the Registry, and then either the owners of the' Aminta, or the owners of the Alicia Annie, may make an application to their Lordships, and they will decide, according to the justice of lli.- case, \\liat ought to be done with that 1,500. Their Lordships, however, propose to distribute the 1,500, awarded to the Aminta in this way : to give 1,000, to the owners, the salvage having been in reality chiefly performed by the vessel ; 200, to the Master for the responsibility he incurred ; and 300, among the crew. _>.;i CASES IN THE PRIVY OOUN< [L. B. \Vith regard to t i Annie, this will be the course: those I-.. who represent the Alicia Annie will present a p i may be paid To th> m. The Respondent! may appear on that p. titi. 'ii, and deny tin- i i_ ia Annie altogether, and pray it may be paid 0fK to them wholly or in p. Tin --'I'!.' i: Proctors for the Api*-llants: Pr'ttcliard & Sons. tors for the Respondent : Clarkson, Son, & Cooper. j.c. ix Tin: MATTKII or LAFKFNVF M IH:KMOTT AG.\ 1866. rADI ORDERS OF mi: SU'KKME COURT OF HKITISH ^ ' GUIANA. ON PETITION n:.'M I'.IUTISH GUIANA. Contempt of Court Comments in Newtpaper on administration of justice Order committing PublieJter to gaol Charter of Justice of British Guiana, 20th June, 1831 Appealable value. Leave to appeal given from an Order of the Supreme Court of Civil Justice of British Guiana, committing the publisher of a local journal to prison for six months for an alleged contempt of Court, iu 1 in such journal .s on the administration of justice by that Court, with liberty to the ^es of the Supreme Court to object to the comjicteucy of such appeal at the hearing. JLniS was a petition for leave to appeal from an Order of Supreme Court of British Guiana committing the Petitioner, Laurence McDermott, the pnl>li>her of the Colonist Newspaper, to gaol for six months, for an alleged contempt of Court in j ' ,inir in that Newspaper two articles supposed to reflect on James Crosby, Esq., one of the Judges of the Supreme Court in Colony, and on Mr. Ross, a Barrister practising in that Court The petition stated that for some time past great dissa had existed, and much discussion been raised respecting judicial proceedings of the Supreme Court of Civil Justice of Colony, and especially with regard to certain proceedings ta against Mr. Campbell, one of the Officers of that Court, who, by * Present : LORD WESTBUBT, SIB EDWABD VACGHAX WILLIAMS, and SIR WILLIAM COLVILE. VOL. L] CASES IN THE PEIVY COUNCIL. 261 reason thereof, had been compelled to resign his office ; that the J. C. Petitioner, in reporting the particulars of such proceedings, allowed 1866 them to be commented on, and their nature and legality to be j nre discussed in two Articles in the Colonist Newspaper. That the Petitioner had intimation that an ex parfe Order dated the 2nd of April, 1866, had been issued by the Supreme Court against him, in the following form : " Upon the information and motion of Edward diaries Boss, Esq., Barrister-at-Law, this day made to me in non-session of this Court, and upon reading the affidavit of James Burford, dated and sworn this day, and filed in this matter; and upon reading a certain copy referred to in such affidavit of a printed Newspaper called the Colonist, appear- ing to have been published by one Laurence McDermott, at his office, Lot 26, Water Street, New Town, on the 29th day of March last, wherein are printed and published divers scandalous and libellous articles and statements reflecting on the adminis- tration of Justice in this Colony by the Supreme Court thereof; and in particular certain scandalous and libellous passages and statements as to His Honour James Crosby, Esq., one of the Judges of the said Supreme Court, maliciously abusing and threatening the said Judge, and tending to the great obstruction of the course of justice, and being in contempt of this Court, I do hereby order and direct that the said Laurence McDermott do per- sonally attend this Court at its sitting, in George Town, on Wed- lay next, the 4th day of April instant, at half-past ten A.M., and further that he then and there shew cause why an attachment should not be issued against him for such contempt as aforesaid, or why he should not be committed to prison or otherwise dealt with in respect of such contempt according to law, and as the Court shall think fit to order. J. Beaumont, C. J." That this Order was not personally served on the Petitioner, but was left at the registered office of the Colonist, and was handed to th<- Petitioner by one of his servants; and the Petitioner having such notice, and the same purporting to affect the personal liberty of the Petitioner, he appeared in Court on the 4th of April, 1866. That the Court, consisting of Chief Justice Beaumont, and Mr. Justice Beete, thereupon and without proceeding in the matter CASES IN THE PBIVT OOUN< [L. R J.c. .:-ir._' the Petitioner's Counsel, who were then is.;: iii : ,n. !,'!.. : Hi -.1 to urge legal objections both to , f Order its. It ;i!.'l tli.- proceedings taken against th McDuMurr. a ,lj llUrntM | tli,- ,;' the Order to t! HI then i when the IVtiti.'ii-T \v;is further ordered to attend the Con .-in in-.:, to answer in respect of the contempt alleged against 1 and to shew cause why an ntta< -him-nt should not issue agn him, or \\hy In- should not IK- committed to prison or otherwise dealt with according to law, and as the Court mi^ht think t r in respect thereof. That accordingly 'inner again and on the lith of April. I>'M. and .Mr. \ General ; Mr. Gilbert, his Counsel, having been heard to shew cause his behalf, the following proceedings took place, as appeared UJMMI the Minutes of the Court : "The Court taking notice of and having reference to a certain Newspaper call-- 1 tli'- (Jolonist, pur- tiiiL' to have been printed and published on the ~>\\\ A]ril instant. ly the Petitioner, at his office, L- . M ''/ / Street, New Toim, City of George Town, and of certain scandalous matter printed and appearing in such Newspap- : im- [K'lly upon the proceedings of the Court had and tak,-n tin-: and ivtl.-etinu' impn|x'rly upon Edward Charlet Host, Esq., Bar- ri- r having informed and moved th- Court th,-: such M-andaloii-s matter heini: contaiin-d in the h-adini: an printed and published in the said Newspaper, and being so printed and published in contempt of the authority and jurisdiction of this Court, and tending to prejudice and obstruct the admini- tion ot justice; and the Court also taking notice of, and 1^ reference to, a certain declaration in writing made by the 1 tionrr, in pursuance of the provisions of Section 1 of Ordinance No. 26, 139, before K H. G. Dalton, sworn Clerk and notary public of the !! L r i-trar's Office of Demerary and Essequebo, and bearin-j date the 3rd of August, 1863, and now remaining recorded in the office of the Registrar: it is pleased to order and to direct the Petitioner, he being personally here before the O that he do attend the Court personally at its sitting on Tuesday \t. the loth of April instant, and do then further answer, as well for the contempt alleged against him as in the aforesaid Orders mentioned, as for such further contempt as now alleged in VOL. L] CASES IN THE PRIVY COUNCIL. 263 respect of the aforesaid matter contained in the Colonist News- J. C. paper, printed and published on the 5th of April instant, and do 1866 then shew cause why, for such contempts as aforesaid, an attach- j n re ment against him should not issue, or why he should not be com- Mcl ^ mitted to prison, or otherwise dealt with in respect thereof accord- ing to law, and as the Court may think fit to direct." That the Petitioner, on the matter being called on the 10th of April, 1866, again appeared personally in the Court, which again consisted of the Chief Justice Beaumont and Mr. Justice Beete, in pursuance of the Order of the 6th of April then last, when the following proceedings, as appeared from the Minutes of the Court, took place : " The Petitioner, being called on to shew cause, as directed by such Order, Mr. Attorney-General and Mr. Gilbert, of Counsel for him, objected and declined so to do, alleging that such Order was irregular, and ought not to be proceeded on ; but that the Court ought, without reference thereto, to adjudicate on and dispose of the matters alleged against the Petitioner, and as to which he was called on to shew cause by the Orders of the 2nd and 4th of April instant made therein. The Court, having heard and considered such objection, overruled the same, and con- sidered that the Order of the 6th instant made therein was regular, and that the Petitioner was bound to shew cause as thereby directed. And further (inasmuch as his Counsel objected to the Order now being proceeded upon, that it was pronounced ore tenus, and that no minute or written copy thereof had been served on lii ni), the Court considered that the Petitioner having been pre- t personally and by his Counsel in Court when such Order was made, it was not necessary to serve him with any minute or copy thereof; but intimated that, nevertheless, if he or his Counsel desired to be further advised of the same, or the terms or effect thereof, the Court would allow a further time to shew cause tlnTcunder. Mr. Attorney-General having, on behalf of the Petitioner, declined to shew cause thereunder, Mr. E. C. Ross, the informant of the Court in this matter, was heard in answer to what was alleged on behalf of the Petitioner herein on the 6th of April instant. Mr. Attorney-General having declined to reply, the Court reserved its decision until Friday next, the 13th of April instant, and, he being personally present before OASES IN THE PRIVY OOUN fke Ooort, ordered th<- app. ar th. -r-in personally at l-.v, the sittniL- of the Court on that day, and int.- Mat, not v Inn standing his refusal t<> shew cause t! <-t.-ro pro- iH.iiiiciiiLr their decision h-n-iii." Tliat, on the loth of April, 18G6, the Supreme Court, consi- of the Chief Justice Beaumont and Mr. Justice Beete, gav ment, and tin r. in cxprcssnl thn'r opinion that th<- !' had been guilty of a contempt of Court, and on the same day pro- nounced tin- l'ollo\\inu r Ord.-r: "The Court having asked Mr. Attorney-Gcm-nil, of Counsel for Laurence McDermot', \\hether he desired to shew cause in this matt- r in pursuance of the liberty to that effect given and reserved to him by the Order therein of ;h instant, he derliiu-d so to do, and thereupon and upon r rin- to the several Orders tip rein made on the 2nd, 4th, Cth, and 10th of April instant, the affidavit of James Burford, sworn and tiled in this matter on the 2nd of April instant, the copy of a Newspaper called the Colonist, dated the 29th of Man-h last, refer reel to in sm-h Allidavit, and also to the copy of the Colonist .\.-pap.T dated the 5th of April instant, and the declaration of the said Laurence McDermotf. dat ! the 3rd of August, 1863, both referred to in tin- <>r !er of the (ith of April instant; and upon considering this matter, the Court doth adjudge and de 1 that Laurence McDermoti hath committed a high contempt of this Court in and by having printed and published in the Colonist Newspaper of the 29th of March last, an Article com- menein::. 'It is rumoured that that valiant gentleman Mr Justice Crosbys advice;' and also in having printed and published in the Colonist Newspaper of the 5th of April instant, an Ar; commencing with the words, 'It is now an undoubted fact that we have to perform our duty as Journalists ;'such Articles \ely containing divers matters scandalously reflecting upon this Court, and in particular upon His Honour James Crosby, one of the Judges of the Court, and improperly reflecting upon Edward Charles Ross, .Impure, the informant of the Court herein, and tending to defame and obstruct the administration of justice : and doth order that for such contempt he, Laurence McDermott, be imprisoned in VOL. I] CASES IN THE PRIVY COUNCIL. Her Majesty's gaol of George Town for the term of six calendar J. c. months, to be computed from this date, or until he shall be sooner 1866 discharged therefrom by the further Order of this Court." In re That the Petitioner was delivered into the custody of the Keeper McDEItMOTT - of Her Majesty's Gaol, at George Town, under a Warrant of com- mitment made on the same day, by the Chief Justice Beaumont, to undergo the term of six months' imprisonment, so imposed by the Court. That the Petitioner, feeling deeply aggrieved by the Order of commitment for such alleged contempt of Court, and being advised that the same was wholly illegal and irregular, applied to the Court before he was taken into custody by the Provost Marshal, and afterwards by petition, for leave to appeal from the Order of commitment to Her Majesty in Council. That, in his petition for leave to appeal against the Order of Commitment, he stated nii'l insisted that the Order had the effect of a final or definite sentence, involving a civil right, namely, the Petitioner's right to* liberty for six months, which was of more value to him than the sum of five hundred pounds, the sum limited by the Order in Council, of the 20th June 1831, regulating appeals from the Supreme Court to Her Majesty in Council. That by the aforesaid Order in Council it is expressly provided, that if the party or parties Appellant shall establish to the satisfaction of the Court that real and substantial justice requires that, pend- iug such appeal, execution should be stayed, it shall be lawful for such Court to order the execution of any judgment, decree, order, or sentence to be suspended pending such appeal, if the party or parties Appellant shall give security for the immediate perform- ance of any judgment or sentence which may be pronounced or made by Her Majesty in Council upon any such appeal ; and the Petitioner submitted that real and substantial justice required that, j tending such appeal, execution should be stayed, inasmuch as the Petitioner, by the Order or sentence of the Supreme Court, had been condemned to be imprisoned in Her Majesty's gaol of George Town for the term of six calendar months from the 13th of April, 1866, and unless the execution of the sentence was stayed pending the appeal, to Her Majesty in Council, the Peti- tioner, in the event of the appeal being decided in his favour, >,;,; CASES 1 Y COUNCIL. [L. R. uld in all probability, l.elon- ; ho Priry ( f ..iiu-il }\ the Ju- dicial Committee of Her Majesty's Most Honourahi Privy Council. That the several orders and proceedings of the 2nd. Ith, t re the liberty of the subject that such an appeal should be allowed. MCDEKMQTT It has been admitted in several cases : Smith v. The Justices of Sierra Leone (1) ; Eainy v. The Justices of Sierra Leone (2). In this country, the Petitioner would have had his remedy by writ of Habeas Corpus, but in a case like this, that writ could not be obtained from the Colonial Court, and since the Statute, 25 & 26 Viet. c. 20, s. 1, it cannot be applied for here. [LORD WEST- BURY : Suppose a contempt at Nisi prius and a fine inflicted, would an appeal lie ?] Perhaps not in England, but in the Colonies it is different ; thus, in Rainy v. The Justices of Sierra Leone (2), an appeal from an Order imposing fines and imprisonment on a prac- titioner of the Court was allowed ; and though that case broadly lays it down that, in the case of contempt, the Court making the Order is the sole judge of what constitutes the contempt, the appeal was admitted by this Court on the ground of the illegality of the Order, and the alleged contempt was inquired into. LORD WESTBURY : Their Lordships regard this case as one of great importance, and one that may lead to important consequences. On the one luind it is essential to preserve a Court from all obstruction to the course of justice ; on the other hand, it is very desirable that there should be a check upon any arbitrary exercise of the powers of the Court. But at present, having regard to the distinction between tilings done by Practitioners of Colonial Courts, and things done in curia ; things done directly leading to interference with the administration of justice, and things which do not come within either of these categories, their Lordships are disposed to give leave to appeal, but without prejudice to the question, whether tin -re is a right of appeal or not, our object is, that of necessity this important question should be fully argued when it comes before us. By an Order in Council, made on the above Petition, it was ordered that the Petitioner should be allowed to enter and pro- (1) 3 Moore's P. C. Cases, 361. (2) 8 Ibid. 47. VOL. I. 3 Y t CASES 1 l. l:. >'. secute his appeal from i tin Supn -m- < the i>.-,.. i:;th ..! April. 1866, and of the fehe *66, j^Ts without j>r. jii'li the question of tin- com Al..j -iy in Cnunri of a Court <>i' Kcconl, inlli.-tin^ punishment, by lin<- .r iinprisomn for a contt inj.t of Court. \\liition was to be open to argu- ment on tin- hcarin:: of tli< appeal, and u c< ,o Order was directed to be served on the Judges of tin- Supreme Court, \\ith leave to put in their UUS\V\ Si.li.-it..rs tor tin- IVtitimn-r : H '}> ifakers & Wodlbert. ..., r.AUTni.oMKo OASANOYA \ AND "2. THE Qli;i:N AND LIEUTENANT DUNLOP . RESPOXDEHTB. THE "RICARDO SCHMIDT." AITKAL FROM THE VICE-AIXMIIJALTY CnrRT OF LEOM:. Seizure of a Foreign vessel for violation of .Sfrnr Trade Act, 5 Geo. 4,e. 11 " storation of by Court below, without damage* and cottt Presumptive evidence Application of the rule of evidence in Act, 5 & 6 Witt. 4, c. 60, not admitted. Seizure of a Foreign vessel in an English harbour for violation of the pro- visions of the 5 Geo. 4, c. 113, having been admitted, and proceeding! taken thereon, the Judicial Committee held themselves not required to give an opinion whether such construction of the Statute was right or not, but that Statute having provided (s. 35) that costs and damages shall be given where it shall appear to the Court that the capture, seizure, or prosecution, shall not be justified by the circumstances of the case, the Court below is not at liberty to use the rule of evidence introduced by the Statute, 5 & 6 Will. 4, c. 60, contained in Arts. VI. 6 and VII. of the Treaty between Great Br< France, and Sardinia, embodied in that Statute, as a ground for refusi; the restoration of a vessel seized under the Statute, 5 Geo. 4, c. 113, to decree damages and costs. -o, therefore, a Foreign vessel bad been seized and afterwards decreed * Present : LORD WESTBUBY, SIR JAUES WILLIAM COLVILE, and SIR EDWARD VAUOHAK WILUAMS. VOL. I] CASES IN THE PEIVY COUNCIL. by the Vice-Admiralty Court of Sierra Leone to be restored, but without damages and costs, the Judge of that Court being of opinion, that there was probable cause for the seizure, from having an apparently unusual number of empty water-casks found in her (which articles are by the above Treaty specified and made conclusive as a ground sufficient to warrant deten- tion, and to preclude compensation, even if no sentence of condemnation has been pronounced), and that as a Judge of a Foreign Court, had she been taken there, would have been precluded, under the circumstances, by the terms of the Treaty, from awarding costs and damages, the Court was precluded from giving such : It was Held by the Judicial Committee, that though the Judge of the Vice-Admiralty Court was at liberty to use the circumstances relied on as a ground to justify the seizure under the Statute, 5 Geo. 4, c. 113, yet it was not competent for the Court, after a satisfactoiy explanation of the purposes for which the casks were used, to apply the rule regarding the refusal of damages and costs enacted in the Statute, 5 & 6 "Will. 4, c. 60, to a vessel seized under the 5 Geo. 4, c. 113, and his sentence in that respect overruled. A vessel of 600 tons, capable of carrying 900 tons, lying in the harbour of Xii'rra Leone, having been examined and released by the Custom House Officers, was afterwards hauled over and seized by D., a Lieut, in H. M. Navy, accidentally at Sierra Leone. She had on board a cargo fit for the purpose of trading upon the African coast, with some thousand gallons of palm oil stored in casks on board. Of 111 casks found empty, sixty-five were clean new casks, and the others had been used for carrying oil. The ship's papers were delivered up to the Seizor, and every information regarding the history and ownership of the vessel afforded him. At the time of the seizure her Captain was engaged on shore in the sale of the residue of the outward cargo, and was in the act of purchasing a return cargo. The alleged suspicious circumstances of the vessel having a second deck, and more than the requisite quantity of cooking utensils, was satisfactorily accounted for, by the fact of the size of the vessel requiring for stowage a second deck, as, when loaded, she was not safe or insurable without such, and the evidence that the amount of the ship's vessels for cooking was less than requisite for the wants of the Captain and crew. Under such circumstances, it was held by the Judicial Committee, that there was no jtrobdbilis causa for seizure ; that so much of the sentence of the Vice-Admiralty Court as held that there was probable cause should be reversed, and that the vessel ought not only to have been restored, but .with damages and costs, which their Lordships awarded on appeal, together with costs of the appellate Court. JL HIS was an appeal from so much of a judgment of the Vice- Admiralty Court of Sierra Leone, as refused to give damages and costs on the restoration of a vessel which had been seized in the harbour of Sierra Leone by the ^Respondent, Lieutenant Dunlop, for an alleged breach of the Statute, 5 Geo. 4, c. 113, for the abolition of the Slave trade. The Appellant was the Master of the vessel, the Ricardo 3 Y 2 J. C. 1866 v^-y^/ CASANOVA . THE QCBEX. THE " RICARDO 270 CASES IN THE PBIVT OOTOC .i.O. Schmidt, claiming in the C.urt !> luw on hehnl: .elf and IM6 the owners, 0. GamboJ and can CJLM -sat Genoa, and a si:' 1 Kini: "f K^'j, THBQCKEX. ScJuniiU. the Prussian Consul at Genoa, & H- ig of I M! \ ire- Admiralty Court of Sierra Leone Carr) in li. :<-nt held, tl '>! tim- >n had on board 111 empty casks, without, as he < sid y certificate that security had been given t! should only be used for i >tionof palm oil, or be other lawful trade; and that she, as an Italian vessel, xvas bound under the Treaty between Great Britain and Sardinia, embodi- the Statute, 5 & ) Will. 1, c. Co, to have such a certificate; and h<- li-M, that as, by the Vllth Article of the Supplemental Tr between the same powers, of tin- 'J'Jnd of March, 1833, contained in the same Statute, it is expressly provided "that no compensa; shall in any case be granted, either to the Master or to the ou: or to any other person interested in the equipment or lading of a ni' reliant vessel iii \\hieh any of the particulars in the pivee Article (the Vlth) shall be found, even if the Tribunals should not pronounce any condemnation in consequence of her det- that as, if the vessel had Ix-en sei/i-d under the above Treaty, and taken to Genoa for adjudication, the Court at Genoa, under euinstances, would have been precluded by the terms of the Treaty from awarding costs and damages; therefore he was precluded from giving such, and he referred for the principles by ulm-h the Court ought to be guided in construing the Statute, 5 Geo. 4, c. 113, to the cases of The Winwick (1), and The Newport (2). It appeared, from the evidence in the cause, that the vessel cleared from the city of Genoa on the 9th of December, 1863, with a cargo of general merchandize, bound for the coast of Africa on a trading voyage, and sailed on the same day. That she put in at several places, and disposed of portions of her cargo before arri \ at Sierra Leone, where she reported herself at the Custom House on the 28th of July, 1SG4, having on board at that time the residue of her cargo shipped at Genoa. (1) 2 Moore's P. C. Cases, 30. (2) 11 Moore's P. C. Cases, 1 VOL. I.] CASES IN THE PEIVY COUNCIL. L'71 It also appeared that on her arrival in the harbour of Sierra J. C. Leone she had on board 14,000 gallons of palin oil, with the ISGG residue of her outward cargo, consisting of 52 puncheons of rum, CASANOVA 108 cases of absinthe, 42 cases of olive oil, 140 empty casks, and a THE Q rEES . few other articles. The 140 casks were empty in consequence, as was stated, and uncontradicted, of the Master not having been "RICABDO able to find sufficient oil to fill them, as it was early in the season LHMmT ' for palm oil. Some of them were new casks, but others had been already used for holding palm oil. On the day after her arrival the Master consigned the residue of the outward cargo to Mr. Heddle, a Merchant at Sierra Leone, and a Member of the Council in that Colony ; and evidence was produced shewing that he had been informed by letters received by him of the ship's voyage and business, and had ' t 'opened a credit in favour of the Master ; jmd that after the seizure he submitted the whole of the ship's papers to Mr. SJiaw, the acting Officer of the Customs in the har- bour of Sierra Leone, and offered every information respecting the vessel ; and that, in consequence, a permit was given, in pursu- ance of which forty-two of the empty puncheons were landed, in order to be sold. After her examination and release by the Custom House officers, the seizure of the vessel was made at the instance of Lieutenant Durilop, an Officer of Her Majesty's Navy, then accidentally in the harbour of Sierra Leone, on behalf of Shaw, who was at that time the acting Collector of Customs. After the examination of witnesses, and the production of written evidence, a decree was pronounced by the Judge of the Vice-Admiralty Court (Mr. Carr), whereby the vessel was ordered to be restored to the Claimants (the Appellants), [together with the goods, wares, and merchandize on board, but without damages -ind costs. Among the papers produced in evidence was a certificate of the < 'h amber of Commerce of Genoa, addressed to the Appellant as owner and Master of the ship, which certified as follows : " That M. G. Ganibolata is an honest and confidential person, and in- sipable of making any other use of the casks, merchandize, and other articles, shipped on board the Ricardo Schmidt, flying the Italian flag, Captain Casanova, and bound to Goree and other 272 CASES Df THE PRIVY COUN< [L. R. ports on the coast of Guinea, than those named : is,., use them ! ;l comm< ! the casks to be filled > ' s "\ [.aim cil or cocoa-nut oil." _ ( ' ( - H>6 Appellant being a F- :in and proceedings of the British \l>-> -Admiralty Court*, AM*, and his Procto ihat under the r _1 '" . 24, sec. -.', only six months was allowed for an appeal to Her Majesty in Council against the decree of th, Yir<-Almi: Court of Sierra Leone, instead of a year, tin- limit \n. 5 Geo. 4, c. 113, omitted to assert an appeal from tin above decree in du> time, but having presented a special petition for leave to ap; -Judicial Commit <. un ' r the circumstances, permitted the same (1). The appeal now came on for hearing. Dr. Deane, Q.C., and Mr. J? ' Lushinyton lor the Appellant: There are two grounds upon which \\e object to the judgm - tho Court below. First, there was no sufficient proof to warrant the .ludp- of the Vice- Admiralty Court in c.-rtitYiiiLr that th.-n- was probable cause for seizure; and, secondly, that the Stai 5 t \v, there is no mention in the Statute, 5 Geo. 4, c. 113, of empty water-casks. They may be, from their number, not requisite articles, and if not duly accounted for, form an ingredient of suspicion suf- ficient to warrant the examination of a vessel ; but in the only Treaty in which they are mentioned, in the Statute, 5 Geo. 3, c. 113, namely, the additional Article explanatory of the Treaty of the 31st of December, 1822, with the Netherlands, though enumerated with various other articles, as forming a primd facie evidence of suspicion against the vessel, such evidence, it is expressly enacted, may be rebutted by satisfactory proof that the casks were intended J.C. I860 t A-ANOVA r. THE QUKKN THE " RlCAlUXt SCHMIDT. _'7I . CASES IN TIIK I'liIVY OOUK< - legal am I ! -.-inmate nae. Here th* .pj-arance of the casks !--: themselves, their partial us--, ami th.- ' VOVA Commerce of Genoa, were amp! nt proofs to rebut all .. ,''; -iintption ,.!' til'- int'-li'i'-tl ille-jal U-- "! th-- ea-ks; ali'l ill-- St.itiit--. 5 Geo. 4, c. 1 l.'l. under \\liich tin* --i/iire was made, and the pro- T*III* \BOO eeedings beh>\\ fetJnn^expreMly provides (i re-tin M """ rr - with costs and damages, for ui ;r- or prosee It is in tin-so words: Provided always that nothing herein con- tained shall piw.-nt the said Courts," (nam.lv, the Vice- Admiralty Courts,) "or any of them, having jurisdiction in th-- i adjudiri 1 Captors, Seizor*. ut. is iii any such cause as aforesaid, to payout oi' tli.-ir proper monies sm-li the natun- of costs and damages as the said Court >hall decree. \\h.-n it shall appear to such Court that th- mpturv. s--i/uiv, or prosecuti iie appeal thereon on the behalf i>f the Captor, Seizor, or Prosecutor, shall not be justified by the riivumstanr. s of the case." This section is conclusive. ht to have governed the case. Secondly, the Statute, 5 & "Will. I. c. 60, has no reference to a case of this natun- : it \\as passed for the can;. Treaty with the Kin:: <>f the Fnn-h anl the Kin,' of Sardinia, for -impressing the Slave trade, and contains the Treaty and subse- luent Conventions. It is sufficient t> observe that the ri^ht of search and capture there given applies only to the waters therein described, and which are exelusively hL r h - - and do not include the harbours of either Po\\er. Nov., this is most import for the Ricardo Schmidt \\as seized in harbour, an 1 was not only /'(I, lut proceeded against under the Statute, .3 (ieo. 1. . 1 i:;. not under the Statute, 5 & 6 Will. 4, c. 00. It is true that theTi contained in th.- latter Statute, in the Arti.-le cited by t Admiralty Judge, among the particulars enumerated, does spt Art. V!. 6, an unreasonable number of water-casks, but they may be accounted for. an 1 are h if the Statute applied, s factorily explained ; and the certificate given by the Chamber of Commerce at Genoa is, if such were requisite, evidence that suffi- nt security had been given for the proper use of the casks. The nature of the security is not defined, and if the Statute had any application, which we contend it has not, the certificate pro- VOL. I.] CASES IN THE PRIVY COUNCIL. 275 ducecl in evidence from the ship's papers, was, we insist, amply sufficient to satisfy the requirements of the Statute, and to entitle us to damages and costs. The cases of The Winwick (1) and The Neiuport (2), referred to by the Judge below, were both cases under the Slave Act, 5 Geo. 4, c. 113, and ought to have led, upon the principles there laid down, to a diametrically opposite conclusion from that the Judge of the Vice-Admiralty Court arrived at. The Queens Advocate (Sir E. PhiUimore, Q.C.), and Mr. Hannen, for the Eespondents : The allowance of costs and damages is one entirely of discretion : the Judge being of opinion that there was probable cause for the sei/ure, was right in his application of the Statute, 5 & 6 Will. 4, c. 60, having reference to the Supplemental Treaty with Sardinia, and the absence of proper security regarding the 111 empty casks found on board the Ricardo Schmidt. There is no question that the vessel was duly, and we say properly, seized. Lieutenant Dunlop acted under the 43rd sect, of the Statute, 5 Geo. 4, c. 113, and the whole question resolves itself into one of sufficiency or insufficiency of evidence. We submit that, upon examination of the evidence given by the witnesses who were examined, as well as the ship's papers and correspondence relating to the ship and cargo, there \\as sufficient ground of suspicion to justify the Vice- Admiralty Court in requiring satisfaction of the legitimate trading of the vessel, and that though there might not be, and was not, in the opinion of the Judge of the Court below, sufficient to justify her condemnation, or retention, there was probable cause, sufficient for her seizure, to justify the qualified restoration which the Judge decreed. The Article VI. of the Supplemental Treaty of the 2'Jnil of March, 1833, between the King of the French and Sardinia, and which is incorporated with, and enacted by the Statute, ") & Will. 4, c. 60, declares that " any Merchant vessel of ;tln T of the two nations, visited and detained in pursuance of the < ' -mention of the 30th of November, 1831, and of the provisions ihrrein-before recited, shall, unless proof be given to the contrary, '>e hold and taken of right to have been engaged in the Slave J. C. 18GG I'ASANOVA 9. THE " UlCAKDO Sf HJIIDT." (1) -J Moore's P. C. Cases, 19 & 30. (2) 11 Moore's T. C. Cases, C \S1.S IN Till: I'KIVY ("IV II.. L.I: Is,;,; I A '.V \ s Tm. QCBJQC. jOeS Of BUt'l ticulara thereinafter .-{ >hall be It >r . (juij)ii. '.! . \ I. specifies as ; asonablo numb* i usks or other vessels for holding water, unless the Master shall produce a certificate in -MI the Custom House from the place \\liich he cleared outwards, stating that a su had been giv, i 1-y th- owners of such vessel that such cask?- other vessels, should only be used for the reception of palm oil, or be employed in any other lawful trade." Nov.. how is this re- quirement met ? The certificate of the Chamber of Commerce of Genoa, is a certificate, if of anything, only of chara* -ter : the above Article requin s. that in such case security shall have been L'i'. which, whether it means a Bond with sureties, or merely pere<>' security, does not mean a simple expression of the good opinion of the honest intentions, or general confidence in the integrity of the Master, such as is expressed only by this document. Looking, therefore, at the undoubted fact that there were on board tin- vessel 111 empty casks capable of holding water, and that there was no certificate that security had been given that they should only be used for the reception of palm oil, tin- Judiie Admiralty C'"iirt had no discretion in the matter. Imt was bound by the Vllth Article of the Treaty embodied in the Statute, 5 & 6 Will. 4, c. (Jo, to refuse damages and costs. WKSTBUBY: This is a case of a Foreign vessel, an Italian m- r< -l.-mt .-hip. d in the English harbour of Sierra Leone, on the ground of having violated the provisions of the Statute, 5 Geo. 4, c, 11'!. It has been assumed throughout that this Statute authorizes the un- of a Foreign ship in Uritisli waters, if its provisions have been violated. That having been admitted, and taken as basis of the whole of the proceeding, their Lordships do not think themselves under the necessity of giving any opinion on the point whether that construction of the Statute be right or not. It is necessary to bear in mind that this seizure can be justified only on. the grounds that are furnished by that Statute. Th< learned Judge in the Court below has decided, and very rightly. VOL. I.] CASES IN THE PEIVY COUNCIL. 277 that there was no cause for the condemnation of the vessel ; but j. c. he has refused to award damages or costs under the power given to isee him by the 35th section of the Statute, because in his judgment CASANOVA the seizure and the prosecution were, under the circumstances of , !/ * lllE Ql'KliN. the case, justifiable. "Whether there was, or was not, a probable ground for seizure must depend upon the state of the law as it BICABDO stood at the time of that Statute, and as it is embodied therein. k - CHMn)T - By a subsequent Act, 5 & 6 Will. 4, c. 60, which is not applicable to the seizure of Foreign vessels in British harbours, but applies to the capture of Foreign vessels on the high seas, a particular rule of evidence is given, viz. that the fact of there being on board the vessel an unreasonable quantity or number of water-casks, shall be considered as furnishing such a presumptio juris that the vessel .\as intended to be employed in the Slave trade, as to require the Judge, even if the vessel be not condemned, to refuse any damages or any costs to the owner of the vessel as against the Captor ; provided, however, that the effect of the circumstance to which 1 have referred shall be neutralized or annulled if the ship have a certificate stating that security has been given that the casks should be only used for the reception of palm oil, or employed in some other lawful trade. Now, the learned Judge refers to that Statute as enabling him to arrive at the conclusion that the existence on board this ship, the Eicardo Schmidt, of an unusual quantity of water-casks, is a circumstance of such grave suspicion as to justify the seizure. The learned Judge was not at liberty to use the rule of evidence introduced by that subsequent Statute as applicable to the case before him. It was perfectly competent to him to refer to that Statute as an Act that recognized the fact of having an unusual number of water-casks on board as a circum- stance of suspicion ; but the learned Judge was not at liberty to take the circumstance per se, as a Judge applying the Act, 5 & 6 \Yill. 1. r. (10, might have done. He was bound to take it in conjunction with all the other circumstances of the case ; for the rule that he had to abide by, the law which he had to administer, namely, the 5 Geo. 4, c. 113, provides distinctly, that damages and costs shall be given when it shall appear to the Court that the capture, seizure, or prosecution, shall not be justified, by the circumstances of the case. All the circumstances, Ihoivfyre, \\ere Oi -:.s IN Tin: I-I.I\Y OOUH< n.. to bo taken into consideration, and no peon lit or force i-.- , ought to have been born :u the Act. .".A *; Will. I.e. 60, and attrilmte'l i.. tli>- circumstance .nusual number of wu 1 Tin The bonafide* ot iip in trade is a thing -tallished by the judgment; I /xma fide employmcM >hip was also, we think, manifest, or miirlit have be ; >t, to any person going on board the vessel. The vessel is a \ large ship, of a re-: -innage of about GOO tons, but cap ; of actually carrying a cargo of 900 tons. Such vessels are n< t!io class commonly engaged in the Slave trade. The vessel, at the time she was seize*!, ha'l previously been < xamined, and for DM time detained l>y tin- Custom House authorities at Sierra Leone. They were sati> result of their exai. 1 tlu-y accordingly r -leased the vessel. In that state of circum- stances, Lieutenant Dunlop, an Officer apparently aeci-lcntali the harbour of Sierra Leone, not holding any official position, or having any official employment th-ro, tak. s ujxjn himself to \ the vessel and to seize her. When h- vi.-ited the vessel, what ry intelligence with regard to the history of the ship, the ownership of the ship, and :ers were produced to him that could 1. in no reasonable man's mind any doubt of the ship having been originally fitted out for, and employed in, the ordinary purposes of commerce. VOL. I.] CASES IN THE PEIVY COUNCIL. 279 afterwards received from the Custom House the other papers of J. C. the ship. He had, from the Captain, information that at the time iscc of the seizure he was engaged on shore in the sale of the residue CASANOVA of the outward cargo to a gentleman of the greatest respectability Tnj , Q VEEN . in the Colony, Mr. Heddle, to whom the Captain had brought letters of recommendation, and also in purchasing from Mr. Heddle -Ru AI-LDO 40,000 bushels of ground nuts, which the letter of the owner shews __ " it was his original intention, and part of his instructions to the Captain, to buy for the purpose of filling up the ship with a return cargo. In face of all these circumstances, Lieutenant Dunlop detained the ship ; and the question is whether, as the law stands under the Statute, 5 Geo. 4, c. 113, the mere fact of these empty casks being found in the hold of the ship is sufficient to weigh down at once all the other external manifest appearances of the ship being a bond fide trader, of her having gone forth as such, and been em- ployed as such up to the time of her arrival in the harbour of Sierra Leone. But in addition to the water-casks, Lieutenant Dunlop says, that there were other suspicious circumstances. One of 'them is, that the vessel had a second deck, which, he says, might have been used for a slave deck. Now, the vessel is one of very considerable depth, and the evidence shews (what no man acquainted with the subject can doubt) that a vessel of that depth, carrying 900 tons, rould not be loaded without the additional deck in question. The evidence is distinct that vessels of this size are furnished with a second deck. The evidence of one of the witnesses is even more positive, that a vessel of this size, inasmuch as if loaded she would not be safe without a second deck, could not obtain insurance if she had not that second deck. The second deck, therefore, instead of tending to create suspicion, tends to give confirmation to the conclusion that the vessel was bond fide intended to be engaged in trade, and to be used as an ordinary ship of burden in commerce. Lieutenant Dunlop further refers to the existence of a consider- able quantity of cooking utensils'on board the ship beyond what, in his judgment, the crew would require ; but there is evidence upon that point, that in the opinion of two or three disinterested wit- nesses the amount of the ship's vessels for cooking was less than CASES IN THE PRIVY COUNCIL. tlii- ordinary wants of the Gaptai ich a vessel . L8M d necessary. , v ha\e. then-fop-, in* inces hero to which any par- -. ' i^ht or force is to be ^ivi-n ly law, as under tin- .' Will. !. >uld l>e th' rase, but w have a case to be judged under all th' circumstances, win ; '. jierson going on board ' a ship lyiiii; in the harbour of Sierra Leone, and examining her going over her couM, from the mere circuinstai. i>ks, be warranted in ..rri\in:r at th.- en this ship was ii be engaged in the Slave tiade. 1 need not point out, what was very \\cll commented upon by one of the Counsel for tin- Appellant, that there may be jr necessity for laying doun clear and detinite rules, as they are ; down in the Statute, 5 & 6 Will. 4, c. 60, for the purpose of Lruiding Captors at sea, for there the transaction is of necessi; hurried one, Admitting of no very minute examination; and Legislature, therefore, defines certain things in that Statute wh if they are not plainly accounted for, shall constitute an amour probdbilis causa sufficient to exempt the Captor from consequences even if the vessel be not condemned. But v i come to tin- case of a ship quietly lying at anchor in a l>riti-h harbour, and having been there for some time; not mani the smallest indication ol anxiety to quit the harbour, but actually and plainly engaged in bond fide trade within the harbour; the obligation on a Seizor to justify what he has done is a very strict obliga- tion, and one that cannot be discharged by a reference to circum- stances which, per se, have not an overpowering weight on tin- mind at the time when the seizure was made. It appears that on the very day on which this seizure was made, not only was the Captain on shore bargaining for cargo for his vessel, but some of these very casks, being no longer required for the ordinary requi- :ons of the trade in palm oil, \\ere being gold, and had been sent on shore for the purpose of sale by the Captain of the vessel. With regard to the casks, there was another circumstance which ought to have been looked to before the Seizor ventured upon such act as the seizing of the vessel ; we mean, an inquiry whei the casks upon which his suspicion lighted were or were not t< > found in the manifest of the vessel, and wh--thr-r that manifest VOL. I.J CASES IN THE PEIVY COUNCIL. 281 accompanied or not by any proof that the ship had sailed with the J. C. knowledge of the proper Italian authorities that part of her stores 1866 consisted of these empty casks. Now, without deciding that the CASAKOVA documents produced would, if the case had arisen under the T Q UEEX Statute, 5 & 6 Will. 4, c. CO, have amounted to a certificate of THE security having been given, yet it is clear, and it is a proof of the " EICAKDO lona fides of the Master of the ship, that he had drawn the atten- tion of the authorities of his country to the fact of part of his lading consisting of these water-casks, and that his ship had been cleared by the authorities with a knowledge that these empty casks were on board. These papers were produced to Lieutenant Dunlop at or immediately after the time when the seizure was made. There was the fullest desire to give him information. The history of the vessel's proceedings he might have read from the log. The nature of her ownership was manifested by the documents that he received; the character of her antecedent employment was evidenced by the palm oil she had on board ; the desire of carrying on bond fide commerce was evidenced by the very employment in which he found her, the Captain being at that time engaged in procuring cargo on shore. Now, we would ask, how is it possible for any merchant ship to visit the coast of Africa, and a British harbour on the coast of Africa, for the purpose of legitimate commerce, if under circum- stances such as these she is liable to be seized merely upon the ground of her having certain articles on board, actually required for the purposes of the trade in which she professes to be engaged, and in which it is proved that she had for some time previously been actually engaged ? Their Lordships are, therefore, of opinion, that, as -to the exist- ence of the water-casks, that circumstance is weighed down, explained, and its force entirely taken away by the other circum- stances that were manifest and apparent; and that under the Statute, 5 Geo. 4, c. 113, that simple fact, adding to it the alleged slave deck, adding' to it the cooking utensils, did not, under the circumstances, constitute a reasonable prima facie case for concluding that the vessel must be condemned unless those things were explained. There was no probdbdis causa for seizure. Therefore, taking all the circumstances of the case, as they CA> .1. i and ought to have ; i>-v. tin- tiin.-, iliere was nothing that tli- *-i/ur,-. an i .-u these \XOVA P r ' - \\ill luinil.lv achiv II, T Majesty to reverse ' so much of th- Is that tl. and prosccir Tin \\ere justilied l.v tin- circumstances, and to declai Tl!' _-iit t ha\e been restored, together \\ith damages and costs; i tin v \\ill nromnicnd Her Majesty to make the usual reference to the. Admiralty U-"_'i-' : with M-n:h;uits to be aSSO- ked \\ith him, for the purpose of ase* tin- nai amount of damages \\hich. under tin- .aices, ought to 1 been ;iward'-d to the Appellant. r Lordsliijis are glad to find that the Officers of ti have IKH?II directed to attend in support of the case of Respondents. They think, however, that the national honour iiiires that y tin- Chief WALLACE. J us tice. Afl the Appellant iiit'-nd' d t- 1IT M;ij---i_ Council for leave to appeal from this refusal, the Chief \v;^ r.-ijiif>trd l>y tli.- A|>j"-ll;uit, \\itli ;t \i--\\ t .-ii'- file the judgment delivered l>y him in that case. The < thereupon iih r leave to appeal. In the course of the other suit, Wallace v. Connolly, a decision was likewise given adverse to the Appellant. Such decision was pronounced by the Chief Justice after hea: both the parties upon affidavits in open Court, and after taking time to consider ; but the Chief Justice, in his judgment, stated that he had received from a Mr. Smith, out of Court, information which differed from the statements made by the Appellant in one of the affidavits ; the Appellant not having been present at the alleged interview with Mr. Smith. Previously also to the month of January, 18G5, the Appellant had been informed that, in reference to other proceedings in which he was interested before the Supreme Court, observations preju- dicial to him had been made to one of the parties by the Chief Justice out of Court, and that certain proceedings against him had been recommended by the Chief Justice in an inter- view with one of the parties; and in certain matters also in which the Appellant was professionally engaged before him at Chambers, the Chief Justice had, as the Appellant conceived, acted in a manner which he deemed unusual and oppressive, and which induced him, as he alleged, to avoid Chamber business before the Chief Justice. On the 10th of January, 1863, an Order was made by Mr. Suther- land, the Judge of the Court of Probate at Halifax, declaring that the Appellant had been guilty of a contempt of the Court, and suspend- ing him from practising therein as an Advocate and Proctor. The Appellant appealed from the Order of the Judge of Probate to the VOL. I.] CASES IN THE PKIVY COUNCIL. 285 Supreme Court, conceiving that he was entitled to such appeal under J. 0. the provisions of the Revised Statutes of Nova Scotia, c. 127, s. 77. 1866 The appeal came on for hearing before the Supreme Court in j n re the month of December, 1864, when judgment was given to the WALLACE - effect, that the appeal, having been taken under the Provincial Statute, and not by Certiorari, was not judicially before the Court and could not be entertained. In the month of January, 1865, the Appellant moved the Chief Justice, at Chambers, to allow an appeal from that decision to Her Majesty in Council. The Chief Justice refused leave to appeal from the decision of the Supreme Court against the Order of suspension made by the Judge of the Court of Probate. The judgment of the Supreme Court, both upon the main question of the appeal from the Order of suspension, and the application of the Appellant for leave to appeal there- from to Her Majesty in Council, was reduced to writing by the Cliief Justice, and filed. The Appellant being desirous to petition Her Majesty in Coun- cil for leave to appeal from the last-mentioned judgment of the Supreme Court, and being, as he stated, apprehensive that addi- tions might be made to the written judgment, as he alleged was done in the case of Dunphy v. Wallace, as well as aggrieved at the course pursued by the Chief Justice in the cases of Dunphy v. Wallace and Wallace v. Connolly, and feeling injured by the ob- servations and the recommendations of proceedings which it had been reported to him, as already stated, had been made with reference to him by the Chief Justice ; on the 26th January, 1865, sent the following letter to the Chief Justice : " The Honourable the Chief Justice. Sir, I shall feel obliged by your filing the judgment given in Court, in my case with Mr. Sutherland, without any additions. I say without any addi- 1ions, because in the case of Dunphy v. Wallace, I had much reason to complain of the decision there filed, as very material additions were made to it, and much said with a view, as I and others thought, of meeting me at England. I must, I think, decline sending to England the decision given on my petition for an appeal, in consequence of a statement made therein, to the effect that other modes were pointed out by the Court by which the matter might have been removed; but I remember 3 Z 2 280 CA J. C. only ono way mentioned, that by Ceriiorari, anl thix n rtainly IMfl is not modes. Now, as regards one's posit i> -val In ra of a cause by Certiorari, I think I can safely say that no Prac- \v\uj. L. t j,j (llli r at our |{ ar understands it. In tli- case of The City of Halifax v. WdHace, according to tin- decision !' tin- Court, I would not have been allowed to try the cause, only for th<- cause with Mr. Sutlierland been removed by Certior it would have been sent to a jury; h-avin^ th- impression on my mind that the party so removing a cause has a right, as a matter of course, to a trial, the v. TV reverse of what - deeid- d in the case of The City of Halifax v. WaUa<-' . It was in that case I good-naturedly remark* ut I can't help thinking, that I am not fairly d'-alt with by the Court or Judges, an 1 that the well-beaten track is often departed from for some byc-\\.i\ t <1 i at me. Even in that little case of Wallace v. Connolly, the case was not decided upon the affidavits, but a person was spoken to out of doors, and the case decided upon what he said, not under oath, while the rule is, that a Judge can't use even knowledge within his own mind, much less obtain it from others, but must decide upon the affidavits. Better tell me at once to bring no affidavits into Court; for if Mr. Smith, or any such person, shall even state to me that there is a different impression of the facts on his mind, you must fail as a matter of course. I could also recall cases where the decision was, I believe, largely influenced, if not wholly based, upon information received privately from the wife of one of the parties by the Judge. Is this justice ? I think a Judge in England would be a little startled to hear that a Judge in Nova Scotia, listened to, much less decided upon, information obtained in this way. VOL. I.] CASES IN THE PPJVY COUNCIL. 287 " I was on more than one occasion almost tempted to bring these J. C. things to the notice of the Legislature, but I overlooked them, as I 1866 trust you will overlook anything in this, should there be anything j n re in it not strictly within allowable limits. Your very obedient WALLACE - servant T. J. Wallace." The Appellant stated, in the affidavit he afterwards made, that in writing this letter he had no intention whatever to impugn the conduct of any of the Puisne Judges of the Supreme Court, and no intention whatever of offending or insulting either them or the Chief Justice, his only object being to state in tem- perate language the grievances of which he felt he. had reason to complain ; but fearing afterwards that the course taken under some degree of irritation might be considered irregular or offensive, he had availed himself of an opportunity of meeting the Chief Justice to disavow any intention to offend or insult him, and offered to him a full apology. Notwithstanding such apology, however, a rule of the Supreme Court was, on the 18th of July, 1865, without any motion to that effect by Counsel, drawn up on reading the letter, adjudging it a contempt of Court, and calling upon the Appellant to shew cause why he should not be suspended from practice as an Attorney and Barrister until he should make a suitable apology in writing, to be read in open Court, for such his contempt. On the 22nd of July, 1865, the Appellant appeared in person, and being called upon by the Court, shewed cause against the rule nisi, upon an affidavit in which he related the circumstances under which the letter was written, and the fact that he had made an apology to the Chief Justice. On the 29th of July, 1865, the rule was made absolute by the Supremo Court to suspend the Appellant from practice as an Attorney and Barrister of the Court, without fixing any period for such suspension, or annexing any condition thereto. The Chief Justice, the other five Judges being present, deli- vered the following judgment of the Court (1) : " The judgment I am about to pronounce is to be taken as the judgment of the whole Court ; and having been submitted to my brother Judges, (1) As the Judges did not appear upon the appeal, it is deemed right to set out in extenso their judgment, giving the reasons for the Order of suspension. 288 CASES IN THE PBTVT COUNCIL. [L. B. J. 0. and mot their approval, it U to be received as the unanimous 1866 expression of our opinions. Tho Judp- ute at 1 ^' ~ having passed an Order on the 10th of January, 1863, 1-y him in the face of that Court, and suspending him from pra< therein as Advocate or Proctor, Mr. Wallace appealed from 1 Order to the Supreme Court, and th-- :i>jK-al was heard before us in December hist, when \\ 1, for the reasons assigned in a \\ ritton judgment now on file, that the appeal having been ta under the Provincial Statute, and not by Certiorari, could be entertained. That Mr. Wallace had mistaken his course, and. that the contempt, therefore, was not judicially be lure us. In January last, having taken charge of the- business for that month, Mr. Wallace moved me at Chambers to allow an appeal from above decision to Her Majesty in Her Privy Council As a ni; of this kind, whoever the mover might be, affected more or less the privileges of the Bar, I thought it advisable to consult such of my brethren as were in town, all the Judges, in l;i<-t, being her- Mr. Justice Dodd, then in Cape Breton, and they concurred vith me in thinking, as the main question of a contempt had not been considered, and as the case on that account was not ripe for an appeal, that the appeal ought not to be allowed. The reasons for that decision were expanded in the written judgment already referred to, which was filed on the 24th of January, in Mr. Wallace's presence, the instant it was delivered. On the 26th of the same month, Mr. Wallace thought fit to send to me the letter which has led to these proceedings. In that letter he not only impugns, in very offensive terms, my decision of the 24th of January, which appeared on the face of it to have been concurred in by the other Judges, but he assails also the judgment of the whole Court, on his appeal in December from the Court of Probate. He then makes a general charge against the Judges, in language too insulting to be repeated, and winds up with a criticism, in the same style, on some of the pettier matters which I had decided at Chambers. A letter of this character from a Practitioner to a Judge of an English Court is an outrage which probably was never perpetrated before, and which it was impossible to pass over in silence. Neither was it a fit matter to be dealt with by any one Judge, and, therefore, I VOL. I] CASES IN THE PEIVY COUNCIL. 289 contented myself with stating, in the presence of Mr. Wallace and J. C. of the Bar at the next Chamber clay, that I had received a letter of ISGG this extraordinary kind, and that, on the first day of the ensuing Inre Trinity Term, Mr. Wallace would be called upon to answer it. WALLACE. While the utmost boldness and liberty of speech and action are fully and freely conceded to every member of the Bar, as belong- ing to his position, and as essential to the rights of his Clients, no less than to his own, and none on this Bench would attempt or desire to restrain them, on the other hand, a gentlemanly con- duct, and a decorous and respectful treatment of the Judges of the land, in all intercourse between them and the Bar, must necessarily be observed by the latter. If the Judges can be insulted by language or letter addressed to them, and such a contempt of their persons and authority committed with impunity, their weight and influence would be lost, and, failing to vindicate the dignity of their office thus outraged, they would forfeit, and deserve to for- feit, the public respect and confidence so necessary to their character and the due administration of justice. It was this feeling, and the necessity thus imposed on us by the letter of Mr. Wallace, rather than any personal consideration, which has compelled us to take steps against him. On the 18th instant his letter was accordingly verified and filed, and we passed a rule nisi. By the terms of this rule, the offence of which he was guilty and the consequences to which it would subject him, were stated, and the mode by which he might atone for the one and avoid the other. To any well- regulated mind, the opportunity so afforded for consideration and apology would have been all that was required. If through ignorance, or want of judgment, or the absence of proper feeling, in a moment of irritation, from infirmity of temper, or any other cause short of a deliberate intention to insult, such a letter had 11 hastily penned, time and reflection would have enabled the delinquent to see his error, and to make such reparation for it as was in his power. Let us see what course Mr. Wallace has pursued. On tlie 22nd instant he appeared in person to shew cause, and was heard patiently and at length, upon several objec- tions to our proceedings. He urged, among other things, that the Court had no authority to move in this matter, except at the instance of a Barrister ; that there was no evidence of the letter o l)( ) CASES IN THE PRIVY COUNCIL [L. B. j. c. haying come into my possession, or how it had gone out of possession of the \\rit--r; thai r oml 1 not be constr a contempt; that if it were a < it \\cul-l not \in-li. -ate a AC*, suspension ; and on these and other grounds of a technical insisted that ho ought not to be called upon. Hut .Mr. Wallace entirely misapprehended his posit inn. This was not a cent- inpt for the non-payment of money, or for disobeying some Order ot Court in the progress of a suit, but a contempt Court itself, and \\hieh the Court has the authority anl t to adjudicate upon of its own motion, without invoking the n; any Barrister, upon the production of the obnoxious letter 1-y the Judge to whom it was addressed. lu Lechmere CliarUon's Case (1), Lord Coitenham, then Lord Chancellor, pursued the course we have adopted here. Letters having been addressed by Mr. Chartton, a Barrister and Member of Parliament, to one of the Masters oi Court of Chancery, and to the Lord Chancellor, of a highly objec- tionable kind, and reflecting upon the proceedings of the Master in an inquiry then before him, his Lordship, after dirt eting copi' be served upon the parties concerned (here there are no parties to be served), took notice thereof in open Court, and alt ring that the letter ta the Master contained scandalous matter, and that the conduct of Mr. Charlion, in writing the two letters, was a contempt of the Court of Chancery, passed an Order that he should shew cause on a certain day, why he should not be committed to the Fled Prison for his contempt. Mr. Charlton having failed to shew cause, the Chancellor, after remarking that every writing, letter, or publication, which has for its object to divert the course of justice, is a contempt of the Court, and that every insult offered to a Judge in the exercise of the duties of his offir a contempt, concluded by ordering Mr. Charlions committal. This was effected at a subsequent day, and the House of Commons having refused to interfere, and Mr. Charlton having made a suitable submission, and expressed his contrition for the offence he had committed, he was discharged, after having been in prison for three weeks. It will be seen, therefore, that we have guided ourselves by a precedent of high authority, while our right to sub- stitute a suspension from practice for imprisonment is too clear to (1) 2 My. & Cr. 310. VOL. I.] CASES IN THE PKTYY COUNCIL. 291 be disputed. It is proper also to add, that we have looked into the J. C. cases of Smith v. The Justices of Sierra Leone (1), In re Downie and 1866 Arrindell (2), in the Privy Council, cited from 3rd and 7th of j n re Moore s P. C. Cases, as well as several others to be found in 1st ^ ALLACE - Knapps Heps., and 1st and 8th Moore's P. C. Cases. In addition to the technical and other grounds we have thus disposed of, in the place of the apology, which, as I have said, this Court might reasonably have expected, and which any judicious adviser would certainly have recommended, Mr. Wallace produced an affidavit made by himself, which aggravates his offence, and is an accumula- tion of fresh insults. Had we. thought fit, we would have been justified in refusing to receive this affidavit, or in interrupting him while reading it. As we had already pronounced his letter to be a contempt, it was not competent for him to attempt a justification, and he could shew cause only by denying, if he could, or, if possi- ble, explaining away or extenuating his offence. But we preferred affording him a full hearing, and as no letter or affidavit of his could touch the reputation of this Bench, or any member of it, we allowed him to go on without interfering. This affidavit is the more inexcusable because in the nature of things it could not be answered. Parts of it are founded upon hearsay, which is not evidence, and in the most trifling matters is not admissible in this Court. Parts of it rest upon the mere assertion of Mr. Wallace, at variance with all our impressions and recollections, but in which he must pass of course uncontradicted. And much of it relates to recent transactions in the knowledge of one or other of the mem- bers of the Bar, or of the Officers of the Court, and which are represented in a manner quite inconsistent with the facts, and with the papers on the file. We content ourselves with these general observations, for it is obvious that to descend into details, and stoop to a vindication of this Court, would be a complete surrender of its independence and its dignity. If Judges forget their duty, if they lay themselves open to imputation, and are amenable to censure, adequate remedies are provided by the law and constitution of the country. A single Judge at every step is subject to control. Every charge he delivers to a jury, every Order he signs at (1) 3 Moore's P. C. Cases, 361 ; and 7 Moore's P. C. Cases, 174. (2) 3 Moore's P. C. Cases, 414. CASES IN THE PRIVY COUNCIL. [L J. c. Chambers, every taxation of cost*, every jiuli. refusal to act, may be appealed from to hi- l.n-ihn n ; an*. higher breaches of duty l>\ ..11 the Judges, th \\AI.UACK. are the means of constitutional r. dr. .s-. Jiut this i> th.- tir-t i that Judges have been assailed in their own Court by a Practiti when invited to atone for a coiit.-mj.t, jiutiin^r <>n the files an alli-lavit which in -\. TV paragraph is a new offence. It is evii that no Court, having a just regard to its positi . permit such au affidavit to remain among its records, and, i , we direct this affidavit to be taken off the file. In conclusion, we have only to repeat that \\e \\mild willingly have been excused from moving in this matter. \Vo have not been actuated by pers< resentment, nor by any apprehensions that Mr. Wallaces actions or censure in any shape could possibly excite. We have looked only to what was required for the due administration of the law, and u hile there has never been any difference of opinion or doubt ain ourselves as to what was necessary and proper to be done, we have taken care that ample time should be afforded to the part\ '.'.ct upon his position, and avert the consequences he has drawn down upouhiiusell'. We have no alt' m\v but the perform- ance of an imperative duty in directing the following rule to be iiled." The rule nisi was then made absolute in pursuance of the judgment, suspending the Appellant from practice as an Attorney and Barrister in that Court. The Appellant applied to the Supreme Court for leave to appeal to Her Majesty in Council, when the following judgment of the Court, giving leave to appeal, was delivered 1>\ the ( hiet' Justice, the other five Judges being present: "3Ir. Wallace having moved in person for leave to appeal to Her Majesty in Her Privy Council, from the rule mode on the 29th ult., sus- pending him from practice as an Attorney and Barrister of this Court, for a contempt thereof; we have referred to the Order of Her Majesty in Council, of the 20th of March, 1863, making provision for appeals to Her Majesty in Council from this Court ; and from the terms in which that Order is drawn, as well as from the cases decided in the Privy Council, we are of opinion, that the Order in Council does not extend to such cases, and that it is incum- bent on Mr. Wallace to apply to Her Majesty, in the first instance, VOL. I] CASES IN THE PRIVY COUNCIL. 293 to admit his appeal. But, inasmuch as Mr. Wallace has applied to J. C. us for such leave, complaining of the injury and delay to which our 1866 refusal would subject him, we have decided on giving him such j n re leave, so far as we have power and authority so to do, not requiring from him any security for costs, but leaving him to act as he may be advised therein, or as Her Majesty may see fit to order." The Appellant brought the present appeal, but in consequence of the Judges of the Supreme Court announcing that they would not appear, the appeal was heard ex parte. Sir Roundell Palmer, Q.C., and Mr. T. D. Archibald, for the Appellant : The Order making the rule absolute suspending the Appellant from practising as an Attorney and Barrister in the Supreme Court at Halifax, until he should have made a suitable apology, is illegal as well as oppressive. The contempt, if any, committed by the Appellant in writing the letter of the 26th of January, 1865, to the Chief Justice, was not committed by him in his professional character as an Attorney or Barrister, nor was it a contempt committed in open Court. It was a private letter written by him in his character of a suitor, and is in no respect a public document ; and if anything unguarded and disrespectful was contained in it, nevertheless the apology, contained in the letter, begging the Chief Justice to over- look anything, if there should be anything in it not strictly within allowable limits, ought to have satisfied the Chief Justice ; but the subsequent verbal apology made, as sworn to by the Appellant, was an ample expiation of the supposed offence. This was not a case of professional misconduct, coming within the decision of this Court in Bunny v. TJie Judges of New Zealand (1), nor is it similar to Lechmere Charltons Case (2), relied upon by the Judges in the Court below, as the letter there, besides being intemperate and insulting, contained a threat against an Officer of the Court. Smith v. The Justices of Sierra Leone (3), In re Downie and Arrindttt (4), Smith v. The Justices of Sierra Leone (5), as well as Rainy v. The Justices of Sierra Leone (6), and the earlier case (1) 15 Moore's P. C. Cases, 164. (4) 3 Moore's P. C. Cases, 414. (2) 2 My. & Cr. 316. (5) 7 Moore's P. C. Cases, 174. (3) 3 Moore's P. C. Cases, 361. (6) 8 Moore's P. C. Cases, 47. CASES IN THE PBIVY COUK< [L. B. J.CX of The Justices of the Court of Common Pleat ai Antigua (1), is.,.; which were referred to and r.-li.-d on '-low, do Wvw J Inn warrant the Onl r made in this case; for th-y, for the most part, ALLACK * are reversals by this Tribunal of Orders similar to the one we com- plain of. But wo suliinit that, there is an absolute denial of ju.- 1 in this case, for the rule absolute allows the Aj.jM-llant no means of purging his contempt ; but, without disbarring him, or striking him off the rolls of the Supreme Court as an Attorney, improperly suspends him from practice, indefinitely, and during the pleasure of the Court. The pra to fine for contempt of Court: TJie King v. Clement (2) ; In re Pater (3). The demand for a written apo- logy to be read in open Court, which the rule nisi required, was un- precedented and unusual ; the only instance of such a requirement was in Cants Wilsons Case (4). which was under totally differ, nt cir- cumstances, and was decided by the law of Jersey, and not the law of England and the practice of our Courts, which prevails in th.- Supreme Court at Halifax: that Court having the same pov as are exercised by the Courts of Chancery, Queen's R : Common Pleas, and Exchequer in England : Revised Statutes of the Province of Nova Scotia, 3rd Ser. Tit. 34., ch. 123, sect. 1. LORD WESTBUBY: The Appellant in this case is an Advocate, and also an Attorney, admitted to practice in the Supreme Court of Nova Scotia. It appears that he was also a suitor in that Court. In two or three cases in which he was such suitor he seems to have supposed that he had reason to complain of the conduct of the Judges of the Court, and he accordingly wrote a letter, addressed to the Chief Justice, reflecting on the Judges, and on the administration of justice generally in the Court ; which undoubtedly was a letter of a most reprehensible kind. This letter was a contempt of Court, which it was hardly pos- sible for the Court to omit taking cognizance of. It was an offence, however, committed by an individual in his capacity of a suitor in respect of his supposed rights as a suitor, and of an imaginary injury done to him as a suitor ; and it had no (1) 1 Knapp's Rep. 267. (3) 33 L. J. (N. S.) M. I. (2) 4 B. & All. 218. (4) 7 Q. B. Pep. 984. VOL. I] CASES IN THE PRIVY COUNCIL. 295 connection whatever with his professional character, or anything done by him professionally, either as an Advocate or an Attorney. It was a contempt of Court committed by an individual in his j n re personal character only. WALLACE. To offences of that kind there has been attached by law and by long practice a definite kind of punishment, viz. fine and imprison- ment. It must not, however, be supposed that a Court of Justice has not the power to remove the Officers of the Court if unfit to be entrusted with a professional status and character. If an Advocate, for example, were found guilty of crime, there is no doubt that the Court would suspend him. If an Attorney be found guilty of moral delinquency in his private character, there is no doubt that he may be struck off the Roll. But in this particular case there is no delictum brought forward or assigned, except that which results from the fact of addressing an improper and contemptuous letter to the Chief Justice of the Court, in respect of something supposed to have been done unjustly to the writer in his private capacity as a suitor. We think, therefore, there was no necessity for the Judges to go further than to award to that offence the customary punishment for contempt of Court. Wo do not find anything which renders it expedient for the public interest, or right for the Court, to interfere with the status of the individual as a Practitioner in that Court. In that respect, there- fore, we think that the Judges departed from the course which ought to have been pursued, by adopting a different description of punishment from the ordinary punishment for offences of this nature. AYhen an offence was committed which might have been adequately corrected by that punishment, and the offence was not one which subjected the individual committing it to anything like general infamy, or an imputation of bad character, so as to ivmlrr his remaining in the Court as a Practitioner improper, we think it was not competent to the Court to inflict upon him a professional punishment for an act which was not done profes- sionally, and which act, per se, did not render him improper to remain as a Practitioner of the Court On this ground, therefore, we do not approve of the Order. At the same time we desire it to be understood that we entirely concur CASES DC TITK PRIVY OOUN' [L. R. j a with the Judges of the Court below in tli. estimate ulnVli have formed of the gross im; of the con Appellant. But we are still of opin his conduct did ALLACI. require and did not authorize a departure from the ordinary mode and standard of punishment; and upon that ground, and ground cnly, we shall adviso II< r Majesty to discharge the Oi in respect of its having substituted a ] n illy and mode of punish- ment \\hirh was not the appropriate and fitting punishment for the case in question. Solicitors for the Appellant: H. R. HM & Son. j.C IN THE MATTER OF LEITH'S ESTA'IT. U2 ( >RGE KE^ ? RY CHA3IBERS . . . APPELLANT; ffov. 8. PATRICK DAVIDSON, AND OTHERS . . RESPONI ON APPEAL FROM THE COURT OF THE COMV RS FOR BALE OF ESTATES IN THE WEST INDIES. Wat India Estate* Consignee and Mortgagee General lien, extent of. The right of a Consignee of a Wtst India Estate gives him a lien on the Plantation in respect of the balance due to him, and is an exception to the general rale which applies to Principal and Agent. Such lien not bcinc: tho result of an express contract, but given by implication of law, if created by written contract, is excluded. Therefore, if a Consignee takes an express security, such security being the stipulation and agreement of the parties, it excludes his general lien. 80 held by the Judicial Committee, where the party claiming a general lien as Consignee, was also a Mortgagee of certain estates, and had, by deed, stipulated for the consignment of their produce, as well as that of other Plantations, subject to the rights and interests of existing Mortgages then subsisting thereon. IX this case the appeal was brought from an Order of the Com- missioners for sale of incumbered estates in the West Indies, disallowing the claim of the Appellant to priority under a * Present : LORD WMTBCBT, SIB JAMES WILLIAM COLVTLE, AND SIB EDWABD VAUGHAK WILLIAMS. VOL. I.] CASES IN THE PEIVT COUNCIL. 297 consignment deed. The ground of the decision was, that the J. o. consignment deed was, by its terms, subject to prior Mortgages 1866 to the Respondents. *~T* m . In re LEITH s The circumstances were these : ESTATE. On the 27th of January, 1856, John Leith, since deceased, CHAMBERS and James Leith, both of the Island of Tobago, Planters, were indebted to the Respondents as Executors and Trustees of their late father, Duncan Davidson, in the sum of 10,000. By Indentures of Mortgage, dated the 26th and 27th of January, 1856, the Leiths mortgaged to the Respondents certain estates in the Island of Tobago, called New Grange, Old Grange, and Grafton, and an estate called Kendal Place, and other estates in the same Island, together with the live and dead stock then and thereafter to be upon the same, to secure the 10,000 and interest. By the same Mortgage deed the 10,000, was covenanted to be paid by instalments, and the Leiths covenanted to ship and consign to the Respondents fifty hogsheads of sugar, on or before the 15th of July in every year. James Leith was himself seised of other estates in the Island of Tobago, called Charlotte-Vine, Telescope, and Fairfield; and by an Indenture of Mortgage, dated the 23rd of January, 1860, he mort- gaged these estates to the Appellant in fee, to secure the amount of his then debt and future advances, not together to exceed the sum of 2,500. By another Indenture of Mortgage, dated the 23rd of January, 1860, the Leiths mortgaged a town lot in Scarborough, in Tobago, in fee, to secure the Appellant's debt and further advances, not in the whole to exceed 800. James Leith was also seised of other estates in Tobago, called Speyside and Eunnymede; and by an Indenture, or covenant for consignment of produce, dated the 15th of March, 1860, made between the Leiths of the one part, and the Appellant of the other part, after reciting the two last-mentioned Mortgages, and the seisin of the Leiths of New Grange, Old Grange, and Kendal Place, subject to certain Mortgages or charges affecting the same, or some of them, and also an agreement for consignment of two- thirds of all the produce from the estates, so long only as pos- session should not be adversely taken by the parties holding the j 0. , \] ' . ' i ''.!- . . ; : :. i - accounts were intended to be kept by the Appellant -h Jamet rTLcrra't Letth alon- other with both the LtMi*; and recit E * r * m tho first mentioned Indent nre of Mortgage of the 23rd of January, UOTM 1800, should be a s- r both accounts e >t exceeding ATmoar. 2,500, and farther re< unts had been balanced, shewing 806. 1. 3d. due by Jam* LeiV/i.und t'l.JlT. !:>-. Qd. due by the J>i/fo, as of the 31st of December, 1859 ; it was \\l\- nessed, thnt the Leiiht covenanted witli Appellant that during five yean, and so long as the mortgages of the 23rd of January, 1860, should continue, to consign to the Appellant not less than two- thirds of all the sugar, rum and other produce, made in Charloite- Vffle, Telescope, Speyside, Ilunnymede, Old Grange, New Grange, Graflon, and Kendal Place, and on tln-ir 1 raving the Island to nominate the Appellant's nominee as Manager of the estates, and to send to th- Appellant lists of supplies for the estates, whi'-h the Appellant was to have the option of supplying ; and by the same deed the application of the proceeds of the consignments was to be for payment as follows: first of interest on the Mortgage debts due to the Appellant ; second, of the costs of supplies by the Appellant; third, of drafts for Island contingencies, or for dis- charging any of the before mentioned Mortgages on the plantations or estates ; fourth, of insurances and incidental consignment ex- penses, but so long only as the shipments of each year shall exceed the expenses of the same year ; and lastly, of the principal Mortgage debts of 2500 and 800 ; and the Appellant thereby covenanted so long as the Leilhj covenant to consign lasted, to receive and sell the consignments and apply the proceeds for the purposes above mentioned, and, as long as the annual consignments should yield a surplus above the annual expenses, act as Consignee and Factor of the Leith*. There was also in the deed a covenant for stay of proceedings by the Appellant for five years. notice of the Appellant's consignment deed or claim was given either by the LeitJis, or the Appellant, to the Respondents, nor were the Respondents aware of the existence of the same pre- vious to the claim of the Appellant being filed in this matter. The Respondents never took possession of the mortgaged estates under their mortgage, but loft the management and cultivation of VOL. I] CASES IN THE PEIVY COUNCIL. 299 the estates, as usual, in the hands of the Leiths ; the Mortgagees J. C. relying on the performance by the Leiths of their covenant to John Leith died on the 19th of April, 1862, intestate, leaving EgrATE - James Leith, his partner, and George Leith, his eldest brother and CHAMBERS heir-at-law, whereby the equity of redemption of the mortgaged premises became vested either in James Leith or George Leith, in fee simple. In the month of October, 1862, arrangements were made with James Leith, by Mr. Gillespie, a West Indian Merchant in London, on behalf of the Respondents, by which he was to have all the produce of the mortgaged estates consigned to him on behalf of the Respondents, and at the same time Mr. Gittespie arranged to supply the means of cultivation of the same, upon the understand- ing that James Leith was to apply the means so supplied in such cultivation. The last mentioned consignment transactions resulted in a balance against James Leith, on account of the estates, of the sum. of 581. 12s. Sd. at 31st of December, 1863, and of 328. 10s. lid. at 31st of December, 1864. The estimated produce of Old Grange, New Grange, and Graf ton, and Kendal Place, in the year 1 862, was about 250 hogsheads of sugar. On the 8th of January, 1864, the Respondents filed their peti- tion in the West India Incumbered Estates Court, stating their mortgage debt, and praying for a sale of the mortgaged premises comprised therein ; and after the usual conditional order, and notice for Claimants, and the appointment of a Receiver, the estates were sold on the 21st of February, 1865, and one of the Respondents, Alexander Davidson, was declared the purchaser of New Grange for 1,510; Old Grange, 2,010; and Grafton, 1,010. On the 2nd of June, 1865, the Appellant made a claim in the Incumbered Estates Court, stating that for some years before the 31st December, 1859, and from that time during the period shewn by the account filed therewith, he was the Consignee of the pro- duce of New Grange, Old Grange, and Grafton estates, and Kendal Place. That there was due to him on the balance of the account on the 31st December, 1864, the sum of 2,859. 8s. 2d., which he claimed, with interest at 4 per cent, per annum from that day, VOL. I, 3 2 A ,>,) OASES IN THE PBTVT COUNCIL. [L. B. j. a ont DATTMO*. the estates, and made other payments and advances to the Leitht for the cultivation and working of the estates, and that by reason of such consignments and such shipments, payments, and ad- vances, there was an account current between them relating to tli.- tfcte* The account current filed commenced on the 31st December, 1859, and ended on the 31st December, 18G4, and the first item therein was, " 1859, 31st December. To balance of account current rendered, 1,217. 19." The account only purported to cover advances during the years 1860 and 1861, and to give credit for partial consignments during the years 1860, 1861, and 1864. Some produce from other estates was included in the account, amounting to 466. 11. 7d., wluVh was balanced by a payment of the same amount on the otlif-r side, it was a general account, not purporting to be confined to any particular estate. An affidavit was filed on behalf of the Respondents, by Mr. Giflespie, in which he explained the difference between a Consignee of West India estates and his duties in regard to advances and returns ; and accounts of the produce on the one hand, and the mere account current of a Merchant receiving partial consign- ments and making advances against produce without keeping any accounts of the estate, or being the Consignee thereof on tne other hand, giving instances of Consignee accounts properly so called ; and he stated, that the account of the Appellant was not a Con- signee account, but a mere account current The Respondent, Alexander Davidson, filed his affidavit stating such of the facts, hereinbefore set forth, as related to the Mortgage of the Respon- dents, and especially that no consent, express or implied, was given by them for the consignment deed of the Appellant, and that they were ignorant of its. existence until the claim was made by Appel- lant, and submitting that the Appellant's claim ought to be dis- missed. VOL. I.] CASES IN THE PRIVY COUNCIL. 301 The Appellant filed an affidavit in answer, in which he stated J. c. the origin of his claim under the deed of the 15th of March, I860. 1866 That he had for several years, prior to 1859, been the Consignee In re L EITH ' S of a portion of the crops of the Old Grange, New Grange, Grafton, ESTATE. and Kendal Place estates, and that he had been applied to by the CHAMBERS Leiths at the close of that year for further advances to maintain DAVIDSON. the cultivation of those estates, which he declined to make without some specific arrangement, which resulted in the consignment deed. That there were other estates, and also some stores, belonging to James Leitli, for which he (the Appellant) had made advances, but that all these advances were contained in a sepa- rate account, kept in the name of James Leith only, on which account there was a balance due to him of 900 and upwards, exclusive of the balance of 2,859. 8s. 2d. on the joint account of John Leith and James Leith; and that the crop entries of 466. lls. Id. had been only introduced into the account for con- venience. The Appellant's claim was heard before the Commissioners in the month of July, 1865, and on the 15th of August, 1865, the Chief Commissioner (Mr. Fleming, Q.C.,) delivered the judgment of the Court, disallowing the Appellant's claim to priority over the Mortgagees on the ground that the rights of the Appellant must be governed by the provisions of the consignment deed, and that, according to the true construction of that deed, the Appellant's rights were taken and made subject to the prior title and interest of the Mortgagees ; that the deed stated that the estates were subject to the Mortgages, and that the grantors must be held to have granted only according to their interest as mentioned in the deed, that is, as affected by the Mortgages and the rights of the Mortgagees, and that the consignment was to continue only until possession was taken by the Mortgagees, and was determinable by their act, and that, according to the true construction of the deed, the Appellant's agreement was to take subject to the prior rights of the Mortgagees, and that the Court could not relieve him from the effect of that agreement. The Court also suggested other grounds which appeared to lead to the same conclusion. The present appeal was from this judgment. 3 2 A 2 n-j OASES IN THE PRIVY COUNCIL. [I* H The AUonuy-General (Sir JoAn Jtoft), and Mr. Archibald 8* 1M6 f.r th- A | .| -Hunt : V^V* / r* umTi \V t submit tli.it th- judgment of the learned Chief Commissioner is erroneous, that it is fomn a 11: riewofthe dotietaod rights of a Consignee of a West Indian Kstatc. The dealings with Messrs. Z*tY/<, in furnishing suj>i>l ! -, and accepting the drafts f>r cultivation, acted according to the p -M- r.il usage of M chants and Consignees in this Country of West India estates in the actual occupation of their owners. Such a course of dealing is not only absolutely necessary for the profitable cultivation of the estate, but for preventing the same from becoming deteriorated and g to waste. The effect of such dealing is to give the Consignee a li- n over all other incumbrancers. It is to the disparagement of : admitted lien, that the judgment of the Chief Commissioner goes : and he proceeds on the presumption, that the consignment deed of the 15th of March, 1860, is a waiver or postponement of his general lien as a Consignee, in favour of the Respondents the prior iii'Mimbrancers on the Estate. But the Appellant is himself a Mortgagee of a portion, as well as the Consignee of the estates, and the questions which arise are : First ; to what extent does the general lien extend, against whom, and whether against a Mort- gagee or prior incumbrancer ? and, secondly, whether in this case, the Appellant being Consignee, and having a deed of consignment executed in his favour, which at the same time is a deed of Mortgage, has thereby consented to waive or postpone his rights as Consignee, and take only such interest in the estate as his Mortgage gives him ? The effect of a covenant for consignment in a Mortgage is considered in Bunbury v. Winter (1). Now, as far as the decisions go, the lien of a Consignee has been universally held to extend to the exclusion of the Mortgagee's prior rights. In Scott v. Nedntt (2), where the circumstances seem to have been similar to this case, the decision went to the effect, that where there is a Consignee in receipt of the whole of the proceeds of the estate, and supplying the necessary means for carrying on the estate, if the produce is insufficient to pay the Mortgagees on the estate, the Consignee has a lien on the future proceeds of the estate. [LORD WESTBUBY : Does Lord Eldon, in his judgment in Scott v. (1) U. & W. 255. (2) 14 Ves. 438, VOL. L] CASES IN THE PEIVY COUNCIL. 303 J. C. 1866 Neslitt, mean to go further than to decide that a Consignee has a general lien ?] West India Estates are sui generis, one year's neglect to cultivate might render the estate wholly unproductive and value- less. That case was followed by Sayers v. Wiiitfield (1) ; Simond v. Hibbert (2) ; Farquharson v. Balfour (3) ; Shaw v. Simpson (4) ; CHAMBERS Morrison v. Morrison (5), which was carried to the Court of DAVIDSOX. Appeal, and was heard by the Lords Justices, but the judgment of Vice-Chancellor Stuart was sustained (6) ; then there are the observations of Lord St. Leonards in Be Tharp (7), where that learned Judge likens the principle upon which the title of Consignees has been supported to the practice acted upon in Ireland in regard to fines paid upon renewable leaseholds. In Fraser v. Burgess (8), all the authorities are collected, and the whole question of the general lien of a Consignee discussed and considered by this Court. The Privy Council had previously de- clared, in Miles v. Atherton (9), the lien of a Trustee under a Will, for supplies to a plantation, in preference to a Mortgagee's claim. All principles of Equity combine to uphold the lien we contend for ; the Estate becomes valueless if the supplies cease, like a ship requiring necessary repairs, where the last Bottomry Bond has preference, and it has been held that the hypothecation of a ship cannot deprive the seaman of his right to wages: The Sydney Cove (10). So in the case of Mortgages on policies of Insurance where the premiums have been paid by the second Mortgagee. The decisions in the Court of the Commissioners of the West India Incumbered Estates have been uniformly in favour of the lien of the Consignee: Greathead's Case (11); Harriott's Case (12) ; MacDoweffs Case (13). Then the question is, whether the rights of the Appellant as a Merchant and Consignee, either as regarded past or future advances, were limited or in any manner restricted by the consignment deed of the 15th of March, 1860. We contend (1) 1 Knapp's P. C. Cases, 148. (2) 1 Russ. & My. 719. (3) 8 Sim. 210. (4) 1 Y. & C. N. R. 732. (5) 2 Sin. & Giff. 564. (6) 7 De G. M. & G. 214. (7) 2 Sm. & Giff. 578-9. (8) 13 Moore's P. C. Cases, 314. (9) 3 Burge's Comm. on Col. & For. Law, p. 350. (10) 2 Dods. 13. (11) Cust's West Ind. Incum. Estate Acts, p. 219 [2nd ed.] (12) Ibid. 271. (13) Cust's West Ind, Incum, Estate Acts, p. 300 [2nd ed] ... , j CASES IN THE PRIVY COUNCIL. [L. R. j. a that hi* rights as Consignee were paramount to his interest as 1866 Mortgagee, that they cxt. n J over all tho estates in support /. r^ijan'9 f *hksh he made consignments, though he is restricted as to &TAT*. hjg mortgage rights to the estate specifically named as his seen- rit y. His rights under the consignment deed were, as regarded the Mortgagees, necessarily subject to their prior tith- ;, .-1 ii.t.-rest; and the expressions in the deed of what was imj-li'--! if expressed therein could hare no effect >n his lien as a Consignee; the prior Mortgagees must be held to have, at least tacitly, con- sented to the arrangement for consigning the produce of estates in Mortgage, they might have interposed at any time to stop the supplies, but being no parties to the consignment deed, were not affected by it, and were not entitled to take any bei. under it. Then again, the discretion given by the deed as to s ing out supplies, was nothing more than the arrangement \\hich is incident to the ordinary course of dealing between Consignee and Planter, and could not prejudice the Appellant's lien for such I plies as he might furnish, or for such drafts as he might ac< Sir R. Palmer, Q.C., and Mr. W. W. Maclceqon, appeared for the Respondents, but were not called upon. LORD WESTBURY : Their Lordships are of opinion that in this case there are special circumstances in the relation existing between Mr. Chambers. Appellant, and the proprietors of the West India plantations, upon which they propose to rest their judgment, and which r. 1. them from the necessity of considering the important propositions of law which have been adverted to in the able argument at the Bar. The ordinary mercantile character and position of a Consignee of a West Indian plantation are well known. The custom of the Mercantile world is to select as Consignee, a Merchant resitting in this Country, to whom the whole produce of the plantations is con- signed, and who, in return for that produce, accepts Bills drawn upon him by the proprietor or manager in the WetA Indies for Island contingencies; and who, according to the orders of the manager or proprietor, purchases the supplies needed for the estate, and sends them over to the Island. VOL. L] CASES IN THE PRIVY COUNCIL. 305 There is no necessity in a case of this kind that there should be J - C. any contract for the purpose of determining the right of the Con- 1866 signee. The right of the Consignee, as it is supposed to be es- In re LEITH'S tablished by decisions, giving him a lien on the plantation in |f^r respect of the balance due to him, is an exception to the general CHAMBERS rule which applies to Principal and Agent. DAVIDSON But lien is not the result of an express contract ; it is given by implication of law. If, therefore, a mercantile relation, which might involve a lien, is created by a written contract, and security given for the result of the dealings in that relation, the express stipulation and agreement of the parties for security exclude lien, and limits their rights by the extent of the express contract that they have made. Expressum facit cessare taciturn. If a Consig- nee takes an express security, it excludes general lien. In the present case, the question is, whether Mr. Chambers can be regarded as the Consignee of these plantations in the ordinary sense, or whether he is a Mortgagee with the appointment of Receiver as part of his security. He refers his appointment as Con- signee to a particular Indenture, and we have to consider, there- fore, whether that Indenture does not define the rights and interests that he shall have in respect of his dealings with this estate. The deed is dated the 15th of March, 1860. It is made between Messrs. Leith, the proprietors of the plantations, or of the equity of redemption of those plantations, on the one hand, and Mr. Cham- bers on the other. The state of circumstances existing at that time between Mr. CJiambers and the Leiths, which are set forth in the recitals of the deed, may be shortly stated. In the first place, Messrs. Leith, in the month of January, 1860, had mortgaged three plantations to Mr. Chambers, plantations which are none of them included in the Mortgage of the present Respondents. This Mortgage was to secure the existing debt, and all future advances to be made by Chambers, not exceeding the sum of 2,500. It also appears that there was another Mortgage deed made by the Leiths to Chambers, dated on a later day of the same month of January, 1860, by which a certain other property, not included in the Mortgage of the Respondents, is mortgaged by the Leiths to CJiambers for the purpose of securing a further debt and advance, not exceeding in the whole 800. 306 CASES IN THE PRIVY COUNCIL. [L. B. The deed of the 15th of March, I860, which is relied on as the MM appointment of Consignee, goes on to recite that the LeitJi* were / rJTwTi entitled to other plantations subject to certain Mortgages or charge* ^** affecting the same. And then it recites that, in consideration of WHIM Chamber* having forborne his debt then due to him from the DATUM*. Lcith*, and having postponed for a long time the period of pay- ment, the Letths had agreed, so long only as possession should nt be adversely taken by the parties holding the Mortgages charges previously referred to, to consign to Chambers not leas than two-thirds of the produce of these additional plantations. The state of things, therefore, is shortly this : Chamber*, tho Mortgagee of certain estates, dissatisfied with the security, stipu- lates with the Leiihs that he shall have a further security, in the shape of an engagement to consign a certain portion of the produce of other plantations ; but inasmuch as those other plantations were themselves included in other Mortgages, this stipulation that Cham- bers should have the benefit of the consignment of a certain portion of their profits is made expressly subject to the rights and interests of those other Mortgagees. The deed then proceeds to contain covenants on the part of tho LeitJis, by which they engage to consign to Chambers certain por tions of the proceeds of these other plantations, in order that the amount of the proceeds so consigned may be applied by Chambers in aid of his already existing securities, and in part payment of the interest that, from time to time, should become due to him, and in part payment also of the interest of the existing debt ^ ith respect to the supplies, Chambers covenants in a remarkable manner. His engagement is, that he will make shipments, that he will send out all things necessary for the plantations, and pay the sums of money for which Bills might be drawn upon him, but so long only as the shipments of each year shall respectively exceed the amount of the expenses of the same year. The course of dealing, therefore, is here clearly defined. The Leiihs had no right to expect from the alleged Consignee any sup plies or any payment of Bills for Island contingencies, unless they shipped to him every year a sufficient amount to cover that expen- diture. VOL. L] CASES IN THE PRIVY COUNCIL. 307 It has been urged strongly that it must be considered that the J. C. Mortgagees assented to what was going on between Chambers and 1866 the Leiths. Their assent, of course, would be of no avail unless j n re LEAH'S they had information of the true state of the dealings. Suppose ATE> the Mortgagees, the present Respondents, to have been aware of CHAMBERS this deed, the nature of which we have been stating, they would- be DAVIDSON. warranted in treating it as a supplemental and additional security taken by Chambers in aid of his existing Mortgage. They would be warranted in assuming that Chambers intended to abide by the stipulations of the deed, and not to make advances unless he had in hand, or was about to have in hand, produce of the estate suffi- cient to cover those advances. This, therefore, is an instrument that shews clearly the nature of the engagement between Chambers and the proprietor of the plan- tations. As we have already observed, he was dissatisfied with his security, and he bargained for the receivership of a considerable portion of other and additional produce, subject, however, to the rights of the persons entitled to Mortgages on that property ; he stipulates for this addition by way of aid to his existing security, and the rights that he has are the rights given to him by this contract. The claim that he now makes is a claim which, depart- ing from the limited nature of this security, he desires to substitute for it the lien of a general Consignee who has k dealt with the entire proceeds of the estate according to mercantile usage, and has a balance due to him, ; Our conclusion may be expressed in two results : one, that this is not a case of lien, but an express and definite contract, and that the limits and nature of that contract would be exceeded and put an end to, if we allowed this claim for a general lien. The second is, that Mr. Chambers was not in the ordinary rela- tion of Consignee. He was here dealing with the proprietors of the plantation in the character of Mortgagee, with the stipulations of a mortgage, and it was not the object or effect of the deed to create between him and the proprietors of the plantation the ordi- nary relation of Consignee and planter. On these grounds, therefore, without adverting further to the argument upon the law applicable to Consignees, and without com- mitting this Tribunal to any opinion whatever upon the general IN Tin: ri:ivY cnrxcn, [L.R. tions that hare been argued, we decide that there was no rela- that warrants the claim of lien by Mr. Chamber* as Consignee, decide that his claim is limited to his express seen contract, and that the claim ho now advances is inconsistent with the nature of that security. Their Lordships will, therefore, humbly report to Her Majesty, as their opinion, that the decision of the Commissioner of the We$t India Encumbered Estates Court ought to be affirmed, and appeal dismissed with costs. Solicitors for the Appellant : Boys & Tweedies. Solicitors for the Respondents : Kingsford & Dorman. JO* In re MALLETS PATENT. 1 -X ***** Letters Patent Exclusive License Prolongation of term upon condition of No*. 27. granting License* to the public similar to one already granted. A Patentee, who was not a Manufacturer, granted a License to a manu- facturing firm to manufacture the patented article, which, by agreement between them, was of an almost exclusive character. In granting a pro- longation of the term of the Letters Patent, the new Letters Patent were directed to be made upon condition that Licenses should be granted by the Patentee to the Public upon terms similar to the one already granted. 1 HIS was an application for the extension of Letters Patent granted on the 28th of October, 1852, for " Improvements in Fire- proof and other Buildings and structures." The invention, as described in the specification, related to the construction of fire-proof and other buildings and structures, or parts thereof, by the application, in manner therein described, of plates of iron or other suitable material, bent or otherwise figured into a peculiar convex and concave form, denominated " buckled plates." The petition set forth the nature and value of the invention, and the difficulties encountered by the Petitioner in bringing the same into public notice, and stated that one of the Present : THB LORD Jusnci TURSKB, SIB JAKES WILLIAM COLVILE, and Son EDWAXD_VACGHAX WILLIAMS. VOL. L] CASES IN THE PKIVY COUNCIL. 30 great difficulties by which lie was met, and which prevented the J. c. progress of his invention, was, that he was not himself a Manu- 1866 V^v*** facturer, nor possessed of capital, nor in a position to start a nianu- in re factory of buckled plates himself; the dies and other plant and tools PATENT." necessary for their manufacture being very expensive, that parties desirous of employing his buckled plates for small or moderate- sized structures found they could not procure the plates, often needed of particular sizes, unless they went to the expense them- selves of making the necessary tools, and the cost of these on small quantities of plates was prohibitory. That consequently the demand was limited to cases only where a very large quantity was required for one work, as in the case of the new Westminster Bridge, where Messrs. Cochrane & Co. made all the necessary dies and tools at a very serious outlay, which were used to prepare the buckled plates, the total weight of which was about 300 tons. That to remedy this was found very difficult, as it was very difficult to induce any Ironmaster or Manufacturer to undertake to be at the expense of preparing dies and other tools to prepare a small order for plates to a special size, the cost of which could not be defrayed by that k one order, on the chance that other and future orders might be ob- tained which would defray the outlay ; and that it was not until late in the year 1861 that the Petitioner was able to close an agreement with Mr. David Jones, of Herbert's Park Iron Works, near Bilston, Staffordshire, who was largely engaged in rolling of iron sheets and plates, by which he undertook, upon certain terms, to make any required sizes of dies, and to execute all such orders for buckled plates as he might be enabled to obtain himself, or which should be transmitted to him by the Petitioner. That after this agreement was entered into, the Eailway Bridge across the Tliames at Putney was begun, and the Petitioner was induced to undertake to supply directly the Contractors for that Bridge with the large quantities which cover or floor it ; that these plates were made by Mr. David Jones to the Petitioner's order, and delivered upon the works ; but the contractors failed, and the Petitioner lost thereby not only his entire royalty, but the total value of the plates, for which he was not paid, and for which he had to pay his maker, Mr. David Jones. That the career of successful introduc- tion and increasing employment of buckled plates, in fact, only CASES IK THE PRIVY COUNCIL. [L. J. C. dated from the period of the completion and opening to the IMS of the Wedmiiuter New Bridge, and the result to tin 1 /T^ had been, on the whoK, that until the last four years his patent had been almost wholly unproductive, and he found that just at the time when the patent was about to expire, the real and true value of his invention was getting well understood, and its use established and extending; and under these circumstances, and as the total profits which the Petitioner had as yet derived from an invention that had proved of great public and private value importance were wholly inadequate to the merits of his invent he prayed for a prolongation of the term of the Letters Patent for a further term of fourteen years. The Petitioner and other scientific witnesses were examined, who ( Kposed to the great value of the invention, and to the fact that it was becoming generally used in Government works and public Bridges. It also appeared that, by the agreement made by the titioner with Jones, he had granted him the almost exclusive license to manufacture the plates, the Petitioner only reserving particular contracts of his own. It further appeared from the accounts of the patent that the Patentee had received from the working of the patent the sum of 5,519. 19*. 4d., from which sum he debited himself with the loss, first, of a sum of 603. 14s. 10d., for buckled plates supplied by him to Contractors named Cdveri & Co., who failed, and the amount was lost ; and secondly, with the sum of 746. 15., the profits returned by the account furnished by Jones, the Licensee, for working the invention at Is. per ton. Mr. Grove, Q.C., and Mr. Lawson, for the Petitioner : Urged, that there had not been an adequate remuneration for a valuable public invention which was now coming into use, and that an extension of the term of the Letters Patent would enable him to reap the just reward of his invention. The Attorney-General (Sir John Holt, Q.C.), and J&i.Eannen, for the Crown : Submitted, first, whether the Petitioner had not been amply rewarded ; and, secondly, with respect to the accounts, objected to YOL. I.] CASES IN THE PRIVY COUNCIL. the items of 603 and 746, the amount of the account furnished j. o. by Jones of the profit from working the License, observing that 1866 the former item should be credited, and not debited, in the j nre account, and that as the accounts were not satisfactory an exten- ^^ sion ought not to be granted : Trotman's. Patent (1), THE LORD JUSTICE TURNER : Their Lordships have considered this case ; they are fully satis- fied with the value of this invention, and if, on the one side, the public would be likely to suffer from the enlargement of the term of the patent, on the other side, their Lordships are perfectly satis- fied that the public have been great gainers by the saving which must necessarily have accrued from the adoption of the patent. Their Lordships, therefore, are of opinion, that it would be their duty to recommend to Her Majesty to grant some enlargement of the patent, provided the Patentee has not been sufficiently remunerated. Now, without entering into the particular items which have been the subject of question, either the 603, or the 746, which are the only disputed items open to any real question; taking these items to be in favour of the public, and against the Patentee, their Lordships find that the Patentee has only received about 4,000 in respect of the patent. Spreading over the twelve years, there has been a profit of somewhat about 280 a year to the Patentee, and that without any charge being made against the public in respect of the attention and diligence which the Patentee has given to the introduction of this great improvement. Their Lordships, therefore, do not think they would do wrong in extend- ing the patent for the term of four years. They will, therefore, recommend Her Majesty to grant an extension of four years. But their Lordships observe, from the evidence before them, there is an understanding apparently between Mr. Jones and the Patentee, that the License of Mr. Jones, though not made an exclusive License, should be so considered. Their Lordships think that the extension of the terms of the Letters Patent ought to be upon the condition of granting Licenses to all persons who may be desirous of having them upon the same terms as Mr. David Jones's License. Therefore, their Lordships will clothe the Order for the extension (1) Law Ecp. 1 P. C. 118. CASES IN THE PRIVY COUN* ;i r. J. a of the term of the Letters Patent, with the condition ili.it th.- is,. Patentee shall grant Licenses to all persons desirous of haying the " same, upon terms similar to use already granted. Solicitor for the Petitioner : John Henry Johnson. Solicitors to the Treasury : for the Crown. J a* THE REV EDWARD PARKER, CLERK . APPELL > ] s.:,; AND FELIX LEACH ...... RE< ON APPEAL FROM Till! < IIAXCERY CX)URT OP Suit far perturbation of pew Church repaired under a Faculty fie-coiigecration not necemtryPlea to jurisdiction Title to pew in chancel Permissive occupation. L., the tenant and occupier of the Manor-house in the parish of IP., instituted a suit in the Chancery Court of York against P., the Incum- bent and perpetual Curate, for perturbation of a pew, held by L. as appur- tenant to the Manor House, and occupied by him therewith for nearly forty yean. P., the incumbent, admitted the destruction of the pew by his orders and direction, but pleaded first, to the jurisdiction of the Court, on the ground that the Church was not in law a Church, never baring been re-conse- crated since its general repair in 1825 ; and, secondly, that the permissive occupation of the pew was not sufficient to entitle L. to sue : ////, by the Judicial Committee, First, that, it appearing from the evidence, that the Church of TT. having been repaired and rebuilt under a Faculty, upon its old foundation, the Tower and eastern wall and windows never having been removed, and some of the Offices of the Church performed during the repairs, it had never ceased to be a Parish Church so as to require re-consecration, but remained subject to the authority of the Diocesan ; and that the judgment of the Court below over- ruling the protest to the jurisdiction was right : and, Secondly, that as a pew being in the Chancel may legally belong to a party in respect of the ownership of a house, the title by occupation of such a pew wa rightly pleaded, and, if proved, would entitle L. to maintain his suit. fimWe, If a Church be rebuilt on the old lines of foundation, including within it the same originally consecrated ground and no more, the Ecclesias- tical law does not require that such. Church should be re-consecrated. 1 HIS was a cause of perturbation of seat or pew depending in the Chancery Court of York, promoted by the Respondent, Felix Present : LORD WESTBTOT, SIB JAMES WILLIAM COLVILE, and Sre EDWARD VAUGKAX WILLIAMS, VOL. I.] CASES IN THE PEIVY COUNCIL. 313 Leach, of Brungerley, in the Township of Waddington, in the J. 0. County of York, against the Appellant, the Kev. JZdward Parker, 1866 Clerk, the Incumbent of the perpetual -curacy and parochial PARKER Chapelry of Waddington, and came before the Chancery Court 1^^, of York by Letters of Request. The seat in question was appurtenant to the Mansion-house of Waddon Hall, in the Township of Waddington, which be- longed to the Honourable Isabella Ramsden, Widow, the Lady of the Manor of Waddington. The Respondent claimed the right to the use of the pew by permission of Mrs. Ramsden, as her tenant. He had occupied the pew in question under such permission from the restoration of the Church, in the year 1825, to the time when the pew was pulled down by the Appel- lant's directions, about the latter end of the year 1863, having been an inhabitant of the Township of Waddington during the whole of that period. The Appellant, who for three years previous to the proceedings in the cause had been the Incumbent of the Church, in the month of December, 1863, without the authority of the Churchwardens, pulled down and entirely destroyed the pew which the Respondent had been in the habit of using. The Respondent then brought a suit for perturbation of pew in the Diocesan Court of Ripon, which was removed by Letters of Request to the Chancery Court of York. The admission of the libel of the Respondent was opposed by the Appellant, on the ground that, in or about the year 1825, the Church of Waddington was pulled down, the foundations thereof removed, and the altar taken away, since which time there had been no consecration of the Church, and that by reason of such want of consecration the Court had no jurisdiction with respect to the Church; and, further, that it appeared from the libel of the Respondent that the pew in question belonged to the Honourable Isabella Ramsden, and that the Respondent had no right to it whatever. The Respondent denied this, and alleged that the Church of Waddington was a consecrated building, dedicated to the service of Almighty God, in which the services of the Church were and still are duly performed, but that the date of such consecration IIE PBIVT COUNCIL. [L. B. j.O. was unknown to him. That at tin- tim<> th Church was re- ISM paired, in 1825, the wall on the east end of the Church was '~ n taken down except so far as was necessary to attach it to the tide walla, which were then rebuilt under the authority of a Faculty granted on the 21st of April, 1825. That the Chancel of the Church at tin- tiino of tlu> reparation was, and still is, formed by two inner or wing walls, which project at right angles from the east wall of the centre window, and oa the north of such inner or wing walls there were, and still are, some family monuments of the Patrons of the living, and on the south of such inn-T \vnll there was, and there still is, a monument to the former owners of the Waddow estate. That neither of the inner or v walls were removed, disturbed, or interfered with during the repa- ration of the Church, neither were the monuments removo-1 or interfered with. That at the time of the reparation there were, and still are, three windows at the east end of the Church, one being a large centre window with stained glass figures, which formed the mid-chancel window, and the other two smaller windows, of uhich one was in the vestry and the other in the Waddow pew, which windows were in the same position prior to the reparation as they then were, and were not at such time altered or inter- fered with in any manner. That all the materials of the two old side walls, being on the north and south of the Church, were used in the re-erection of the side walls. That at the time of the reparation no alteration was made in the Chancels of the Church, beyond raising the walls a few feet in height. That the floors of the Chancels were not altered. That the space between the two wing walls was always covered over, even before the reparations, by a flat ceiling composed of lath and plaster, which remained until some time after a new roof had been put on. That the Altar or Communion table and rails surrounding it were not interfered \\ith or removed at the time of the reparation, although after tho Church had been repaired the Communion rails, which previously formed three sides of a square, were removed, and the same Com- munion rails were afterwards placed across the Chancel from one inner wall to the other inner wall, as they then remained. That the pews in the Chancel known as Mr. Felix Leach's pew (the Respondent's) the Waddow pews, Mr. Taylor's pew, the Browsholme VOL. L] CASES IN THE PRIVY COUNCIL. 315 pew, and the other pews in the Chancel, were not taken down or J. 0. interfered with during the reparations. That at such time the 1866 steeple of the Church was not disturbed, and that the founda- PARKER tions for the present north and south side walls were placed pre- L E A' CH< cisely on the site or situation of the old walls, and that the Church was no wider or narrower than it was previous to the reparation aforesaid ; and the Kespondent alleged, that it was not needful that the Church of Waddington should be re-consecrated in conse- quence of the reparations made therein as aforesaid ; and he prayed that the Court would reject the Appellant's plea, and pro- nounce for its jurisdiction in the cause with respect to the Church, and condemn the Appellant in costs. These allegations the Appellant denied, whereupon the Kespon- dent prayed for a Monition against the Appellant and the Church- wardens of the Parish of Waddington, to bring in the specification and estimate for the works contracted for and agreed to by the Vestry at Waddington in the year 1824. Affidavits were filed by the Appellant in support of the aver- ments contained in his protest. The Respondent also filed Affi- davits in answer to the Appellant's averments. The questions thus raised were argued by Counsel, when the Judge of the Chan- cery Court of York (Granville Earcourt Vernon, Esq.) overruled the protest against the jurisdiction, and decided that no re-conse- cration was necessary. Against this judgment the present appeal was interposed. Mr. A. J. Stephens, Q.C., and Mr. R. A. Bayford, for the Ap- pellant : This is primarily a question of jurisdiction. It is pleaded and proved that in the year 1824, the Parish Church of Waddington was pulled down, the foundations removed, and the altar taken away ; since which there has been no consecration of the Church, and in con- sequence of such want of consecration, the Chancery Court of York had no jurisdiction with respect to the Church. If that objection be well founded, the other point raised relative to the title to the pew in question will not arise, namely, whether it be in Mrs. Eamsden, the owner of the Mansion in respect of which the pew is claimed, or in the Respondent, Leach, who is only her tenant, and has no VOL. I. 3 2 B CASES IN THE PRIVY COUNCIL. [L. R. titlo himself to tho pew; uii-1, therel< to sustain a for perturbation will not arise. ;I 'k Chun-li U-injr a now buildi therefore, requiring re-con* In making tho repairs in 1825, it appears from t : there was : left of the ori^l i i "!' til-' "1-1 walls, which have been so added to or raised as entirely to de*t th< y of tho buiMing, and to render, therefore, reconse- cration necessary. In Battiscombe v. Eve (1), a re-consecnr was required, the whole Church, except one arrh, having been l>ulled down and rebuilt. So in Warner v. (rater (2), a Chun-li- rat ing the expense of the consecration of a Chi rebuilt under the Statute, 59 Geo. 3, c. 134, s. 40, was held valM, although no Faculty had been granted. It has been decided if a Church is entirely taken down and rebuilt re-consecr.r is necessary; Turner v. The Parishioners of Hanwell (3). Though there is no authorized form for the consecration or the re-conse- cration of a Church in our Book of Common Prayer, there is such in the Irish Book (Dublin 1>1.. 17'J.".). \\horo the following ser- Yices are to be found. First, there is " An Office to be used in the Kestauration of a Church," the Rubric of v.hirh is thus: Win TO the Fabrick of a Church is mine 1." The form for con- secration usually adopted is to be found in Burns' Eoclesiast Law, vol. i., tit. " Church," p. 327 [9th Ed.] ; but the special form, where the Church has been repaired, is only to be found in Irish Prayer Book, already cited, and we produce copies of two P.'eds of consecration, extracted from the Provincial Registry of Armagh ; one dated the 29th of September, 1863, of the Parish Church of Loughgifly, in the Diocese of Armagh, and tho other, dated the 1st of September, 1865, of the Church and Churchyard of Tuttaniskin, in the same Diocese ; the first of which recites that the Church of Lovghgifly " has recently been altered, improved, and enlarged, including in the said enlargements a new Chanc and the second, of the Church of TuUanisJcin, recites, that that arch "has recently been altered, improved, and enlarged." Theee precedents shew at once the practice, and the necessity for (1) 7 L. T. (N. S.) 697. (2) 2 Curt. 31-3 (3) 1 Notes of Cases, 368. VOL. I.] CASES IN THE PEIVY COUNCIL. 317 re-consecration where alterations and improvements have been J. 0. made, and a new Church is built on the same foundation. The 1866 Kubric for the " Kestauration," proceeds : " The Bishop, attended by P ARK EB his Clergy, shall enter into the Church-yard, and go in procession L * round about the Church new built, and recite alternately Psalm 74 ;" after which, in the service, follows the Lord's Prayer, then the Col- lect "For Direction and Success in all Undertakings," from the post Communion service, then a prayer taken from the 9th chap, of Ezra, 6th verse, and then the 144th Psalm, " After which " (the Eubric directs) "the Bishop, attended with the Clergy, shall go to the Font, and use the same Office as is appointed for the Consecration or Dedication of Churches ; and so to the end ; omitting the words (place or places), because the place was consecrated before, and so was the Cemetery, in other things proceed without change." There is also in the same Book "A Short Office for Expiation and Illustration of a Church Desecrated or Profan'd," that is by " Murther and Bloodshed, by Uncleanness, or any other sort of Prophanation." The old Ecclesiastical law in such a case required, if not a re-consecration, a reconciliation ; but where the fabric of the Church was destroyed, a re-consecration was necessary, as the new fabric of a Church is not the same Church. Gibson's Codex, p. 189, Tit. ix. c. 1, s. viii. Van Espen, Jus. Ecclesiasticum Univer- sum, Vol. I., Part II., Tit. I. ; Cap. iv., v., and vi. Secondly, as to the title to the pew. The Kespondent is but the tenant of the alleged owner, Mrs. Ramsden, he has clearly no right to the pew, his occupation being merely permissive and on suffer- ance ; and the libel does not disclose a sufficient cause of action, and is not, therefore, admissible. To give a title to this pew, there must either have been a Faculty granted to Mrs. Ramsden, or her pre- decessors, or a permissive occupation by her ; in either case, she alone is competent to institute such a suit as this. Co. Litt. Vol. I, B. 2, c. II., sec. 184, p. 122 a., 6 ; Woollocombe v. Ould- ridge (1) ; Byerley v. Windus (2) ; Clifford v. Wicks (3) ; Walter v. Gftwwwr(4) ; and the cases there referred to in the notes : Pettman v. Bridger (5). The Appellant, as incumbent of the Chapelry, (1) 3 Add. 1, 6. (3) 1 B. & Al. 498. (2) 5 B. & C. 1, 18. (4) 1 Hagg. Con. Rep. 314, 318. (5) 1 Phil. 316, 325. 3 2 B2 CASES IN TIN: PKIVY ( [1. had power to remove the pew: Jonet v. Ellis (1) ; Qrijffin v. Di>/h- 1866 toll PAXUB p r JDaan, Q.O., and Dr. Spinkt, for the Respond* -nt : There is no pretence for saying this is a new Church, n< ith< r not the eastern end of the Church were ev vod, and the new side walls were erected on the oil i-uirl itions. The repairs, moreover, were done under a Faculty. It is in evidence that the services of the Church \scn- ncvrr ntiivly suspended. Marriages were celebrate I. an 1 it appears from the Churchwarden's accounts, that the Holy Communion was administered, for there is a charge for th-- bn-aJ and win--. How, then, can it be con- tended that this is a new Church? In Co. II. Jn*t., Suit. Wett. 2nd, c. 5, p. 3G3 [Ed. 1571], it is stated that " wh.-n tin- <\\v - was whether it were Ecdesia aui CapeUa pertinens ad matricem Ecclesiam, the issue was, whether it had baptisterium et sepulturam ; for if it had the administration of the sacraments and si-pultun* it was in la\v judged a Church, and Lord Coke cites Ric. de Smithes Case, Trin. 20, Ed. L, and other cases. What condi; are the Parishioners of this Parish in, if the argument of the Appellant is well founded, and this Church has been no Church for the last forty years? Has the Reverend Incumbent reflected on the consequences if he were successful in his contention ? There is no service either in the Book of Common Prayer, or elsewhere, for the re-consecration of a Church repaired or restored, i Prelate frames, or may frame, his own form for consecration of a Church, and it is probable that, from general use, the one cited from the Irish Book of Common Prayer has become general in Ireland ; but there is no authority for its forming a part of the Book of Common Prayer, or for its general use. In the case of Warner v. Gaier(3), where the Church was rebuilt under the Statute, 59 Geo. 3, c, 134, Sir Herbert Jenner is represented as saying, that the Church could not be a Parish Church until it was consecrated. That is, however, but an obiter dictum, for the question of the neces- sity of consecration was not before the Court, and the Church, moreover, was altogether a new Church, which was not the case re. The case of Turner v. The Parishioners of EanweU (4), must (1)2Y.&J.265. (3) 2 Curt. 31.3. 33 L. J. (X.S.) Q. TJ. 29. (4) 1 Notes of Cases, 368. VOL. I.] CASES IN THE PRIVY COUNCIL. 319 be wrongly reported, the learned Judge of the Arches never could J. C. have said, as he is there represented, that if the altar had been ISGG taken down there must be a re-consecration. That has been PAHKEB done over and over again, and very recently in Westminster Abbey L E *' CU itself, without any such re-consecration being required. The case of Battisconibe v. Eve (1), so much relied on by the Appellant, is not an authority binding on this Court, it was a decision of the Chancellor of Rochester, in the Consistory Court of that Diocese, and though entitled to great weight from the learning and ability of the learned Judge, Dr. Robertson, who delivered it, is, we insist, not warranted by the authorities relied on, and not supported by any legal precedent. There is, moreover, this essential difference, that in that case there was no Faculty for the repairs or rebuilding of the Church. There cannot be a partial consecration of a Church, every portion of the Church must be included ; the Vestry as well as the body of the Church : Wilson v. M'Math (2). In the very same passage cited from Van Espen, Jus. Ecc., the question is asked, What if the altar is removed, does that require a re-consecration of the Church ? and the reply is The altar is made for the Church, and not the Church for the altar ; and, therefore, no fresh consecration is requisite. Even if the law were as reported in Turner v. The Parishioners of Han- well (3), here the Church would not require re-consecration, for neither the Tower nor the altar have been disturbed. The interference by the Incumbent with the pew, was wholly illegal, and unwarrantable ; the Churchwardens are the only per- sons having a legal right to alter or remove the pews, and they must act under the authority of the Ordinary : Pettman v. Bridger(4). The suit was properly instituted by the Eespon- dent, he had a possessory right in the pew : Stocks v. Sooth (5) ; and if any objection was intended to be made to his title to sue, it should have been taken on the admission of the libel ; it is too late now, even if tenable, which we submit it is not, LORD WESTBURY: The Appellant in this case is the perpetual Curate and Incumbent (1) 7 L, T. (N. S.) 697. (2) 3 Phil. 67. (3) 1 Notes of Cases, 368. (4) 1 Phil. 316, 323. (5) 1 T, R. 428. ;..,, CASES IN THE PRIVY COUNCIL. [L. B. of tie Parish Church of Waddingfon, in the Diocese of Ilipon i .viiico of York; tho Respondent an aged gentleman rTno w i t h i n the same Parish. in the Chancel of the Parish Church a pew, c! M * JM ^ing to tho Honourable Mrs. Ramsden, in reap- the owner of an an ssuage within tho Parish. Mrs. Ranuden has j: ; use and permission to the Respondent to occupy that pew, of which she i- tin- proprietor ; tho Respondent has had the use and enjoyment of it for nearly forty years. In the month of December, 1863, the Appellant, wit hont ih.-autho- rity of the Churchwardens, appears from lence to have gone to a Carpenter, an inhabitant of the Parish, to have brought him into the Chancel, and to have pulled down an-1 destroyed the pew which the Respondent had been in the haliit of This was followed by a suit for perturbation of the pew com- menced in the Diocesan Court, and removed by Letters of Request to the Chancery Court at Yo, To the libel of the Respondent, the Appellant pleaded th;it T waa no jurisdiction in the Archbishop of York, because the Chim-h was not, in law, a Church at all, never having been re-consecrated since its general repair or rebuilding in the year 1826. Now the Appellant has been himself for three years the Incum- bent of the Church ; Divine service has been celebrated there by him, and by his predecessors ; Baptisms have been performed there ; Marriages have "been solemnized there ; the Holy Communion has been administered in it for nearly forty years. It is a plea, there- fore, pregnant with tho most formidable consequences, if it be found to have any support in law. The points which have been argued may be thus arranged. It is contended by tho Appellant, as a general proposition, that if a Church be taken down and rebuilt, though it be rebuilt again upon the same foundations, the new edifice requires to be re-consecrated, and until it be re-consecrated, the Appellant contends, that it can have none of the character [of a Church ; that such an edifice, in point of law, is to be regarded no more than if it were any common bniMinjr within the parish. :i is the legal proposition which is first put forward on the part of the Appellant. VOL. L] CASES IN THE PKIVY COUNCIL. 321 The second proposition is, that the Church in question, viz., this . J. C. Parish Church of Waddington, had been rebuilt in such a manner 1866 as to bring it within the scope of the first proposition which he lays PARKER down, viz., that it was wholly rebuilt, and therefore required re- LEACH consecration. The third ground that has been maintained by the Appellant is a technical one, relating to the form in which the title to the enjoy- ment of this pew was laid by the Respondent in his libel. To prove the first proposition, viz., that a Church rebuilt upon the old foundations, if it be entirely or substantially rebuilt, requires re-consecration, very little authority has been produced. No de- cided case has been cited to their Lordships, with the exception, perhaps, of a case noted in Burns Ecclesiastical Law (vol. i. p. 336), in which it is said that the Church of Soutlimalling having been polluted and pulled down, was new built, and then used for Divine offices without new consecration. Archbishop Abbot interdicted the Minister, Churchwardens, and Parishioners from the entrance of the Church until the Church and the Churchyard thereof should be again consecrated. The particulars of the case are not given. It is a citation from Gibson's Codex, p. 190, and it can hardly be regarded as any- thing like a solemn legal decision on the point. Two things, however, appear to have occurred, viz., that the original Church was polluted in some manner not described, and probably on that ground was ordered to be pulled down, and then there was a new fabric which was considered by the Archbishop as requiring con- secration. The other cases cited to their Lordships contain mere dicta of different Judges, and do not involve the point now in ques- tion. The case most relied on is one which occurred in the Diocese of Rochester', the case of Battiscombe v. Eve (1), in which the Chancellor, Dr. Robertson, cited a Treatise " PupiHa Oculi" (John de Burgh) pars. ix. cap. 1, " De Consecratione Ecclesite, vel altaris, et de recon- aliatione ejusdem," fo. 146, F., of very early date, written anterior to the Reformation, in which the following expressions are used : " In tribus casibus debet Ecclesia dudum consecrata iterum con- (1) 7 L. T. (N. S.) 097. at m ran v < 01 M n Mmiri." After stating two instances wl-.i. -h do not bear on tho nn* i he proooedi: " Terlius at, ti Eccletia j'itn-1ifna sit disrupia vel etiam em Mo rejxirata, five e eitdem lapidibus rive ex O/IM." is to say, wh 'ir.-h baa been destroyed from tho foun- 11 stone, "funditus disrupta" or where the Church has been "aatoto reparaia" restored "ex toto," completely from tho t.-j. to ''itt'Mu in every part. ' unnecessary in the present case that their Lordships eli give any judicial opinion upon this general quest io: MODS that will presently appear; but their Lordships are particularly desirous that it should be understood, that they do not mean by any observation to give authority to the position, that if a Church lw rebuilt upon the old lines of foundation, including within it the same originally consecrated ground, and no more, such Church does need re-consecration. We give no judicial opinion upon that. \\ '< desire, however, to have it clearly understood that we do u- any means intend to recognize or to sanction such a doctrii. . in our opinion, a just view of the law. J>ut that point will not be involved in our present judicial determination. The judicial ground for the determination we arrive at rests upon the vi ;ivc taken of the second question; the second ques- tion being an inquiry whether in this particular case the Church was wholly rebuilt, so as to come within the meaning of a Church ex ido reparafa, assuming for the moment that such a new building might require re-consecration. Now, the history of the proceedings is this : A Faculty was applied for and granted for the repair of the Church. The Church consisted of a nave, two aisles, the Chancel, and Tower. It would seem that it had been ascertained that the walls of the body of the Church, including the nave and aisles, required to be completely taken down and renewed. The Tower did not stand in need of reparation, but all the walls, running from tho Tower north and south to the east, required entire rebuilding. The eastern wall did not stand in need of being rebuilt Accordingly the Faculty directed the repair of the Church to be made in conformity with that necessity. The Tower, therefore, remained untouched ; the eastern wall, in which were three windows a large window and two smaller windows, one on either side also remained VOL. L] CASES IN THE PKIVY COUNCIL. 323 untouched, except so far as it was necessary to pull down a part at J. C. either end of the eastern wall, for the purpose of tying on to it the 1866 new north and south walls that were erected. PABKEB The whole of the interior of the nave or body of the Church LEA' CH appears to have been altered ; and, whereas, in former times there was an arched doorway communicating between the nave and the Tower, that doorway was stopped up ; a new porch or entrance to the body of the Church was erected, the north and south walls were erected, and the interior of the nave of the Church was renewed. , With reference to the Chancel there is some conflicting evidence, but the witnesses agree that the Communion Table, within the Chancel, had on either side of it, north and south, two low walls, forming, as it were an interior Chancel. These low walls were not touched, so far as removal was concerned, but they appear to have been added to and carried to a greater height. The Communion Table being very old was replaced by a new one. It is said that some of the pews then existing in the Chancel were taken down and new ones erected, but upon the whole of the evidence the conclusion is, that the pews in- the Chancel were allowed to remain. There may have been in some instances new woodwork, but substantially the Chancel remained, save so far as we have mentioned, unaltered. Now, it must be observed that this was done under a Faculty granted by the Diocesan; it was done, therefore, by virtue of Ecclesiastical authority. It is extremely difficult to understand how that which was done by virtue of Ecclesiastical authority could have the effect of rendering the thing itself, when done, exempt from that authority which was necessary for the doing of it. We put it, therefore, to the learned Counsel whether there was any instance of repairs or rebuilding done under a Faculty which had been held to require re-consecration ? No suclx case has been pro- duced to us. That case which occurred in the Diocese of Rochester appears to have proceeded wholly upon the ground that there the Church had been repaired or rebuilt without a Faculty; and having therefore been called into being not under Ecclesiastical authority, the learned Judge thought, rightly or wrongly, that it required re-consecration or re-dedication (the two words legally meaning the same thing), in order to give it the character of an eccle- CASES IN THE PRIVY COUNCIL. [L. R. e, to as to be subject to tho j >n of the i- -ocean. It is a decision which, so far as it goes, would seem to p7ttn carry with it. by implication, tho conclusion, that if tho repara- tion, however extent lit be, liad been don. under a ! it u!d have precluded the allegation that it was a ! which remained free from Ecclesiastical authority until it was re-consecrated. 80 far, therefore, as that decision goes, it seems to preset expression of opinion that what' -lone under the ! l> ing done un -iastieal authority, th" build ing in respect of which it was so dono must bo considered as remaining subject to ! ! authority. that is not by any means tho whole of the case, fur the Kespondent avers that when the portions of the Church w! were rebuilt were pulled down, and while the edifice was there: no longer fit to receive the Parishioners for the purposes of public worship, Marriages were still performed in tho Church, an- 1 th-- Sacrament of Baptism continued to be administered. Marriages we iv celebrated in the Tower whilst the Church was in the act of being rebuilt; Marriages were also celebrated within its incipient walls. At no time, therefore, has there been any disuse r of th>- edifice as a Church. It has been treated as the Parish Church, and used, even during the ve ,.f rebuilding, fr those ceremonies which could only be performed within th Church. That which remained, therefore, the Tower and ot portions of the building, still retained their Ecclesiastical character; and its user as a Parish Church has never been abandoned. It is impossible to suppose that under such circumstance> building can have become desecrated, and so stripped of its original sacred character as to require that it should be again consecrated. A question was put several times to tho learned Counsel, by whom we have been much assisted, and who would have been able to answ uestion if there are any Counsel able to answer it, wh. tlier pulling down the nave would involve a desecration of Tower, so that it also must be re-consecrated. Whether the same doctrine would apply to the eastern wall and the Chane Whether those Marriages and Baptisms were all illegally per- formed which wore performed when a certain part of the Church VOL. I.] CASES IN THE PEIVY COUNCIL. 325 was on. the ground, and while the act of rebuilding was going J. c. on ? . 1866 It was impossible that the answer to those questions could p ARKER be either that these things were illegally done, or that the Tower " and the other buildings had lost their original sacred character acquired by virtue of the prior consecration. Another question was put to the learned Counsel: whether there was any form given, or whether any instance could be cited, of a partial consecration of a Church, i.e., of a portion of the Church ? Because the rule being that what has been once consecrated shall not be re-consecrated, the consecration in the present case must be limited entirely to the body of the ^Church, excluding the Chancel and the Tower. That would be an anomaly of which no example or precedent has been mentioned. Reference was made to a case which occurred before Dr. Luslnng- ton in the Court of Arches the case of Turner v. The Parishioners of Hanwell (1), and words were relied upon as seeming to intimate the opinion of the Judge that in that case the Church had lost en- tirely its sacred character, and would require to be re-consecrated. The note of this case, which is a very short one, must be accu- rately looked at for the purpose of seeing what was the nature of the application, and the question which the Court was called upon to decide. The application was by a Parishioner for a Faculty to make a burial-place for himself and his family in the Parish Church, to the exclusion of others. At the time of the applica- tion, the note goes on to say, there was no Parish Church, the old Church having been almost entirely taken down, and a new one in the course of rebuilding. Now, an application for. a Faculty to make a burial-place is one, the propriety of which it would be impossible to determine until it was ascertained what was the area of the Church, and in what manner the interior of the Church would have to be arranged and disposed of. Dr. Lusliingtorfs answer to the application was this : " I cannot grant such a Faculty. How can I grant a Faculty for a Church not built ?" And the answer appears to us to have ^been a very con- clusive one to that application. (1) 1 Notes of Cases, 3fi8. ; CASES IN THE PRIVY OOUNt 1 1 [L. B. j. c. Then woidi are attriliut learned Judge whi 1M6 hardly have been used by him as they are here reporte I ; ! were M IWC ^' ^ e y were ^ 0r rfW^i not necessary for th- before him. He is reported to have said, " If the altar has been taken down, there most be a re-consecration, as my j tton depends entirely ration* loci" If the learn i .!unncd, in which, therefore, all IM6 that hat been done wouM, in ull jimh.il.i!. ^ally good for PAHUOI nothing; not withstand .uccessive Diocesans, notwithstand- ing that all anterior Incumbents, notwithstanding that the whole of >h loners have been led to believe, and have believed, that the Church no del no re-consecration; tl. it was repaired it could be reoccupied and restored to its ori- rposes without the necessity of tl. happily able to arrive, without difficulty, at the conclusion that there was no need of such a ceremony. A Ye rcjrr. -t that such a question should have been raised by the Appellant, and wo shall advise Her Majesty to reject his appeal, and condemn him in costs. Proctors for the Appellant : John & J. H. Bayford. Proctors for the Respondent : Deacon, Son, & Rogers. J.c. THOMAS \\ILLIAM DOYLE, AND OTHERS . APPELLANTS; AND No,.*, 9. GEORGE CHARLES FALCONER .... KESPOXM ON APPEAL FROM THE COURT OF COMMON PLEAS OF DOMINICA. Dominica, Initiative Assembly of Power of punishing contempt Commitment, Form of warrant Action against Speaker and Members for false imprison- ment Pleas-^-Justification. The Legislative Assembly of Dominica does not possess the power of punish- ing a contempt, though committed in its presence and by one of its Members ; such authority does not belong to a Colonial House of Assembly by analogy to the lex et consuetude Parliamenti, which is inherent in the two Houses of Parliament in the United Kingdom, or to a Court of Justice, which is a Court of Record : a Colonial House of Assembly having no judicial functions. Where, therefore, a Member of the Lower House of Assembly of Dominica, who had been taken into custody by the Serjeant-at-Arms, and committed to * Prttent . LORD WESTBCBT, SIB JAMES WILLIAM COLVILE, and SIB EDWABD VACGHAH WILLIAMS. VOL. L] CASES IN THE PEIVY COUNCIL. 329 the common gaol, by virtue of the Speaker's warrants, for a contempt committed J. C. in the face of the Assembly, brought an action for trespass and false imprison- i6G ment, and obtained damages : it was held by the Judicial Committee (affirm- ""^ ing the judgment of the Court of Common Pleas of the Island) on demurrer OTLK to pleas of justification, that the House of Assembly had no such power to FALCONER. commit and punish as had been assumed, and that the Speaker and Members were liable. The cases of Ridley v. Carson (1) and Fenton v. Hampton (2) decide con- clusively, that Legislative Assemblies in the British Colonies have, in the absence of express grant, no power to adjudicate upon, or punish for, con- tempts when committed beyond their walls. tiemble, The Speaker's warrants having been issued by virtue of an alleged authority which, if it existed, was a limited one, ought to have shewn, on the face of them, that the contempt was committed in the presence of the House, and so fell within the limits of the authority assumed. JL HIS was an appeal arising out of an action of trespass, for assault and imprisonment, brought by the Respondent, a Member of the House of Assembly of Dominica against the Appellant, the Speaker, and ten Members of the same House. The declaration contained three counts. The first for assaulting the Plaintiff, on the 28th of May, 1863, and seizing and laying hold of him, and forcing and compelling him to go through divers public streets to the common gaol, and there imprisoning him, without any probable cause, for three days; the second was for an assault and false imprisonment, without reasonable cause, for three days ; and the third, for a common assault. To this action the Defendants pleaded : First, the general issue to the whole declaration. Secondly, as to the first count, to the effect, that at the time mentioned in the declaration, the Defen- dant, Doyle, was Speaker, and the other Defendants, with the Plaintiff, were Members of the Lower House of Assembly of the Island. That on the day in question there was duly had and holden a meeting of the Lower House of Assembly, consisting of the Defendants, the Plaintiff, and a Mr. Dupigtny. That at such meeting the Plaintiff, having already spoken by way of objection to a motion, and amendment thereon made by other Members, proceeded to further debate on his objection, contrary to the established rules and practice of the House, whereupon he was called to order by the Speaker. That, nevertheless, the (1) 4 Moore's P. C. Cases, 63. (2) 11 Moore's P. C. Cases, 347. ;;::. CASKS IN THE PBIVY COUNCIL. fL liutiff persisted in his speech, ai> i- to the Speaker, which, pursuant to motion, were noted down as ^M tll< d*'' are y u to c*!! me * order? y.u m | .i.-.-t..-. t" t!.' Howe." 'Hi..t thez UJ..,M it WM r-->\\>-<\. (il 1'huutitY ha 1 been guilt \ a high 001 1 : tin- H-.ii>.-. anl that In- should bo held in such contempt until ho should have apologized. Tii.it there- upon the Defendant, Doyle, as Speaker, called upon tin- Plaintiff apologize, who refused to do so, stating that In- had - nothing requiring an apology, and continual to ad Iress the ll.u>e. That the Speaker again called on the Plaint itV apology, when the Plaintiff replied, " You may tell me that I mn in contempt one hundred times, if you like, but I shall speak. You may move it one hundred thousand times. I repeat \\h.it 1 have said. You are a disgrace to the House. You were expelled the House for robbery; the Minutes of 1845 can shew it" That the Lower House of Assembly thereupon resolved (Dupiyny dissentient), that the Plaintiff, a Member of the House, havi whilst addressing the House, been called to order by the Speaker and House, and he having then addressed to the Speaker the words, "You are a disgrace to this House," and the House of Assembly having called upon him to apologize, and he hav refused to do so, was held in contempt, and having, whilst so in con- tempt, interrupted and obstructed the business before the House, it was thereupon resolved, that the Plaintiff, for his disord- conduct and contempt of the House, be taken into the custody of the Serjeant-at-Arms, and that the Speaker do issue his warrant, committing the Plaintiff to the common gaol during the pleasure of the House. Whereupon the Defendant, Doyle, in pursuance of the resolutions and order aforesaid, and according to the law, custom, and practice theretofore used and practised by the House, and which did always of right belong to the House for the punishment of contempts, and for interruptions and obstructions to the business of the House, by its Members, or others, in the presence and during the sittings of the House, and which authority had '.T been enjoyed and exercised in like cases by Legislative As- semblies in other parts of the dominions of Her Majesty the Queen, did make and issue his warrant under his hand and name, as such VOL. L] CASES IN THE PEIYT COUNCIL. 331 Speaker, directed to the Serjeant-at-Arms, or his Deputy, in and J. C. by which warrant reciting, that : " Forasmuch as the House of 1866 Assembly had that day adjudged that George Charles Falconer, DOYLE Esquire (the Plaintiff), had been guilty of a contempt and breach F ^ of the privileges of the House, and thereupon ordered that George Charles Falconer should be for the offence committed to the com- mon gaol of the said Island, during the pleasure of the House ; it was required that the said Serjeant-at-Arms, or his Deputy, should take into his custody the body of George diaries Falconer, and then forthwith deliver him over to the custody of the keeper of the gaol." That the Defendant, Doyle, as such Speaker, delivered the warrant to one Andrew Johnson, the Serjeant-at-Arms, and to whom the same was directed to be executed. So far the facts were pleaded by all the Defendants. The re- mainder of the allegations contained in the plea were pleaded by the Defendant, Doyle, only. After the averment of the delivery of the warrant to the Serjeant-at-Arms, the plea proceeded; and Defendant, Doyle, further says, that being such Speaker, after the making of the resolutions and order, and for the execution thereof, and according to the law, custom and practice of the House there- tofore used, and which did always of right belong to the House (for the punishment of contempts committed, and for obstructions given to the business of the House by the Members or others in the presence and during the sittings of the House, and which autho- rity had ever been exercised in like cases by Legislative Assemblies in other parts of the Queen's dominions), did, in pursuance of the resolutions and order, and for the further execution of the resolu- tions and order, make his certain other warrant under his hand and name, directed to the keeper of the gaol or his deputy, in and by which last mentioned warrant, reciting that the House of As- sembly had that day resolved that George Charles Falconer, of the Island, Esquire, having been guilty of a contempt and breach of the privileges of that House, be committed to the common gaol of the Island during the pleasure of the House. Therefore, it was required that the keeper, or his deputy, should receive into his custody the body of George Charles Falconer, and him safely keep during the pleasure of that House. The plea then averred delivery of this last-mentioned warrant by the Defendant, Doyle, VOL. I. 320 Df THB PBIVT COUNCIL. [L. It J. C. to the keeper of the gaol to be executed, and that by virtue of the 1866 first warrant, and in obedience to the resolutions an-1 ~ M the House, Johruon, the Serjeant-at-Arms, arrested the ri.iintilT. forced him to go into and along divers streets, A*-., in tin- way It; N 1 :._ to the gaol, and delivered him into th-- ru-t.. tho warrant secondly i tioned. That Johnson, in arresting the Plaintiff and conveying him i" j>ri*>n, used as little force as he coul-1. The third plea pleaded to the second nn>l thinl counts the same facts to those counts as pleaded by the second plea to the first count, concluding, that the Defendants were not guilty of the tres- passes, or any of them, oth< ruisc or in any manner than by making, signing, issuing and ik-lm-ring of the warrants by Doyle, as such Speaker, in pursuance of the resolutions and order afore- said, in manner and form as in the plea alleged. To these pleas the Plaintiff demurred. On the first plea an issue in fact was joined, to be tried. To the second and third pleas the Plaintiff demurred specially, assigning the causes to th> effect: First, that those pleas were no answer to the action, but were evasive and uncertain, and that no precise issue could be taken upon them. Secondly, that the pleas did not suffi- ciently aver and set forth the legal existence of the custom and practice alluded to by the pleas of punishing contempts, inter- ruptions, and obstructions as of right belonging to the Lower House of Assembly, nor of the authority to commit for such contempts and obstructions mentioned in the said pleas as en- joyed in like cases by the Legislative Assemblies in other parts of the Queen's dominions. Thirdly, that the two warrants 11 tioned in the pleas were illegally and untechnically made and issued in (1st) that they did not set forth the precise nature of the alleged contempt ; nor (2nd) when and where the same was committed; (3rd) nor that it was committed in the face and during the sitting of the Assembly ; (4th) nor that the Plaintiff w;i> a Member oi fa Lower ll>\\~- i Ass-mMy : (.~-tli) that they did not limit or fix the term of imprisonment, but left such :u to the discretion of the House ; and (6th) that the warrant was not under the hand and seal of the Defendant, Doyle. Fourthly, VOL. I] CASES IN THE PEIVY COUNCIL. 333 that the second and third pleas did not set forth the words used J. c. by the Plaintiff on objecting to the original motion and amend- 1S66 ment thereto alluded to by the pleas, nor the words used by one DOYLE of the Defendants, Charles Leathern ; and Fifthly, that the pleas FAL( J N . EK were inartificially pleaded, and were in other respects uncertain and insufficient, &c. Issue having been joined and Counsel heard in support of the demurrer and pleas, the Court reserved its judgment, which was afterwards delivered by the Chief Justice, Sholto Thomas Peniber- ton, Esq., in favour of the Plaintiff. The cause was tried before the Chief Justice, by a special jury, on the 7th of July, 1864, and a verdict given for the Plaintiff, with 770 damages. Exceptions were taken to the admission of evidence and the ruling of the Judge, and a rule nisi obtained to set aside the verdict, and for a new trial, on the exceptions taken, and on the ground of excessive damages. The rule was argued, but ultimately abandoned, the Counsel for the Appellant intimating his intention to appeal from the judgment on the demurrer, as well as the refusal of a nonsuit, to Her Majesty in Council, whereupon judgment for the damages was entered up against the Defendant (the Appellant), and execution awarded. The appeal thus asserted came on for hearing, but the material one being that against the judgment of the Court on the demurrer, was alone argued. Mr. Hellish, Q.C., and Mr. Macnamara, for the Appellant : Two questions are raised by the pleadings in this case, and were argued on the demurrer in the Court below. First, had the Lower House of Assembly in the Island power to commit one of its Mem- bers, by way of punishment for a contempt committed against it in its presence ; and, secondly, assuming the existence of this power, are the pleas which set forth the several facts pleaded by way of jus- tification, sustainable. Now, the pleas, though demurred to, were not traversed : the facts contained in them must, therefore, be admitted to be true ; and, as we contend, shew a good and valid defence to the action, and the judgment on the demurrer ought to have been given for the Defendants. Assuming that it has been decided by the cases of Kielley v. Carson (1), and Fenton v. Hampton (2), (1) 4. Moore's P. C. Cases, 63. (2) 11 Moore's P. C. Cases, 347. 3 2 C 2 ; !;; j CASES IN THE PRIVY COUNCIL. [L. B. j.G. that tli.- II-ii-.- of Assembly ha where, as in this case, the pleas allege the << ;md obstr i \\hi.-h the House had proceeded to punish, ha ! it ted by one of its Members in the presence of the Assembly itself. In Kiefley v. Carson (1), which is said to overrule the mer decision of this Court in Beaumont v. Bam ' i. Baron Parlce, in giving judgment, expressly says, that "The question, therefore, wh.-th r the House of Assembly could commit by way of punishment for a contempt, in the face of it, does not arise." That point is, therefore, undecided, and the learned Judge, in speaking of the powers conferred by the Common Law, and the principle which governs all legal incidents, " Quando Lex aliquid concedit, coneedere viditur et iUud, sine quo res ipsa esse non potest" says : " In conformity to this principle, we feel no doubt that such an Assembly has the right of protecting itself from all impedi- ments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principles of the Common Law (3)." Upon these principles, then, we contend, that the power here exercised is incident to the House of Assembly, as necessary to its i mlependence and security as a Legislative body. It is not requisite for us to claim for the Assembly the privileges of Parliament : the lex et consueiudo Parliamenti is not involved in this case, further than is necessary fpr the due exercise of the Legislative authority and the character of the House of Assembly. In Burdett v. Abbot (4), Lord EHenborough is represented to have said, that the power of committing for contempt is incident to every Legis- lative Assembly, and upon that dictum the decision in Beaumont Barrett (2) was founded, which has since been modified by Kiettey v. Carson, yet for contempt such as this, committed in the face of the Assembly, we still maintain that the dictum of Lord EBenborough is well founded. The case of Fenton v. Hampton (5), is an authority that the lex et consuetude Parliamenti applies ex- (1) 4 Moore's P. C. Cases, 63. (3) 4 Moore's P. C. 'Cases, 88. (2) 1 Moore's P. C. Cases, 59. (4) 14 East, 137. (5) 11 Moore's P. C. Cases, 347. VOL. I.] CASES IN THE PRIVY COUNCIL. 3S5 clusively to the Houses of Lords and Commons, and not to any J. C. Colonial House of Assembly ; that we do not question. Dill v. 1866 ifwrphy (1), recognized the authority of Kielley v. Carson, but was DOYLE decided on the construction and interpretation of the word " de- F ALC ^ NEIL fine," as applied to the privileges and powers of the Colonial Council and Assembly of Victoria, in the 35th section of the Colonial Act, 20 Viet. No. 1, under the powers conferred by the Imperial Statute, 18 & 19 Viet. c. 55. Secondly, with regard to the warrants, it was contended in the Court below, and so held, that inasmuch as upon the face of the warrants they did not disclose that the offence was within the juris- diction of the House of Assembly, they were bad, and the cases of CJiristie v. Unwin (2), Harrison v. Wright (3), and Howard v. Gos- set (4), were relied on. But the pleas were a complete answer to the declaration ; they contained, besides the warrants themselves, the full circumstances of the defence, and being demurred to, the Court was competent to determine whether or not the Lower House of As- sembly had such a privilege as would support the pleas : Stockdale v. Hansard (5). The judgment of Mr. Justice Williams in Howard v. Gosset (6), which is the great authority on the form of such a warrant, is conclusively in our favour : Daniell v. Pliillipps (7). We contend, therefore, that, upon the authorities, the warrants were sufficient. Sir E. Palmer, Q.C., and Mr. Leith, for the ^Respondent : This is a question affecting the liberty of the subject, and must be decided by strict principles of law. The two principal questions raised in the Court below were important questions of constitutional law ; first, whether the Lower House of Assembly in the Island of Dominica had the power, which it assumed to exercise, of punishing one of its own Members for an alleged contempt, committed in the face of the Assembly, and so adjudicating upon the fact and mea- sure of punishment, and ordering and directing the execution of their own sentence of arrest and imprisonment; and, secondly, whether, assuming the possession of the power, the warrants of the Assembly, made out under the hand of their Speaker, were not (1) 1 Moore's P. C. Cases (N. S.) 487. (2) 11 A. & E. 373, 379. (3) 13 M. & W. 816. , (4) 10 Q. B. 359, 377, 394. (5) 9 A. & E. 1. (6) 10 Q. B. 398. (7) 1 C. M. & E. 662. ;;; ;,; CASES IN THE PRIVY COUNCIL. [L. R. invalid at law, as not shewing that tli*- r Paley on Summary Convictions, p. 325 [5th Ed.] ; Reg. v. King (2). Now, the warrants are bad, as not shewing that the alleged con- tempt was committed in the presence of the House, that the Re- spondent was a Member, what the nature of the contempt was, nor for what term he was to be imprisoned, or how he was to regain his liberty ; and further, the warrants were not under seal. In Howard v. Gosset (3) the validity of the warrant was very largely discussed, and all the authorities bearing on the question are cited and commented on. Upon all these grounds we contend that the judgment of the Court below on the demurrer was right, and the appeal ought to be dismissed with costs. Judgment was reserved, and now delivered by Dec. 15. Sm JAMES W. COLVILE : The Respondent in this case, being a Member of the Lower House of Assembly of the Island of Dominica, brought an action of trespass for assault and false imprisonment against the Speaker and ten other Members of that body. The Defendants put in two special pleas justifying the trespasses complained of, to which the Respondent demurred. Judgment on the demurrer was given in his favour by the Court below, and the present appeal is against that judgment. The following are the facts set forth in the pleas, so far as it is necessary to state them. The Respondent having, whilst addressing the House, been called to order by the Speaker and House, and having then ad- dressed to the Speaker, when in the due execution of his office, the words, " You are a disgrace to this House," and having been called upon by the House to apologize, and having refused to do so, was declared in contempt of the said Lower House of Assembly. While so in contempt, he further interrupted and obstructed the business before the House, whereupon it was resolved that for his (.1) 1 Wms. Saund. 74, b. (2) 1 D. & L. 721. (3) 10 Q. B. pp. 359, 406, 408, 409, 456, 460. CASES IN THE PRIVY COUKU I. [L. B. j.C. Conduct and contempt of the House, he should be taken UN into t lie custody of the Serjeant-et-Arms, and ti j^j should issue his warrant committing him to the common ga< the Island during the pleasure of the House. In pursuance of this resolution, the Speaker issued two warrants : the one directed to the Serjeant-at-Anns, requiring him to take the llesj and to deliver him over to the keeper of the common gaol ; the ot directed to the gaoler, requiring him to receive into his cust the body of the Respondent, and to keep him safely during the pleasure of the House. But each warrant bore only on the face of it that the House of Assembly had adjudged the llesi>n guilty of a contempt and breach of its privileges, and had ordered that he should be, for the said offence, committed to the common gaol of the Island during the pleasure of the House. The questions upon which the sufficiency of the justification thus pleaded depend, are : First, does the House of Assembly possess the authority which the pleas allege did always of right belong to it, and to Legisla Assemblies in other parts of the dominions of Her Majesty, \i/. : an authority to commit and punish for contempts committed, and for interruptions and obstructions given to the business of the said House of Assembly, by its Members or others, in its presence and during its sittings ? Secondly, assuming the existence of this alleged authority to be established, were the warrants issued by virtue of it sufficient in law? The first question, affecting as it does the privileges of the Legislative Assemblies in many of the dependencies of the Crown, is one of importance. When it first arose before this Committee, in the case of Beaumont v. Barrett (1), the learned Judges then sitting decided broadly that the power of punishing contempts is inherent in every Assembly that possesses a supreme legislative authority, whether they are such as are a direct obstruction to its due course of proceeding, or such as have a tendency in- directly to produce such obstruction; and, therefore, that the Legislative Assembly of Jamaica had the power of imprisoning for a contempt by the publication of a libel. (1) 1 Moore's P. C. Cases, 59. VOL. I.] CASES IN THE PRIVY COUNCIL. 339 Again, in America, the Supreme Court of the United States, a J. C. Tribunal whose judgments are entitled to the highest respect, held, 1866 in the case of Anderson v. Dunn (1), that the House of Repre- DOYLK sentatives had, by necessary implication, a general power of punish- FAL( ?ONEB. ing and committing for contempts, notwithstanding that the lex seripta, " the Constitution of the United States" had expressly conferred upon it a power limited to the punishment of contempts when committed by its own Members. It is admitted, however, that the case of Kielley v. Carson (2), which overruled that of Beaumont v. Barrett, and has been fol- lowed by that of Fenton v. Hampton (3), must here be taken to have decided conclusively that the Legislative Assemblies in the British Colonies have, in the absence of express grant, no power to adjudicate upon, or punish for, contempts committed beyond their walls. The case is one which, having regard to the constitution of the Committee before which it was argued for the second time, their Lordships must accept as an authority of singular weight. And if the elaborate judgment which was then pronounced has in terms left open the question which is raised in the present case, it has stated principles which go far to afford the means of deter- mining that question. The privileges of the House of Commons, that of punishing for contempt being one, belong to it by virtue of the lex et consuetude Parliament^ which is a law peculiar to and inherent in the two Houses of Parliament of the United Kingdom. It cannot, there- fore, be inferred from the possession of certain powers by the House of Commons, by virtue of that ancient usage and prescription, that the like powers belong to Legislative Assemblies of comparatively recent creation in the dependencies of the Crown. Again, there is no resemblance between a Colonial House of Assembly, being a body which has no judicial functions, and a Court of Justice, being a Court of Kecord. There is, therefore, no ground for saying that the power of punishing for contempt, because it is admitted to be inherent in the one, must be taken by analogy to be inherent in the other. If, then, the power assumed by the House of Assembly cannot (1) 6 Wheaton. Amer. Rep. 204. (2) 4 Moore's P. C. Cases, 63. (3) 11 Moore's P. C. Cases, 347. ,, , CASES IN THE PRIVT COUNCIL. [L. R. be maintained by analogy to tbe privileges of the House of Corn- lias moos, or the powers of a Court of Record, is there any other legal iJ"""" foundation upon which it maybe rested? It has not, as both sides admit, been expressly granted. The learned Counsel for the *_-!' Appellants invoked the principles of the Common Law, and as it must be conceded that the Common Law sanctions the exercise of the prerogative by which the Assembly has been created, the principle of the Common Law, which is embodied in the maxim, " Quando lex aliquid concedit, concedere videtur et tflud, sine quo ret tpsa MM nan potest," applies to the body so created. The question, tip iv;'< .re, is reduced to this : Is the power to punish and commit for contempts committed in its presence one necessary to the existence of such a body as the Assembly of Dominica, and the proper exercise of the functions which it is intended to execute ? It is necessary to distinguish between a power to punish for a con- tempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is neces- sary for self-preservation. If a Member of a Colonial House of Assembly is guilty of disorderly conduct in the House whilst sitting, he may be removed, or excluded for a time, or i expelled ; but there is a great difference between such powers and the judicial power of inflicting a penal sentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment is another. The former is, in their Lordships* judgment, all that is warranted by the legal maxim that has been rited, but the latter is not its legitimate consequence. To the question, therefore, on which this case depends, their Lordships must answer in the negative. If the good sense and conduct of the members of Colonial Legislatures prove, as in the present case, insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person offending from the place of meeting, and to keep him excluded. The same rule would apply, a fortiori, to obstructions caused by any person not a member. And whenever the violation of order amounts to a breach of the peace, or other legal offence, recourse may be had to the ordinary tribunals. It may be said that the dignity of an Assembly exercising VOL. I.] CASES IN THE PEIVY COUNCIL. 341 supreme legislative authority in a Colony, however small, and the J. C. importance of its functions, require more efficient protection than 1866 that which has just been indicated ; that it is unseemly or incon- DOYLE venient to subject the proceedings of such a body to examination by the local Tribunals ; and that it is but reasonable to concede to it a power which belongs to every inferior Court of Record. On the other hand, it may be urged, with at least equal force, that the power contended for is of a high and peculiar character ; that it is in derogation of the liberty of the subject, and carries with it the anomaly of making those who exercise it Judges in their own cause, and Judges from whom there is no appeal ; and that if it may be safely intrusted to magistrates, who would all be personally responsible for any abuse of it to some higher authority, it might be very dangerous in the hands of a body which, from its very constitution, is practically irresponsible. Their Lordships, however, are not at liberty to deal with con- siderations of this kind. There may or may not be good reasons for giving by express grant to such an Assembly as this, privileges beyond those which are legally and essentially incident to it. In the present instance, this possibly might have been done by the instrument creating the Assembly; since Dominica was a con- quered or ceded Colony, and the introduction of the law of England seems to have been contemporaneous with the creation of the Assembly. It may also be possible to enlarge the existing privi- leges of the Assembly by an Act of the Local Legislature passed with the consent of the Crown, since such an Act seems to be within the 3rd section of the recent Statute, 28 & 29 Viet. c. 63. That extraordinary privileges of this kind, when regularly acquired, will be duly recognized here, is shown by the recent case of DiU v. Murpliy (1). But their Lordships, sitting as a Court of Justice, have to consider not what privileges the House of Assembly of Dominica ought to have, but what by law it has. In order to establish that the particular power claimed is one of those privi- leges, the Appellants must shew that it is essential to the exist- ence of the Assembly, an incident " sine quo res ipsa esse nonpotest" Their Lordships are of opinion that it is not such an incident. This being their Lordships' judgment, the foundation of the (1) 1 Moore's P. C. Cases (N. S.) 487. .; u CASES IN THE PBIVT COUNCIL. [L. B J-C. justification pleaded fails; and it is unnecessary for them to con- tM6 gider at any length the subordinate question of the sufficiency of DUYL* the warrants. PALOOVBL - v uave however, no (loult that the warrants having been issued by virtue of an alleged authority which, it it existed, was confessedly a limited one, ought to have shewn on the face of th-in, that the alleged contempt was committed in the presence of the House, and so fell within the limits of that authority. Their Lordships, therefore, conceiving that the judgment of the Court below was right upon both points, and that the costs of the appeal should, according to the ordinary rule, follow its result, will humbly recommend Her Majesty to dismiss this appeal, with costs. Solicitor for the Appellants : F. E. Mawe. Solicitor for the Respondents : T. L. Wilson. J.C.* RALPH NUNES APPELLANT; ASD rK^u. ANDREW CARTER RESPOND: ON APPEAL FROM THE SUPREME COURT OF JAMAICA. Jamaica Insolvent Act Construction of Insolvency Trantfcr within fix montht of Fraudulent preference Evidence of. The Jamaica Insolvent Act, 11 Viet. c. 28, B. 67, provides that, if any person in contemplation of insolvency shall transfer any of his estate to any Creditor for th benefit of such Creditor, such transfer shall be deemed fraudu- lent and void against the Official Assignee: provided always, that no such transfer shall be so deemed fraudulent and void unless made within six months before a declaration of insolvency : Held, that a transfer of property made by a party in insolvent circumstances, within a period of six months before a declaration of insolvency, was absolutely void, although there was no evidence of any fraudulent preference. 1 HIS was an appeal from a judgment of the Supreme Court of Jamaica, by which a rule nisi, which had been obtained for a venire de now, or for a new trial, was discharged by a majority of the Court. * Present : LORD WESTBUBY, SIB JAMES WILLIAM COLVILE, and Sm EDWABD YAUGHAN WILLIAMS. VOL. 1.] CASES IN THE PKIVY COUNCIL. 343 The action was brought by the Respondent, as the Official j. c. Assignee of the estate and effects of one Isaac Nunes Vaz, an Insol- ISGG vent debtor, against the Appellant, Ralph Nunes, and one Ben- NUNES jamin Nunes, who had died since the judgment appealed from v - was given. The form of the action was upon the case. The decla- ration contained six special counts, and three counts in trover, to all of which the Defendants pleaded " not guilty." The action, in substance, was to recover damages from the Defendants for appropriating certain moneys, and securities for money, which were alleged to have been fraudulently transferred to them by Vaz, the Insolvent, within six months before his insolvency. The claim was founded upon the 67th sect, of the 11 Viet. c. 28 (the Insolvent Act in force for the Island of Jamaica), which section is as follows : " That if any person, in contemplation of his be- coming Insolvent, or being in insolvent circumstances, shall convey, assign, transfer, charge, deliver, or make over any estate, real or personal, security for money, Policy of assurance, Bond, Bill, note, money, property, goods or effects whatsoever, to any Creditor or Creditors, or to any person or persons in trust for, or to, or for the use, benefit, or advantage of, any Creditor or Creditors, or to any person who is, or may be liable as surety for such person, every such conveyance, assignment, transfer, charge, delivery, and making over, shall be deemed fraudulent and void as against the Official Assignee of such person : Provided always, that no such conveyance, assignment, transfer, charge, delivery, or making over, shall be so deemed fraudulent and void unless made within six months before the commencement of such imprisonment, or before any declaration of insolvency according to the provisions of this Act, or with the view or intention by the party so transferring, charging, assigning, conveying, delivering, or making over, of applying for his discharge under this Act." The action was tried before Mr. Justice CargiU and a special jury, in the month of June, 1863, when the following facts were given in evidence : The Plaintiffs, Messrs. Nunes, were Merchants at Jamaica, carrying on a large business there, under the style of Nunes Brothers ; and the Insolvent, Vaz, was a trader in Salvanna la Mar, who had had dealings with Messrs. Nunes for some time previously to the transactions which w.ere the subject of the action. ;;jj CASES IN THE PRIVY 00 UN< 1 1 [L.B. J. C. In the early part of the year 1862, Vaz fell into ill h. -alth, and IMA hi* affairs becoming somewhat deranged, in th<> month of Mm ^ that year he submitted them to Benjamin Nunes, the then senir partner of the firm, who, after the inspection of the books, undertook the management and coinlwt <>f Vazs business. On assuming the management, B. Nunes discharged Walcott, one of Vaz's clerks, and put Isaacs, a Clerk of his own, in his place, and handed over to Isaacs the balances to open a new set of books. During rval between March and June, lb*;_, \\li.-u th- in- solvent condition of Vaz first became known to his creditors, B. Nunes succeeded in realizing out of Vaz 8 assets the greater portion of the debt due to his own firm. It further appeared that in the months of January and February, 1862, various sales of merchandise were made to Vaz by the Messrs. Nunes, and upon each sale, in accordance with the usual course of business, the Messrs. Nunes drew a Bill on Vaz, which he accepted at ninety days' sight, for the price of the goods: and these Bills were thereupon paid into the Bank of Jamaica by Messrs. Nunes, where they, as well as Vaz, kept a banking account. It did not ap- pear at the trial whether these Bills were discounted by the Bank, or were merely deposited in their hands for the purpose of collection. They were, however, in the hands of the Bank at the time when they became respectively due ; and it was proved that assets of Vaz were, with his concurrence, appropriated by the Bank during the months of February, March, April, and May, towards taking up those Bills. It was also proved that Messrs. Nunes had accepted a Bill for 143. 17. 3d. for the accommodation of Vaz, which Bill was paid out of Vaz s assets in March, 1862, and that two other Bills for 289. 10s. and 150. 10s. respectively, were accepted by Vaz, and, with other Bills, taken up and paid by Messrs. Nunes in the months of April, May, and June following. Vox was declared Insolvent on the 2nd of October, 1862. The Respondent was chosen Official Assignee, and the action was brought by him against Messrs. Nunes to recover the amount of these acceptances. Upon these facts the learned Judge, in summing up, directed the jury in the following terms : u The Plaintiff will be entitled to your verdict if the payment of. the acceptances occurred within six VOL. I.] CASES IN THE PEIVY COUNCIL. 345 months immediately prior to the actual judicial declaration of J. C. insolvency, though they had been converted into money by dis- 1866 count at the Bank." The jury, upon this direction, found a general NINES verdict for the Plaintiff for 1,226. Is. 5d. c J TOR On the 8th of October, 1863, a rule nisi was obtained for a venire de novo, because the declaration contained counts bad in substance, and that the verdict and assessment of damages were general ; or that the verdict obtained be set aside, and a new trial granted, on the following grounds : first, that the verdict was con- trary to law ; second, that the verdict was contrary to the evidence and the weight of evidence; and third, for misdirection of the learned Judge in charging the jury that the Plaintiffs would be entitled to their verdict if the payment of the acceptances occurred within six months immediately prior to the actual judicial declara- tion of insolvency, though they had been converted into money by discount at the Bank ; and, lastly, that the damages were excessive. Upon this rule coming on to be argued, before the Chief Justice, Sir Bryan Edward, and the Justices Kenible and Ker, it was dis- charged by a majority of the Court, the Chief Justice dissenting. From this judgment the present appeal was brought. Sir R. Palmer, Q.C., and Mr. Garth, Q.C., for the Appellant : We rely on the grounds stated in the rule nisi obtained in the Court below for a new trial : the verdict was contrary to, as well as against, the weight of evidence. The learned Judge mis- directed the jury. The true question for the jury was, not whether the payment of the acceptances occurred within six months of the insolvency, but whether there was a fraudulent preference. An acceptor of a Bill, who had been provided with money by the drawer, has a right to retain the money against the drawer's assignee, if he became Bankrupt: Yates v. Hoppe (1). The action was brought under the 67th section of the Jamaica Insol- vent Act, 11 Viet. c. 28, which provides, that in order to constitute a fraudulent preference the conveyance, assignment, or transfer, must be made by a party in contemplation of his becoming Insolvent or being already insolvent. Such contemplation of, or absolute in- solvency, must mean a judicial declaration of insolvency, and a (1) 19 L. J. Rep. (N. S.) C. P. 180. > j ( ; CASES IN THE PRIVY COUNCIL. ; I.. K. preference in favour of one Cr> ditm- o\.-r tin- i-th- rs would, in su<-h i* | ,.umstance,beafrftudul. nt preference; that MM i in this \"i Court iu the case of The Bank of Australasia v. Harris (1), l.ut in Johnton v. Feumeyer (2), an assignment of an Equity of red. tthji-h 1 .-.id. T in ixjwession of the materials for carrying his trade, was held not to be such a preference as would constitute an act of Bankruptcy, and, therefore, not a frauduli nt j. reference. In Beelte v. Smith (3), the Court of Exchequer held, tli;it 32nd section of provision in the Insolvent Ad, 7 Geo. 4,c. 57, as to the validity of transfers within three months of the commence- ment of imprisonment, depends on the fact whether the assignment was made by the Insolvent with the view and intention of j tioning the Insolvent Court for his discharge. Here the jury were only directed to consider the question whether the transfer took place within six months of the insolvency. Mr. CWferuZ/7e,Q.C.,andMr. W. W. Maclceson, for the Respondent : The ground of the decision of the Court below, and the con- sequent discharge of the rule nisi, was, that a delivery of part of the assets of the Insolvent, Vaz, in satisfaction of debts due by him to the Nunes, within six months of his declared insolvency, was fraudulent within the Jamaica Act, 11 Viet. c. 28, s. 67, as against the Respondent, the Official Assignee. "We submit, that such an appropriation of the assets of Vaz was, irrespective of any fraud or fraudulent preference, in direct violation of that Act, and as such was impeachable by the Official Assignee. The Jamaica Ad is not founded on the English Insolvent Debtors' Ad, 1 Geo. 4, c. 57, which specifies three months as the prescribed time for making transfers. The case of Becke v. Smith (3), relied on by the Appellant, is in our favour. If the transfer be made within the prescribed period, no question arises as to fraudulent preference. The policy of the Act is manifest; it is the same policy which prevailed for many years in this Country, viz., that bargains with traders were liable to be set aside if made within a certain period of insolvency. The case of The Bank of Australasia v. Harris (4) differs materially from the present case, for the (1) 15 Moore's P. C. Cases 97. (3) 2 M. & W. 191. (2) 3 De U. & J. 13. (4) 15 Moore's P. C. Cases, 97. VOL. I.] CASES IN THE PEIYY COUNCIL. 347 provisions of the Queensland Insolvent Act, 5 Viet. No. 17, s. 8, J. C. are different from those of the Jamaica Ad; for to constitute a i860 * *' fraudulent preference under that Act there must be either actual NUKES Insolvency, or a contemplation of the surrender by the Debtor of his estate, or knowledge on his part of proceedings for obtaining an order of sequestration of his estate as an Insolvent having been commenced against him. LORD WESTBURY: Two points have been argued before us in support of this appeal, one, a question of law turning on the proper construction of the Insolvent Act in Jamaica, and the other a proposition of fact. The 67th section of the Jamaica Insolvent Act, 11 Viet. c. 28, is as follows (the learned Lord read the clause, ante, p. 343) : The judicial declaration of Insolvency in this case took place on the 2nd of October, 1862. The legal question which has been argued before us upon the construction of the Act is this. It is contended by the Appellant, that the mere fact of a transfer of property being made, within six months anterior to the declaration of Insolvency, will not avoid it, unless it be proved to be made under such circumstances as would have constituted a fraudulent preference of the Creditor to whom the property has been conveyed, under the Bankrupt law. We are of opinion, that this is not the true construction of the Act. In support of that construction, we were referred to a case de- cided by this Committee in the year 1861, The Bank of Austra- lasia v. Harris (1), in which, on the construction of the Queensland Insolvent Act, 5 Viet. No. 17, s. 8, it was held, that a transfer of property made within a given time must be proved to be a fraudu- lent preference in order to its being avoided. In that Act relating to Queensland, the words had the effect of avoiding the transaction, if made within sixty days, provided it was not only made within that period of time, but also had the effect of preferring any then existing Creditor to another. The conditions of the avoidance of a transfer in that Act were, therefore, two : one, that it should be made within a certain period of time before the Insolvency ; the (1) 15 Moore's P. C. Cases, 97. VOL. I. 3 2 D :; j s CASES IN TFIE PRJVY COUNCIL. [L. B. J.Oi other, conjointly, that it should have the effect of giving a prefer- 1M8 ence to one Creditor over the others, and it was held, in 1 1 . 1, interpretation of the Act, that the preference must be fraudulent. A fraudulent preference is well known to the Bankrupt law. arises where the Debtor, in contemplation of bankruptcy that is, knowing his circumstances to be such as that bankruptcy must or will be, the probable result, though it may not be the inevitable result does, ex mero motu, make a payment of money, or a delivery of property to a Creditor, not in the ordinary course .ess, and without any pressure or demand on the part of the Creditor. We have no doubt of the correctness of the decision on the Queensland Ad ; but the Jamaica Ad is founded altogether upon that which was the policy of the Bankrupt law, and of the Insol- vent law, from the earliest time, until they were altered by recent Legislative enactments. In early times, by the Bankrupt law, as it was settled by the Statute of James L, a bond fide sale of property for value by a man who had committed an act of bankruptcy, although the Purchaser had no notice of it, might be avoided, if a Commission issued within five years after the transaction, a very harsh and unreason- able law. It was altered, with much difficulty, by the Act Sir Samuel Romifly brought in in the year 1806. But that alteration extended only to this that a bond fide sale to an innocent Purchaser, that is, a purchaser who had no notice of an act of Bankruptcy hnving been committed by the Trader, who was the vendor, would be avoided and set aside if a Commission of Bankruptcy issued against the Trader within two montlis after the date of the transac- tion. The avoidance was created simply by the relation of the subsequent Commission of Bankruptcy back to the prior act of bankruptcy. There was every moral reason for supporting bond fide transactions ; but, according to the then notion of the law, it wag expedient, and for the public interest, that transactions by Traders should be subject to be overreached and avoided, if they were found to have occurred within a certain period before bankruptcy ; although the transaction, so far as the Purchaser or Creditor was concerned, was, on his part, a perfectly innocent proceeding. By a subsequent alteration of the law, avoidance was not to take place, unless a Commission of Bankruptcy issued Nvithin twelve VOL. I] CASES IN THE PEiVY COUNCIL. 349 months ; and, finally, the law was altered as it now stands, viz., it J. c. there be a lond fide sale, or delivery of property, for value to a 1866 Purchaser, without notice of an act of Bankruptcy, that transaction NUNKS is valid, although the Vendor or the Assignor subsequently become C^^R Bankrupt, and a prior act of bankruptcy is proved to have been committed. The same policy existed also with reference to the Insolvent Acts, viz., transactions, however innocent, were avoided, if they were proved to have taken place by persons in insolvent circum- stances within a certain period of time three months before the judicial declaration of insolvency. The Jamaica Act of the llth Victoria, is clearly founded upon the same policy, that is, the notion of the public interest to which we have referred. Similar rules may be found in the Insolvent law and Bankrupt law of almost every Country in Europe. In a case to which we were referred in the Court of Exchequer, Becke v. Smith (1), Mr. Baron ParJce, referring to a proviso in one of the Insolvent Acts in this Country then in force, uses these words, " That proviso enacts that no such conveyance shall be void unless made within three months before the commencement of the im- prisonment, or with a view of petitioning the Court for his (that is, the Insolvent's) discharge. If either of these circumstances occurs, the voluntary conveyance by an Insolvent is rendered null ; if made within three months it is void ; if made at any time, with the view of petitioning the Court, it is void." We are, therefore, of opinion, that the true construction of- this Jamaica Act is in conformity with the established principle upon which these enactments, whether in Bankruptcy or in In- solvency, were founded, viz., the principle that it is expedient to avoid transactions if made within a certain period of time be- fore the adjudication of Bankruptcy or Insolvency. Transfers of property, made by a party in insolvent circumstances, if they occur within a period of six months before the declaration of In- solvency, are transactions which this law, proceeding upon that policy, pronounces to be fraudulent and void as against the Official Assignee. We cannot adopt the argument that you must, ultra that, shew something amounting to a fraudulent preference. We (1) 2 M. & W. 19G. 3 2 D 2 ;;-,, CASES IN Til i: II: IVY COUNCIL, [L.B, consider the transaction may be avoided if it be shewn to have UM oecurn-d within six months previous to the Insolvency. JTj The next point that is raised for the support of avoiding tin- operation of this const ni.M i< >n of the Act, is one of fact. This appeal comes to us from an Order of the Supreme Court, refusing a new trial. A new trial was moved for on several grounds, on <>t \\lii.-h was misdirection by the learned Judge; another was that the verdict was against the evidence. The case that went to the jury may be thus generally statc ' ^59, the Respondent having been summoned before the Royal Court for the confirmation of his tenancy aa the Appellant's Procureur ; God/ray renewed his appli- cation that the Appellant should give *-rurity. Imt J> -Hunt, of Snell as sole tenant of Gray, it was agreed that the Respondent and SneH should share equally in the profit and loss from the tenancy, and they bound themselves to pass a contract to that effect within two months, under penalty, but without guarantee on the part of SneU. A proviso was added to this agreement, to the effect that the contract of the Appellant's husband, of 1844, with Gray, should remain good, or that some arrangement should be made touching this matter between the parties to that agreement and the Appel- lant, so that her interest in the transaction between her husband and Gray should be protected. This agreement thus entered into was not registered in the Island, nor was any contract ever passed, as contemplated by the above arrangement. On the 9th of November, 1859, another private agreement was made between the Respondent and SneU, by which the former VOL. L] CASES IN THE PRIVY COUNCIL. 355 agreement of the 23rd of September, 1859, was cancelled, and j. c. another agreement substituted in its place, to the following effect : 1866 That SneU should remain sole owner of the property of the WILLIAMS teneure ; and instead of resigning the moiety to the Kespondent, s v should grant (transporter) a sum of thirty-four quarters of wheat rent annually (being, at 15s. and a fraction, worth 26 3s. Id.), and charge the same on the real property (lieritages) of Snett, to and in favour of the Kespondent and his heirs. That such grant should be in the form of bail et veritd (a contract of sale), but the payment of the money consideration, which would appear on the face of the grant, was not to be enforced by SneHl from the Re- spondent. That the sum of wheat-rents was to represent the con- sideration for which the Respondent gave up his moiety of the Jeneure. That the first payment of the wheat- rent was to be made at Michaelmas, 1860, and afterwards for ever. That a con- tract should be passed by Sndl, in conformity with this agreement. That all expenses incurred by the Respondent in relation to the teneure, should be repaid to him, including specificially a sum of 150 paid by him on the 28th of October, 1859, being a moiety of some arrears of rentes due under the decret. The penalty for the non-performance of this agreement was 500. This agreement was also entered into without the knowledge of the Appellant, and was never registered in the Island. On the 19th of November, 1859, a contract was passed in Court before the Bailiff and Jurats, between SneU of the one part, and the Respondent of the other, by which SneU purported to sell to the Respondent in fee thirty-four quarters of annual wheat-rents, charged upon certain houses therein specified, and part of the pro- perty of Gray's decret, the ostensible price, or the consideration for the sale, which was therein stated to be paid, being 578 sterling. This contract of sale was registered in the public registry of the Island, and on the same 19th day of November, 1859, an indorse- ment was made on the agreement of the 23rd of September, 1859, cancelling it. Sndl repaid the 150 to the Respondent, in accordance with this contract On the same 19th of November, SneU signed a document, by which, after reciting that the Appel- lant had, through the Respondent, her Procureur, declared her- self tenant to the property of Gray, and also reciting the Act of ;;;,,; CASES IN THE PRIVY COUNCIL. [L. B. Court, substituting Snefl as tenant in .it ion of such substi- 1866 tuti. :i. Stuff bound himself to pay the Appellant 26 sterling a WUJJAIO >ear fur her life, |>autble .juarterly. The Appellant receive.l two 18M * of the tenancy of the estate, and he still retained that character WILLIAM* when he n-M that moiety for this sum of money to Mr. Snefl. There is no liability in Stevens against which the Appellant is bound to provide. Snett has taken the whole estate or tenancy with till its liabilities. He has, in fact, paid Stevens the snm of 578 for one moiety, \\hirh must be taken as its clear value, not- withstanding any liability. This sum was in law received by the Respondent on account of the Appellant, and, as the Appellant does not claim the annuity that was bought with it, she must have this sum, with interest, paid to her by the Respondent We shall, therefore, advise Her Majesty to order that tin- ment of the Court below be reversed, and that the sum of 4 . with interest at 5 per cent, from the 19th of November, 1859, be paid to the Appellant by the Respondent, together with her costs in the Court below and of this appeal. Solicitors for the Appellant : Jones, Blaadand, & Jones. Solicitor for the Respondent : George T. Woodrooffe. j. c THE REV. ANDREW MURRAY AND OTHERS . APPELLANTS; AXD No,. 10.12, 13. THE RE y THOMAS FRANCOIS BURGESS . RESPOM < 'X APPEAL FROM THE SUPREME COURT OF THE CAPE OF GOOD HOPE. Cape of Good Hope Dutch Reformed. Church Constitution of, under Ordi- nance* of 1843 and 1847 Proceedings against Minuter on charge* of falte doctrine* Synod Prrtbytfry. The Dutch Reformed Church in the Colony of the Cape of Good Hope is a voluntary society, constituted and subsisting by mutual agreement The regulation of its Ecclesiastical affairs depends upon contract ; and the autho- rity of its governing Bodies is derived wholly from the admission and agree- ment of the members, Ecclesiastical and lay, which constitute the Church or Society. This contract or agreement is embodied in certain laws and regula- Present: LORD WESTBUBT, SIB JAMES WILLIAM COLTILK, and SIB EDWARD UAK WILLIAMS. VOL. L] CASES IN THE PEIVY COUNCIL. ,363 tions, which were settled by Ordinance, No. 7, in 1843 ; and subsequently J. C. altered, in 1847, by virtue of authority contained in the Ordinance of jgge 1843. By Article 187, of the Ordinance of 1843, the Synod or General Assembly was organized, and made the sole and exclusive Tribunal for MURRAY the trial of charges of false doctrine against Ministers, By one of the BURGESS. alterations made in 1847, the jurisdiction and authority thus given to the Synod as a Court of first instance was transferred to the Presbytery, with an appeal to the Synod ; with liberty, where a case which concerns the welfare of the Church in general had been decided in the Superior Court, and, being capable of appeal, no appeal had been brought, for the Synod to take cog- nizance of it ; though incapable of exercising or enforcing an original or primary jurisdiction. So Held by the Judicial Committee, on the construc- tion of the Ordinances of 1843 and 1847, and the Laws and Regulations for the direction of the Dutch Reformed Church appended thereto, upon an appeal from a sentence of the Supreme Court of the Cape of Good Hope, in a case where a suit had been brought in that Court against the Members composing a Synodical Commission, to reverse and annul a sentence of sus- pension of a Minister of that Church pronounced by the Synod : Semble, that since the alteration made by the Ordinance of 1847, the Synod has no discretionary power of assuming primary jurisdiction in a charge of false doctrine against a Minister ; such charge must be made and determined in the first instance by the Presbytery. JL HE Dutch Keformed Church in South Africa is governed fun- damentally, by the Ordinance, No. 7, 1843, of the Governor and Legislative Council of the Cape of Good Hope, which repealed the Church Regulations of the 25th of July, 1804, emanating from the Commissioner-General of the then Batavian Government : and in detail, by certain laws and regulations originally contained in the schedule to that Ordinance, and since, from time to time, amended under a power of legislation given by the same Ordinance to the General Assembly of the Church, and limited only by the principles laid down in the Ordinance itself. * The Respondent was Minister of the congregation of that Church at a place in the Colony called Hanover. There are three grades of Courts in that Church ; Consistories, Presbyteries, and the General Assembly, also called the Synod, or, in years when the Synod does not meet, the Synodical Commission. Charges against the doctrine of Ministers were brought immediately before the Synod, or Synodical Commission, till the year 1847, when, by an amendment of the regulations, they were transferred to the Presbyteries in the first instance. A Synod of that Church met at Cape Town on the 14th of VOL. I. 3 2 E ' ; ;, ;l CASES IN THE PRIVY CO I N ;e 1 1 , [L. B. J.a October, 1862, and i t.. -u 1 Joubert, an 1 1866 the congregation of OoMberg, sent to tl> v ~ T w , ; .tli.- rflVrt that h". J<,ulrl. hud li. I; wus infrctnl with r;i- i, ami hal held a cert rsution r n such statement At the first meeting of the Synod, Joubert, being a member thereof, called its att the aforesaid statement ; and the Synod, on the 16th o: 1862, referred the same to a Committee, nominal. have been brought against the Synod and the members thereof. The Supremo Court, on the Gth of December, 1864, overrule' exception. l>ut hfld that the Synodical Commission ought to be Defendants, and gave the Respondent leave to amend his summons and declaration, and decreed the same to be served, when amended, severally and inli vidually on the members who constituted the Synodical Commission of the 16th of July, 18(>>. The Respondent amended his summons and de< ' and after some further litigation as to the necessary parties, which, resulted in the then constitution of the suit being sustained ju lament not now appealed from, the Appellants, on the 17th of May, 1865, excepted to the jurisdiction of th- Supreme Court, on the grounds, first, of an inherent spiritual authority alleged by th<- Appellants to reside in the Dutch Reformed Church, and to be beyond the cognizance of the Supreme Court ; and secondly, <>i' the 9th section of the Ordinance, No. 7 of 1843, which protects the Church judicatories in pronouncing spiritual censures for scandals and offences. The Supreme Court, consisting of the Chief Justice BeK, and Justices Cloeie and Water meyer, on the 27th of May, 1865, disallowed this plea ; and on the 30th of May, 1865, that Court having ordered to be struck out, as not forming part of the record in the cause, a certain document annexed to the Appellants' plea, as being argu- mentative, invWunt, and in breach of the 19th general rule of the Court, directed that the third ground, on which the Respondent prayed the judgment of the Court, namely, that according to the laws and regulations of the Dutch Reformed Church, as altered and amended in the year 1847, the Presbytery of Graaf-Reinet was the only Court competent to try the Respondent in the first instance, for or upon any charge against his doctrine, should be taken first in order, and on hearing the parties respectively on that ground alone, gave judgment for the Respondent in terms of tho declaration, tliat the judgment, or sentence, of the Synodical Com- mission of the 16th of July, 1864, was null, void, and further adjudged that the Appellants pay costs of the suit The present appeal was brought from the judgments of the 27th of May, and the 30th of May, 1865. VOL I.] CASES IN THE PRIVY COUNCIL. Sir R. Palmer, Q.C., Mr. N. C. Campbell, of the Scotch Bar, and J. a Mr. Wickens, for the Appellants : 1866 The principal appeal in this case is from the judgment of the MUBKAT Supreme Court of the Cape of Good Hope, overruling an exception BURGESS. taken to the jurisdiction of that Court, to the effect that the spi- ritual authority of the Dutch Keformed Church over its members was beyond the control, cognizance, or supervision of the Supreme Court. The Ordinance, No. 7 of 1843, declares the Dutch Reformed Church to be a Church exercising its discipline and government by Consistories, Presbyteries, and a General Assembly or Synod, and professing the doctrines contained in the Confession of the Synod of Dort and in the Heidelberg Catechism, and recognizes the General Assembly, or Synod, composed of all acting Ministers and Elders nominated by the Consistories, as the natural and proper Ecclesias- tical authority by which rules and regulations for the government of the Church in its spiritual affairs may rightfully be made. To this Ordinance are appended certain laws and regulations made by the General Assembly, or Synod ; but the Ordinance reserves to the General Assembly the power, from time to time, of altering those regulations, and making new ones, subject, however, to the condi- tion, that no rule or regulation shall be of force if inconsistent with or repugnant to the Ordinance. By the 9th section of the Ordinance in question, after enacting that persons giving testi- mony before any duly constituted judicatory of the Church, shall not be subjected to actions in the Civil Courts, it is further enacted that : " Nor shall any action, suit, or proceeding at law be instituted for the purpose of preventing any judicatory from pronouncing in the case of any scandal or offence which shall be brought before it, and proved to its satisfaction, such spiritual cen- sures as may in that behalf be appointed by the said Church, or for the purpose of claiming any damages or relief in regard to such censures, if the same shall have been pronounced." The power of altering the Regulations of 1843 has, from time to time, been exer- cised by the Synod of the Dutch Reformed Church, but no altera- tion has been made in this 9th clause. Now, it was against a sentence or judgment pronounced by a Court so protected that the suit in the Supreme Court was brought. We contend here, as was contended below, that according to the true construction of the CASES IN THE PRIVY COUNCIL. [L. B. J.O. OH i nance of ! n.l..l r -^ulaUons made under Ml 1847, the Synod of informed Chun-h of ti,nth Africa hadjuri*! pronounce the sentence of the ! .ly, 1864, in the first instance, and without any previous hearing, before the Presbyteryof GnM/--Bein<,oranyuthT inferior Court. Again, the sentence comj> by the App -Hunt, being a spin a >j.iritiml offence, against a member of the I' Reformed Church of South Africa, by t st .-j>iritual Court of that Church, is m.t liable to be altered, set aside, or impugned by a Civil Court, which the Supreme Court of the Cape of Good, Hope is exclusively : McMiUan v. The Free Church of Scotland (1), familiarly known as The Car dross Case; Forbes v. Eden (2); Long v. The Bisfiop of Cape Town (3) ; Warren t COM, in Grindwood's Compendium, and Smith's Hist, of Wr.-l.-yau Methodists. \Ve submit, also, that even if the objection to the Synod's j lictiou had any foundation, such objection was waived by th- spondent ; but we maintain, for the reasons already stated, that the judgment of the Supreme Court was contrary to law, and erroneous. That the Synod could have entertained the complaint made against the Respondent, and decided it by way of appeal, was not questioned by any of the Judges who delivered their opinions. Mr. Coleridge, Q.C., Mr. /. Fitzjames Stephen, and Mr. J". We$t- Idke, for the Respondent : The exceptions taken to the jurisdiction of the Supreme Court of the Cape were properly disallowed. The Dutch Reformed Church is not an Established Church, nor has it any power or jurisdiction in Ecclesiastical matters given to it by Statute, or otherwise, which can exclude the Civil Courts of the Colony from reviewing its proceedings. It is merely a voluntary associa- tion, and so designated and treated by the express terms of the Ordinance of 1843 : Long v. The Bislwp of Cape Town (4). But whatever may be its spiritual authority, it has no authority to yiolate its own laws. The 9th section of the Ordinance, No. 7 of (1) Court of Session Cases, vol. xxii. (2) Court of Session Cases, voL ir. (2nd Series), 290; S. O, yoL xxiii. (3rd Series), p. 143. P. 1 3M. (3) i Moore's P. C. Cases (N. S.) 411. (4) 1 Moore's P. C. Cases (N. S.) 461. VOL. I.] CASES IN THE PRIVY COUNCIL. 369 1843, gives no higher immunity to the proceedings of the judica- J. C. tory, duly constituted by the Church, than protection of the persons 1866 giving testimony before them, when in the exercise of their lawful MURRAY functions, from actions for damages, or against the proceedings themselves when strictly Ecclesiastical, and confined to Ecclesias- tical sentences, being interfered with by the Civil Courts. That is a very different question from the right to impose penalties as well as censures, and to interfere with the status and the legal rights of parties. Then as to the constitution of the Court which affected to try the Kespondent. It was a Synodical Commission, a Tribunal erected without authority, pro hac vice, for the special purpose of trying the Kespondent, over whom it had no authority or jurisdiction. The Presbytery of Graaff-Eeinet was the only Tribunal capable of trying such a question. It may be that, pre- vious to the alterations made in 1847, the Synod had jurisdiction in the first instance in a case of complaint against the doctrine or conduct of Ministers; but, by those alterations, jurisdiction over Ministers was expressly withdrawn from the Synod and given to the Presbytery. There may be an appeal to the Synod, but the only jurisdiction in the first instance is that of the Presbytery. It was justly said by one of the Judges in the Court below, that the question was not, as urged there, a matter of conscience. The ri.iiritiff complains to the Civil power, that his bread, his livelihood, his status in society, are about to be taken away. We submit, that any person, under such circumstances, is entitled to bring such an action as the present, and, adopting the judgment in the case of Long v. The Bishop of Cape Town(\), contend that suspension and deprivation are not matters of spiritual import, but matters subject to coercive judicial authority. We accept this reasoning, and insist that the judgment of the Court below must be upheld, and this appeal dismissed with costs. Judgment was reserved, and now pronounced by 1807 T KT LORD WESTBURY : The Kespondent is a Clergyman of the Dutch Keformcd Church at the Cape of Good Hope, and is the resident officiating Minister of the Church of Hanover in that Colony. (1) 1 Moore's P. C. Cases (N. S.) 466. CASES IN THE PRIVT COUNCIL. [L. R. Onth.- l:th of July, 1864,a decree of suspension was pronounced IM by a Sy nodical Commission, a< ; he General Assent MMUUT w Synod of the Church, h. Id at Cape Town in the year 18G4. which decree the Respond, nt. on tin- Around of errors in do, trine, .,1 t,, be mpOndtd liom Ins -a.-n-d imni-tiy until tin- next meeting of the Synodical Commission in tin- \.-.u- I - it was declared that the Synodical Commission \\<>nl>\ proceed to furthi-r judgment, unless certain things were in the meantime done by the Respondent ted the Respondent's civil or temporal rights, inasmuch as it involved the loss of some of the emoluments of the Respondent's office; and on the 30th of September, l.vil, ho lit an action in the Supreme Court of the Colony against the Moderator and some other of the members of the Synod to set aside the decree as illegal and void. The declaration in the action assigned several grounds or reasons- for annulling the decree, the third of which was in these words : " liecause, according to the laws and regulations of the Dutch Reformed Church, as altered and amended in the year 1847, the Presbytery of Graaf-Reinett was the only Court competent to try the said Plaintiff in the first instance for or upon any charge against his doctrine ; and because, therefore, the proceedings in his case, as hereinbefore set forth, were wholly irregular and ill- The Defendants took exception generally to the jurisdiction of the Supreme Court ; and, secondly, that the action was barred by the 9th section of the Ordinance, No. 7 of 1843, the decree com- plained of being a spiritual censure. The Supreme Court overruled these two exceptions, and gave leave to the Plaintiff to amend his summons and declaration by tfuUtituting as Defendants the members of the Synodical Com- mission who mode the decree complained of. From this Order there is no appeal. The Supreme Court then directed that the third ground stated in the Plaintiff's declaration (and which we have already stated) should be first taken and argued, and, after full consideration, the Court granted judgment for the Plaintiff, and held the decree of the Synodical Commission to be null and void. From this Order the present appeal is brought, and the sole VOL. I.J CASES IN THE PRIVY COUNCIL. 371 question is, whether the Synodical Commission had authority to J. C. try the Kespondent in the first instance, and to make the decree of 1867 suspension from the Ministry. MURRAY The Dutch Eeformed Church in the Colony of the Cape of . v - J . BURGESS. Good Hope is a voluntary society, constituted and subsisting by mutual agreement. The regulation of its Ecclesiastical affairs depends upon contract, and the authority of its governing bodies is derived wholly from the submission and agreement of the mem- bers, Ecclesiastical and lay, which constitute the Church or Society. This contract or agreement as now subsisting, is embodied in certain Laws and Regulations which, repealing former Regulations, were settled in 1843, and were afterwards, in 1847, altered in some material respects by virtue of an authority contained in the Regu- lations of 1843. These rules of 1843, under the title of " Laws and Regulations for the direction of the Dutch Reformed Church in South Africa" were set forth in a schedule annexed to an Ordinance or Statute enacted, in 1843, by the Governor of the Cape of Good Hope, with the advice and consent of the Legislative Council thereof, and it may be useful to state the 6th and 8th enactments of this Ordinance : " VI. And be it enacted that the said Dutch Reformed Church shall be and remain a Church exercising its discipline and govern- ment by Consistories, Presbyteries, and a General Assembly or Synod, and acknowledging, receiving, and professing, in regard to the doctrine thereof, the doctrines contained in the Confession of the Synod of Dori and in the Heidelberg/ Catechism ; and if any questions or divisions respecting church government, discipline, or doctrine, should hereafter arise between any members or reputed members of the said Church, or of any Congregation, Consistory, Presbytery, or General Assembly of the same, then those persons adhering to and professing, respectively, the said discipline and government, and the doctrines of the said Confession and Cate- chism, shall be deemed and taken, as against all persons who shall adhere to and profess any different discipline, government, or doc- trines, to be the true Congregation, Consistory, Presbytery, or General Assembly, as the case may be, of the said Church, and, as such, of right entitled to the possession and enjoyment of any CASES IN THE PRIVY COUNCIL. [L. B. J. a iJ, endowment*, or other property or right* by law belonging i-. :i,,. *ail Church, or to the Congregation, Consistory, Pro CIUT ton-, or Genera^Assembly, in which any such questions < * sion* shall have arisen." ^HBMML \ 1 1 1. And be it enacted, that no rule on > < : t In; said Church, \\hether contained in the schedule to this Ordinance or to be afterwards framed, shall have or possess any direct or inhei power whatever to affect, in any way, the persons or properties of any persons whomsoever. I'.. it all such rules and regulations shall be regarded in law in like manner as the rules and regulations of a m< intary association, and shall be capable of affecting the persons or properties of such persons only as shall be found in the course of any action or suit before any competent Court to have subscribed, agreed to, adopted, or recognised, the said Rules and Regulations, or some of them, in such manner as to be bound thereby in virtue of the ordinary legal principles applicable to cases of express or implied contract." The Laws and .Regulations for the direction of the Dutch Reformed Church, iu the schedule to this Ordinance of 1843, de- fine 1 the juristliction or right of Ecclesiastical cognizance that was to be exercised by the governing bodies of the Church, namely, the Consistories, Presbyteries, and Synod, or General Assembly. Gene- rally an appeal is given from the Consistory to the Presbytery, and from the Presbytery to the Synod : but certain subjects of complaint are appropriated to the jurisdiction or cognizance of the Synod or General Assembly in the first instance, and exclusively. Thus, by Article 187, it is directed that " the General Assembly, or, if it does not meet that year, the Synodal Commission, shall have the immediate management of charges against the performance of duty, the doctrine or the conduct of Ministers or Candidates, whether brought before them by information of one of the mem- bers, or by special indictment." This Article was followed by various regulations, prescribing the mode of proceeding to trial of charges against Ministers before the Synod, and also giving power to the Synod to inflict various punishments, or ** modes of reproof," of different degrees of severity. The Synod was thus duly or- ganized and made the sole and exclusive Tribunal for the trial of charges of false doctrine against Ministers. VOL. I.] CASES IN THE PRIVY COUNCIL. 373 In 1847 it appears to have been thought that this primary j. c. jurisdiction so given to the General Assembly, or Synod, in matters 1867 of heresy, was inconsistent with the cardinal principle embodied in MURRAY the Ordinance of 1840, that the Dutch Reformed Church should B * be and remain a Church, exercising its discipline and government by Consistories, Presbyteries, and a General Assembly, or Synod : and, further, that it was unjust, as it took away the ordinary right of appeal ; and, accordingly, in the year 1847, certain alterations (in due exercise of the power for that purpose) were made in the Ordinances of 1843. These alterations, so far as they are material to this case, con- sisted of an erasure or obliteration of so much of Article 187 as we have already cited, and of all the regulations relating to the procedure and the penalties or modes of reproof, in the case of trials before the Synod of charges against Ministers; and of an introduction into the Articles defining the jurisdiction of Presby- teries of the words " Ministers, Candidates," thereby making the Presbytery to which a Minister belongs, the Court, in the first instance, for the trial of its Ministers, on all charges relating to doctrine, discharge of duty, or conduct. All the Regulations ap- pended to Article 187 in the Ordinances of 1843, relating to the mode of procedure and power of punishing by the Synod, were written into the Articles that regulate trials before the Presby- teries. Thus a complete transfer of the whole of the jurisdiction and authority, given to the Synod as a Court of First Instance to try charges against Ministers, was made to the Presbyteries, with an appeal to the Synod. It is now contended, on the part of the Appellants, that there were certain provisions contained in the Ordinances of 1843, which were allowed to remain in 1847, and which now operate as an ex- ception to the rule introduced by the alterations of 1847, and invest the Synod with a discretionary power of still assuming and exercising, in cases of charges against Ministers, an original pri- mary jurisdiction. If this be so, the state of things would be extraordinary, and one likely to be attended with much incon- venience and injustice. Their Lordships find that the transfer of the primary jurisdic- tion from the Synod to the Presbyteries is clear and positive ; if in CASES IN THE JHUVX COUNCIL. [L. B. j. a any case* it is to be defeated by force of an exception, the exccp- 1M7 n must be equally clear. ^., 'ii'-r. it must be plainly seen that the clauses contains 1 in the Ordinances of 1843, and which operated by way of exception to the arrangeinii t tli* r< l>\ .ere also intended to operate by way of i \<-< ]>ti<>n to the new arrangement of j mad* by tin- al 1 -in 1847. The clause relied on by the Appellants, both lu-n- ami in the Court below, as constituting an exception to the rule thai sbytery shall have the sole primary jurisdiction, is the In' part of the 7th Article in the General Regulations contained in the first section of the Ordinances of 1843. For greater clearness it may be useful to cite the 6th and 7th Articles in extenso : " 6. In all cases decided by the sentence of a higher Church Court, the appeal must be made to the Court next following in rank ; but after being decided for the second time, no new appeal is admissible. - 7. The notice of cases prosecuted according to the preceding Article in appeal must be taken in regular order, and no cases be brought before the higher Court which first ought to have been decided in the inferior ones, unless, in the meanwhile, no int'--rior Court had been held, and the nature of the case required a speedier settlement. "All this, however, does not affect the right of the hL r hT Courts to take notice of cases, even without appeal, which concern the welfare of the Church in general, and come under its juris- diction." Having regard to the 6th Article, the 7th Article would seem to apply only to appeals actually brought, or that might be brought, and not to refer to original cases. With respect to the second part of the 7th Article, the meaning would seem to be this, that if a case which concerns the welfare of the Church in general, has been decided in an inferior Court, and no appeal is brought, the higher Court may take notice of it, pro- led it be a decision from which an appeal would lie to such higher Court, and so "come under its jurisdiction." This construction attributes to the words "cases even without appeal," the meaning of cases decided in an inferior Court, but not VOL. I.] CASES IN THE PRIVY COUNCIL. 375 appealed from ; and it gives to the following words of the first part J. C. of the 7th Article, viz., " and no cases be brought before the higher 1867 Courts which first ought to have been decided in the inferior ones," MURRAY the effect of prohibiting appeals at once from the Consistory to B v ' the Synod, passing over the Presbytery, unless the case be urgent, and no Presbyterial Court be shortly held, which would happen every fifth year when the Synod meets, for during that year no Presbyteries can be held. But the Appellants contend for a very different interpretation of the 7th Article. They insist that in the words cited above from the first part of it, viz., " no cases be brought before the higher Court," &c., the word " cases " means, or at least includes, original complaints that have not been brought before any Court ; and they contend, therefore, first, that any original complaint which ought to be regularly brought, in the first instance, before a Pres- bytery, may, in the year in which the Presbytery does not sit, be brought in the first instance before the Synod, if it be a case which required a speedier settlement than could be obtained if the next sitting of the Presbytery were waited for ; and of the fact whether it be such a case, the Appellants insist that the Synod is the sole and exclusive judge. The Appellants contend, therefore, that as the Presbytery of Graaf-Reinett could not be held in the year 1864, by reason of its being the Synodical year, the complaint against the Respondent was properly brought, in the first instance, before the Synod. If this verbal interpretation of the first part of the 7th Article were admitted to be correct, it would still be clear that Article 7, when originally composed and passed in 1843, could not have applied, and was not intended to apply, to cases like that of the Respondent ; for all complaints against Ministers for false doctrine could not, until the new law of 1847, be instituted in the Pres- byteries, but were reserved exclusively for the Synod, and their Lordships do not think that the just rules of construction would warrant them in giving to Article 7 a meaning and effect more extended and different than its original meaning and operation, so as to make the 7th Article an exception to the positive enactment introduced by the new enactment of 1847. The effect of doing so would be pro tanto to control and defeat the enactment that has, '6 CASES IN THE PRIVY COUNCIL. [L. It J. a without in cases against Ministers, transferred the 1-: primary jurisdiction from tin? Synod to ih- 1'r. -1. \tery. MIIUT " no ii"li'-ation of any intention iu tle framers of r 'mm. iterations of 1^17 th.it Articl.- 7 should apply to tl that purpose should have a wider .- >n than its original meaning. On the contrary, it seems plain that, by the new amended Ordinance, which repealed all the powers of punishment \\i were originally given to the Synod, and re-enacted those power favour of the Presbyteries alone, the Synod was entir.lv d.-pr. of the means of acting with effect as an original or primary Tri- bunal ; for acting in the first instance, it could inflict no penalty, and its sentence would have no result. :her. the rules of procedure before it as the primary and sole Court for trying charges of false doctrine, which were minutely prescribed in Article 187 of the Ordinances of 1843, are totally repealed by the enactment of 1847; and these circumstances appear to their Lordships to be evidence that it was the object and intent of the Ordinance of 1847 to strip the Synod absolu of all original jurisdiction in cases of charges against the doctrine or conduct of Ministers, and to reduce it simply in such cases to a Court of appeal. These observations would be sufficient, even if the language of the first part of the 7th Article admitted of the verbal interpreta- tion given to it by the Appellant. But their Lordships are further of opinion that such is not the true interpretation of the words. The 7th Article gives the rule as to bringing and hearing Appeals, and when, after directing that cases prosecuted according to the Cth Article in Appeal, must be taken in regular order, it goes on to direct that no cases be brought before the Higher Court which first ought to have been decided in the inferior, it seems I >lain that the words " no cases " mean none of the cases mentioned in the preceding part of the sentence, that is, none of the cases prosecuted in appeal. \Yith respect to the latter part of the 7th Article, the Appellants contended that it became and was applicable to the new Ordinance of 1847, and that when so applied it had the effect of saving to the Synod the right of trying, as a Court of First instance, cases VOL. I.] CASES IN THE PRIVY COUNCIL. 377 which concerned the welfare of the Church in general ; and that J. C. whether any particular case answered that description or not, the is<;7 Synod alone had power to determine. With respect to the words MI.-URAT " which come under its jurisdiction," the Appellants construe them B * as meaning, come under the jurisdiction of the Church. But the Church collectively, that is, apart from the Consistories, Presby- teries, and General Assembly, has no jurisdiction or means of jurisdiction under these Ordinances; and the meaning of these last words, although the expressions are inaccurate, seem to be necessarily this, viz., " which come under the jurisdiction of the Higher Court so taking notice of the case." But since the Articles of 1847, a complaint against a Minister for false doctrine is not a matter for the jurisdiction of the Synod, except by way of appeal from the Presbytery. Their Lordships are, moreover, of opinion that the better construction of the second part of Article 7 is, to hold that it is in simili materid with the first part, and that it relates not to original complaints, but to cases decided, and that have been, or might be, the subject of appeal. It is not, indeed, necessary to fix and declare the true meaning of the 7th Article. It is sufficient to shew that the language is doubtful and obscure; and if this only were established, their Lordships would be of opinion that it could not be used for the purpose of controlling and restricting the clear and absolute enact- ment contained in the Ordinances of 1847. That questions concerning doctrine shall be first tried by the Presbytery, and not by the Synod, is the positive rule enacted in 1847 ; and anything derogating from or taking a case out of this rule ought, in expression and intention, to be equally clear and certain as the rule itself. On these grounds their Lordships are of opinion, and will humbly report to Her Majesty, that the judgment of the Court below ought to be affirmed, and this appeal dismissed with costs. Solicitors for the Appellants : Williams & James. Solicitors for the Kespondents : Yenning, Naylor, & Robins. CASES IN THE PRIVT COUNCIL. fL. B. j.c.' THE <>\\M:I:S OP THE VESSEL SIN- , I.., BATOKE" }ATPELLATS; .\ THE OWNERS OF THE VESSEL "HEBE" . REM Till; - SINGAPORE " AND THE "ffl CoUitioii Judgment of High Court of Admiralty reverted Re-hear ing t/ appeal, petition for, dismissed. Judgment of the High Court of Admiralty in a cause of collision, which imputed mutual blame, and condemned each party in a moiety of the damage* and costs ; reversed by the Judicial Committee upon a review of the evidence and the opinion of the Nautical Assessors. A petition having been presented for a re-hearing of the ap|al, before the report of the Judicial Committee had been confirmed by Her Majesty in Council, which stated that evidence had been received at the hearing of the appeal which was not called for or produced in the Court below, and which tin- 1'eiitioner alleged contradicted the case made by the pleadings on both sides, was dismissed, the Judicial Committee, without deciding that they were not competent to grant a re-hearing, being of opinion, that the grounds relied on in the petition did not bring the case within any principle on which such an application could be supported. 1 HKKK \\t-ro two appeals in this case from the same sentence of the Judge of the High Court of Admiralty (the l{ij_'ht Honourable Dr. Lvshington), delivered in cross actions of damage, respect promoted by the owners of the Singapore against the owners of the Hebe, and by the Hebe against the Singapore, by which sen- tence that Judge pronounced the collision to be occasioned by fault of both parties, who were declared mutually to blame, and the damage arising therefrom directed to be borne equally by the owners of the Singapore and Hebe. The collision happened on the night of the 21st of September, 18G5, in the Bay of Biscay. The Singapore was a schooner, on her Toyage with a cargo from Singapore for Falmoutn, and the Hebe was a barque on her passage from Liverpool for Alexandria, with a cargo. * Pretent : LORD WESTBUBT, SIB JAMES WILLIAM COLVILE, and SIB EDWARD YAUGIIAS WILLIAMS. VOL. L] CASES IN THE PEIVY COUNCIL. 379 Both actions were heard together, the evidence being entirely J. C. oral ; but the Master of the Singapore, who produced the Log- 1866 Book of his vessel, in consequence of notice from the owners of THE the Hebe, referred to entries therein, which were initials in the " SlNGAPORE " AND German language, and had the appearance of having been altered ; THE "HEBB." translations, however, were admitted, and filed with the other evi- dence. It did not appear that any similar notice for the produc- 1 ion of the Log-Book of the Hebe had been given on behalf of the Singapore ; and the Log-Book of that vessel was not referred to or put in evidence. The learned Judge of the Court below, who was assisted by two of the Trinity Masters, expressed his dissatisfaction with the evi- dence produced, and the difficulty he felt in deciding to which witnesses the most credit was due; and was of opinion that, under such circumstances, there was no other mode of solving the case than by looking to the probabilities of it ; and ultimately declared that having, with the Trinity Masters, carefully considered the case, they had all come to the conclusion that both vessels were mutually to blame for the collision. An appeal having been asserted on behalf of the Singapore, and adhered to by the Hebe, the two causes now came on, and were heard together. The Queens Advocate (Sir R. Phittimore, Q.C.), and Dr. Tiviss, Q.C., for the owners of the Singapore: Repudiated the blame thrown upon the Singapore by the judg- ment of the Court below, and maintained that it was satisfactorily proved by the evidence that the collision was occasioned by the fault of the Hebe, and that it was impossible it could have been otherwise, the Singapore being close-hauled, and the Hebe running free, and the wind being proved, both by the witnesses and the Log- Book of the Singapore, to have been as pleaded in the preliminary Act, north-north-east, and not, as stated, but not proved, by the Hebe, north-west by west. Dr. Deane, Q.C., and Mr. Clarkson, for the owners of the Hebe : Argued, that the collision was caused solely by the conduct of the Singapore ; that the wind at the time was, as stated by the VOL. I. 3 2 F CASES IN Tin: ri:l\Y cm NVIL. I u. J. 0. Rel* pivlimiimry .V-t : tint tin* Log-Book of the Singapore In I, IMS ujK.n tli.- IJHV >! it. IM-I-M tani]MT.-d \\itli, and owl 1 not be relied on 7~ n of the a regarding the direction <,) ' ^ J M( J . an .j j n n , rr ,,| M . ration .! tli-ir view, i tli< first To -HIM.- time, the Log-Book of the Hebe. This was ol>j. t, ,1 to l.\ Counsel for the Singapore, and though not fonnally received, was handed in to th<- Committee. It was tli.-rein corroborate the stat< m< nt <>t' tli- u it nesses on behalf of the Hebe as to the direction of the \\ind being north-west The following judgment, uhich contains a full statement of the circumstances of the case, was delivered on behalf of th- ir ! ships by LORD WESTBURY : The case of the Singapore and the Hebe is one which has gi their Lordships some anxiety. The case itself is difficult ; and the embarrassment is still greater by the form in which it has been dealt with in the Court below. In a case of this kind, where the circumstances are so extremely conflicting, the only reasonable and <>ry mode of arriving at a conclusion is, by an analysis of the facts, to ascertain what is the principal fact or subject of inquiry upon which the case may be considered to hinge, and to endeavour to arrive at a satisfactory conclusion as to the testimony bearing upon that fact. Now, the case upon the part of each vessel is, that she was close- hauled and that the other was mnning free. That depends, of irse, upon the inquiry as to the direction of the wind. The dence as to the quarter of the wind is very conflicting, and part of it is open to the legitimate conclusions resulting from the nltera- : that has been made in the log. The case stands in this manner: The allegation on the part of thefliefctf is, that the wind was in the north-west; the allegation on the pert of the Singapore is, that the wind was in the north-north- east If tins wind was in the north-west, the H&e, whose course was south- west by west, was close-hauled and the Singapore was miming free ; if the wind was in the north-north-east, the Singa- pore, whose course was due east, with half a point, perhaps, to the northward, was close-hauled and the Hebe was ruimin^ free. VOL. I] CASES IN THE PRIVY COUNCIL. 381 Upon the examination of the witnesses on the subject of the J. C. direction of the wind, the Counsel for the Hebe called for the log i860 of the Singapore. The requisition was made with a view of testing THE the accuracy of the evidence given on the part of the Singapore. " SUJGAPOEI!; " Two or three witnesses had been examined on the part of the THE " HEBE." Singapore in addition to the Master. The Master kept the log. The Master in his examination in chief swore that the wind was north-north-east. His attention was called to the log, and, from an examination of the log, it appeared that the original entry in the log was that the wiud was in the north. That entry had been obliterated by another entry in a different ink, in which the direc- tion of the wind was indicated by the letters, N.N.O., which, being the initials of the German words, indicate that the wind was north-north-east. The witnesses on the part of the Singapore were examined, as indeed were the other witnesses, many months after the transaction. It is unreasonable to suppose that they could speak to the direc- tion of the wind purely from personal recollection. It is most reasonable to believe that they were shewn the log of the Singa- pore, with the direction of the wind entered as having been at the time of the collision north-north-east, and that it was used by them as a means of refreshing their memory, or rather of control- ling their recollection, and inducing them to state that the wind was north-north-east. Now, we do not in any manner intend to impute, either to the Master, or to these witnesses, an intention to deceive. It is, no doubt, of the highest importance that documents of this kind, having been originally drawn up in a given form, should have that form preserved, and that there should neither be erasure, oblitera- tion, nor alteration, subsequently made. It is admitted by the Counsel for the Singapore that the entry must be taken as it was originally, so that it would have been impossible for them to con- tend that the wind was north-north-east, seeing that the original entry was that the wind was northerly. Now, taking that fact, which is the plain result of the testi- mony of the log itself as against the Singapore, we have then to consider (as the Singapore's evidence must be considered as not evidence proving that the wind was north-north-east, but as her 3 2 F 2 CASES IN THE PRIVY COUNCIL. [L. R. J. C admission must be tak> n thit tli-- wind was north) we have to 1888 consider how the scale onght t<> turn, and whether the afiir- mativo evidence that that \\ind was north-west must not be accepted. It is desirable that it should be borne in mm-l that the log of the Singapore, per se, is not evidence of any fact for the Singa- pore. The log is a statement made by the Master of the Singapore at a time being contemporaneous with tin- cv.-ut. ami, therefore, more likely to be correct, and it is used for the purpose on! corn r tin:: a statement made at a subsoijii' nt tim . It corrects the evidence of the Master, and it reasonably accounts for til-- testimony of the man on board the Singapore. The Master says that the wind was north-north-east. It is corrected by this entry ; and, without for a moment supposing that the man did not ii/ to speak the truth, it reasonably accounts for the evidence of the man being in correspondence with the testimony given by the Master ; but if the one is contradicted by the entry, the same thing must apply to the other. It is not necessary to proceed upon an hypothesis that it was a fraudulent entry, or that the witnesses brought to support that entry on the part of the Singapore are witnesses who do not say what they believe to be the truth. On seeing the entry they might well have believed that the wind was in that quarter, and might be influenced by that entry, and so have given their t mony that that was the direction of the wint the* truth of the state- * Snwuiwui - |, e persons ou board the Hebe, that she did not starboard Ttu "Ho*." her h< 1m at all; lut the act that she did of porting her helm being close-hauled at so sh"it a distance from tip- Singapore, will ace- for all that follows, without the conclusion tlutt the Utbe htur- boarded In r helm ai.d ran in: tyapore. That l iiiir the state of the case, the next inquiry is, whether the Singapore was rijrht in U-ing in that j^sitidii in whii-h she is f wht-n the //-// in thi.s manner faun- into collision with h What was it the duty of the Singapore to have done under the circumstances? She admits that she saw the lights of the Hebe for some tin>> ly to the <-,.l!i~i. n. \\ e have found as a fact again>t h.-r that she was running bee. \\'- have found that h- r head was in th>- lin- -tion, as she herself says, of either east or half a point to tin- northwanl of east. Her plain duty under those circumstances was, as she must ha\r kno\\n. from the direction of the \\in-l, and the litrhts, that tlie Hebe was close-hauled; her plain duty was to have ported her helm, altere"iir_ r in th r quarter in which we find it proved to have been, and her cot ng such as she admits it was, it was plainly within her po as it was within her obligation, to have got clearly out of the course that was being pursued by the Hebe. Under those circumstances, therefore, their Lordships are of opinion that there is nothing in the facts, when thoroughly amine I, to justify the conclusion that the Hebe was wrong as well as the Singapore. They are not desirous that a judgment should be passed which imputes blame to either party, where the grounds on which that conclusion is arrived at were not stated. There is no statement of the grounds on which the learned Judge in the Court below arrived at that conclusion. We have endeavoured to state the grounds on which (coming to the conclusion that we have done about the uiiid) we have no difficulty in deciding the VOL. I.] CASES IN THE PKIVY COUNCIL. 385 case. We think the Hebe was right, and the Singapore was to J. C. blame. 1866 Their Lordships are of opinion, therefore, and will, in conformity, THE humbly advise Her Majesty to reverse the judgment, to reject the " SlN ^ OI5E ' petition of the Singapore with costs, and to award damages, to be THE "HEHE." settled and ascertained in the usual way by reference, to the Hebe, together with her costs of the suit, and her costs of this appeal. 1 HE Report of the Judicial Committee to Her Majesty, in accor- J. C.* dance with the above judgment, not having been presented, and no 1866 \*~j^S Order in Council issued in conformity therewith by Her Majesty, Dec. 8. the owners of the Singapore presented a special petition, addressed to the Judicial Committee, for a re-hearing of the appeal. This petition, after stating the circumstances of the appeals and judg- ment of their Lordships, whereby the owners of the Singapore were condemned in damages and costs, alleged " that during the hearing of the appeal the Counsel for the owners of the Hebe tendered to the Lords of the Judicial Committee present thereat a Book, described by him as the Log-Book of the Hebe, which Book the Lords were pleased thereupon to receive and examine, and subsequently commented upon, notwithstanding that the Book was not in evidence, neither in the appeals nor in the causes below, and also that the Counsel for the owners of the Singapore strongly opposed the reception of the same. That the Report of the Lords of the Judicial Committee to Her Most Gracious Majesty, in alter- in^ the decrees of the Court below in favour of the owners of the O Hebe, proceeded upon grounds inconsistent with the case made by them in their pleadings, thereby involving a departure from the ' rule of the Judicial Committee, as laid down in its decisions in other cases." And after stating that the Report of the Judicial Committee had not been confirmed by Her Majesty ; stated that the owners of the Singapore were resident in Bremen, in Prussia, and that the action was entered in the Court below against the Singapore and her freight, on behalf of the owners of the Hebe, the Petitioner prayed, that the Judicial Committee would be pleased to allow the appeals to be re-heard before them. * Present : SIR WILLIAM ERLE, SIR JAMES WILLIAM COLVILE, SIR EDWARD YAUGHAN WILLIAMS, LORD JUSTICE CAIRNS, and SIB RICHARD TORIN KINDERSLEY. ;;,; CASES IN THE PBIVY COUNCIL. [I* R j. a The Qtum'f Advoeat* llimore, Q.C.), and Dr. Twin, 1868 Q.C., for tlit- IVt it liners: ] ~ Tribunal has the same power of : j mistakes which 8nAiMn* jj are j )een ma( i. |, v misprision, or otherwise, in embodying TUB -HKBE." nient, as belongs by Common Law to Courts of Record. That has been decided after full argum- nt aii'l CHUM 1. -ration in the case of Rajundernarain Roe v. Bijai Govind Sing (1). I n that case all the authorities l..-arin^ on the subject were inve- and besides the case of Dumaresq v. Le Hardy (2), whi.-h. \\ith a: use, was referred to by Lord Brougham in his judgment, as instances of Hearings before the Privy < 'oiim-il, there is also a full collection of cases extracted from the Journals ot tin- House of Lords, where amendments, variations, and alterations, were allowed after the hearing of appeals by that House (3). Now, in nil these cases the judgment or decree had been confirmed or enrolled, but in this case no such confirmation has taken place. The judgment vh ifh was pronounced by the members of this Committee is still in the form in which it was delivered namely, the reasons which induce their Lordships to advise Her Majesty, and which the Act of Parliament (4 Will. 4, c. 41, s. 3) under which the Judi< ial Committee is constituted, requires to be given in open Court. Until the Order, which is framed in accordance with the judg- ment, has been signed and confirmed l.y H.-r Majesty in Council, there is really no final judgment; and if this Tribunal has the power of re-hearing, as the cases referred to shew it has, even \vhen the judgment has been confirmed by the Order in Council, it must have authority to do so before such Order has been made or issued. Now, that is the state of circumstances in this case. '1 here has been no Order in Council yet made or issued, con- firming the judgment of this Tribunal In Moiz v. Moreau (4), an application for the re-hearing of an appeal was under circum- stances somewhat similar to those we state in our petition, refused upon the ground only, that the documents objected to as improperly included in the transcript of the Record had not been objected to by the Appellants before the appeal, and had been referred to by them at the hearing of the appeal. The (1) 1 Moore's P. C. Cases, 117. (3) 1 Moore's P. C. Cases, 133 to p. 141. (2) Ibid. li:7. (4) 13 ibid. 398. VOL. L] CASES IN THE PRIVY COUNCIL. 387 Judicial Committee, however, did not in that case question their J. C. own power to admit the re-hearing of an appeal, but only refused 1866 it in the circumstances of the case. Now, we say that this Court THE is bound by the pleadings, and must proceed secundum allegata et " SlN ^, RE " prolate: The North American (1); The Ann (2). But the judg- THE "HEBE." ment pronounced by this Court in this case proceeds on grounds entirely different from those pleaded by either party. The alle- gation pleaded on the part of the Singapore, was, that the wind was north-north-east, and all the witnesses deposed to that being the true point of the wind. The Log-Book of the Singapore confirmed that statement. The allegation on the part of the Hebe was, that the wind was north-west. The Hebe produced no evidence in the Court below to rebut the allegation and proof given in by the Singapore ; but at the hearing of the appeal the Log-Book of the Hebe was produced for the first time, and, though objected to by us, was examined by the Court, and it seems apparent, from the want of proof in the cause, that their Lordships must have drawn their conclusion from the entries in that Book, and not from the evidence in the cause. The judgment of their Lordships assumes that it was proved by the Hebe that the wind was north-west, and that she had so pleaded, whereas the fact is, she pleaded and proved, so far as her evidence can be relied on, that the wind was north- west by west. We apprehend, upon the authority of Eajunder- narain Rae v. Bijai Govind Sing (3), as well as the undoubted power in this Committee to allow of a re-hearing before the final report and an Order in Council has been issued thereon, that, in the circumstances of this case, such re-hearing ought to be permitted. SIR WILLIAM EKLE: In the case of the owners of the ship Singapore against the owners of the Hebe, this petition is for a re-hearing of the appeal. An appeal was brought to this Court from the High Court of Admiralty, and when that appeal came 'before the Judicial Com- mittee, Counsel were fully heard upon it, and after such full hear- ing the Judicial Committee pronounced a deliberate judgment, (1) 12 Moore's P. C. Cases, 331. (2) 13 Moore's P. C. Cases, 198. (3) 1 Moore's P. C. Cases, 117. YOL 1. 3 L' U :;j5.x CASES IN THE PRIYY COUNCIL. [L. B. J. a slatinu' the reasons for th> ir decision, and the grounds upon whi'-h i-.v. p-p'.rt to Her Majesty would be t -, , \\ are now asked to order a re-h- u- ir Lordship's report - BoMArou- not |, av i n p as yet received the approval of Her Majesty in Couix il ; THI-HEB*." ami the first question is, whether it is within the competency of tin's ('..tin to make such an order? do not affirm that there is no competency in t rt to grant a re-hearing in any rose. \Ve find from the case of Rajvh- dernarain Roe v. Bijai Govind Sittg, reported in 1 Moore's I (,,--, 117. tint then mtj be . re-hearing t'"i- th. pm-p- - ,,\ making an alteration in the form of an Order. It was done so then*. | < 'oimnittee had actually derided on its report, and that report had been confirmed by the King in Council. In Lord Broughams judgment in that case, a number of instances are col- i- d. two in this (\,urt. and others in the House of Lords, she^ that there may be a re-hearing either for the purpose above men- tioned, or where the intention of the Court appears in the reasons given for their judgment, and that intention would be defeated un- less an alteration were made (1). There may be a mistake in the entry of the judgment, or the expressed intention of the Court may be defeated by defect of form in various ways, and where the Court sees clearly that, unless a re- hearing were granted, its intention declared in the report would be defeated, it is within the competency of the Court to grant it. This, however, is a Supreme Court of final appeal, and it is in. sistt nt witli the purposes for which such a Tribunal was instituted, that in any case, at the option of the parties who are diV with the conclusion which the Court has arrived at, they should be at liberty to apply for a reconsideration of the judgment upon the point dcci.K-J therein . Although it H within the competency of the Court to grant a re-hearing, according to the authorities cited above, still it must be a very strong case indeed, and coming within the class of cases there collected, that would induce this Court so uterfere. (1) See also The Montreal Assurance Order, for the purpose of carrying into Company v. M'GiBivray, from Canada, execution the intention of the Judicial in 13 Moore's P. C. Cases, p. 129, when Committee, an Order was made modifying a former VOL. I.] CASES IN THE PRIVY COUNCIL. 389 With respect to the petition now before us, it appears to their J. C. Lordships that the grounds relied on for the Petitioner do not 1866 bring it within any principle on which such an application can be THE supported, and, therefore, the prayer of this petition is refused. ' Sn ^p BE " For the satisfaction of the pa'rties we heard the grounds upon THE "HEBE." which the learned Counsel for the Petitioners desired to have the matter reconsidered : and although it is by no means essential to the decision we have come to, their Lordships give me authority to add, that they have considered the arguments so addressed to them, and having compared the statements in the plea of the owners of the Hebe with the reasons given in the judgment of the Judicial Committee, they see no reason whatever to be dissatisfied with the grounds of that judgment as stated in the report which has been already decided upon. The petition is dismissed with costs. Proctors for the owners of the Singapore : Dyke & Stokes. Proctor for the owners of the Hebe : C. Waddilove. . JAMES GEORGE AND ANOTHER APPELLANTS ; j. c.* AND 1866 THE QUEEN AND JOHN SHAW RESPONDENT?. ZfcTiu ON APPEAL FROM THE VICE- ADMIRALTY COURT OF SIERRA LEONE. Sierra Leone Revenue laws, breach of Proceedings in rem Penalties- Security for costs Appeal in forma pauperis. Decree of the Vice-Admiralty Court of Sierra Leone in a proceeding in rem, for breach of the revenue laws of the Colony, condemning the goods seized, and the owners in penalties, reversed by the Judicial Committee so far as the penalties were concerned, with costs, it appearing that though the claim of the owner of the goods was rightly rejected, because he failed tc comply with the rule of the Vice-Admiralty Court requiring security for * Present : SIB WILLIAM EBLE, SIR JAMES WILLIAM COLVILE, SIB EDWABD VAUGHAN WILLIAMS, and SIB RICHABD TOBIN KKDEBSLEY. VOL. I. 3 2 H OASES IN THE PRIVY COUNCI I , [L. B. J. a **** y** tluit och rol tli, entitles us t .it now, and that the Committee will -i\. it . Hut then- are <>tl:-r ilj<-etions whieh r< n'l-r tin- jula-.-. th- /uro was made, as the Monition expressed, for breach of Ordinance passed on the 16th of March, 1 -itl--L. II. J. 0. in this same Order in Council of the 13th of February, 1849, which 1806 declares all Laws repugnant to that Order to be v<>i n..t . nl. it.iin any <-! th-s" ol.j.-rtinns, and 1866 not be understood to have given any opinion upon their vali-i fl,^, non-validity. The appeal IB & matter between the parti--. tho Appellant, Gtorye, and the Kespondents; and our judgm- limited to tho rights Tested in that A]-;><-llant, and the rights rested in him are limited in tho manner already described. Another point has been pressed upon us tho hardship o; ease upon the Appellant, George ; but it is obvious that that could have no influence upon our decision. In the enactment of the revenue laws for the j -n of smuggling, the Legislature may very well have intended that in a proceeding tn rem, in which every one who has any interest is summoned to come forward and make his claim, the right of every person so to come forward should be subject to some degree of re- striction. It may be very reasonable that there should be security for costs, because it might be, that, [unless there was a power to require such security, the revenue could not be collected. But, whatever the reason may be, we must take the law as it stands, and we are clearly of opinion that the law as it stands authorized the Judge in the Court below to pronounce the judgment he did ; that unless the Appellant, George, gave security for the costs, he ought to be excluded ; and our judgment is that his claim, not being admitted in the Court below, the objections^made to the sub- sequent proceedings cannot be maintained on this appeal. The result is, that their Lordships will recommend to 11- r Majesty to dismiss the appeal, so far as regards the condemnation, that is, the judgment in rem, without prejudice, however, to any question in any other proceeding affecting the validity of such condemnation, as to which their Lordships, for the reasons already given, pronounce no opinion. And their Lordships will humbly advise Her Majesty to reverse that part of the decree which con- demns the Appellant, George, in the penalty of 300, with the costs of this appeal, and further to remit the cause. Solicitors for the Appellants : Messrs. Hampton & Burgin. v Proctor for the Respondent : F. H. Dyke, Her Majesty's Procu- rator-General. VOL. L] CASES IN TEE PKIVY COUNCIL. In re HEKBEBT'S PATENT. J. 0.* 1 Q&7 Letters Patent Assignment of moiety Petition by Patentee and Assignees for ex- ^^, tension of term Death of Patentee before hearing Non-user a presumption Feb. 1 , 2. against utility Prolongation to Assignees in trust as to Patentee's moiety ,/or his Executrix and Residuary legatee. Petition for prolongation of term of Letters Patent by Patentee, together with the Assignees of a moiety of the Patent. After the presentation of the petition, and before the hearing, the Patentee died, having by his Will ap- pointed his Widow Executrix and Eesiduary legatee. Extension granted to the Assignees on condign that they held the moiety of the Patent in trust for the Widow of the Patentee. If an invention has not been brought into practical use during the term of the Letters Patent, it raises a strong, though not conclusive, presumption against its utility ; and unless there are circumstances to rebut such pre- sumption, an extension of the term of Letters Patent will not be granted. The fact of a Patent of a valuable nature, but having a limited market, not having been so generally used as to remunerate the Inventor, is sufficient to remove the presumption against the utility of the invention. IHE Petitioners in this case were the Patentee, George Herbert, and Messrs. Newall & Co., Assignees of a moiety of the Patent rights. The petition stated that Herbert, previously to the grant of the Letters Patent, had, after considerable personal application and cost, invented certain "Improvements in constructing and mooring light-vessels, buoys, and other similar floating bodies," for which he obtained Letters Patent, dated the 6th of April, 1853, which invention was of great utility and great public benefit. That the invention consisted principally in the constructing light- vessels, and also buoys and such like floating bodies, with bottoms of a concave or conical shape formed in such manner that mooring chains might be attached to them at or near the apex of the cone- shaped bottom, and at or as near as may be to their lines of floata- tion, and, where convenient, at or as near as may be to their centres of gravity. That the invention had introduced very great improvements in buoys which were previously in use, and the use of buoys, made according to the invention, had been attended with results of the utmost importance. The advantages which * Present : SIB WILLIAM ERLE, SIB JAMES WILLIAM COLVILE, SIB EDWARD VAUGHAN WILLIAMS, and SIB RICHABD TOBIN KINDEBSLEY. HI . -; .< IN TIM: ri:ivv OOUW n.. buoys made according to the invention had orcr buoys wl i - ' were previously in use, were that, from their peculiar const /* n they preserved an upright position in nil circumstances, and allowed ^V "'* ^ ^* e moor i n g chains being so attache 1 to them that tin -y n be moored in exposed positio no other buoys which wuM afford equally conspicuous and visible sea marks could possibly be secured. That light-vessels, or floating li_r I it-houses, made accord- ing to the invention, had also great advantages over any oth< r kind of IL'ht-vess.-ls; th.-y e..uM be made much more steady, and exhibit lights of a higher order than any other, and could be securely moored in any required position, and even in tho open ocean; which advantages were most important, and, when pro- perly recognised by Official authorities, would revolutionise the existing system of Light-houses and vessels, and introduce a far safer and better system of lighting the approaches to our coasts, which would confer great advantages as well on this country as on the Maritime world at large. That the advantages arising from the manufacture and mooring of the Petitioner's buoys were being practically tested by Official authorities ; the buoys being used by the Trinity Board where they required buoys to be moored in very exposed positions, and such buoys had been and were exten- sively used by the Mersey Dock and Harbour Board, by the Indian Government, and by the Governments of France, Spain, Russia, and Holland, by tho African Company for the purpose of buoyin_ entrance to the lliver Bonny, and by others. That the Petitioner, Herbert, had sold one moiety of the Letters Patent to the other Petitioners, Messrs. Newatt & Co., for the sum of 1,000, and that the Petitioners had a reasonable expectation that if the term of the Letters Patent was prolonged, the Patentee would eventually re- ceive remuneration for his outlay, and for the time and attention he had devoted to the introduction and working of the invention, and the other Petitioners, Messrs. Newatt & Co., would also be remune- rated for the assistance and co-operation which they were prepared to give in bringing the invention into general use ; that the pay- ment of the sum of 1,000 to the Petitioner, Herbert, only partially covered the expenses which he had previously incurred, and that as the Petitioners had not as yet received any adequate remuneration, and the merits of the invention had only recently become recog- VOL. L] CASES IN THE PKIVY COUNCIL. 401 nised by Official boards, the Petitioners prayed for a prolongation J. C. of the Letters Patent for an additional term of fourteen years. 1SG7 After the petition was presented, the Patentee, Herbert, died, j nre having by his Will appointed his Widow Executrix and Besiduary legatee, whereby she became the sole person interested in the undisposed moiety of her late husband's Patent. The fact of the death of the Patentee having been stated, and probate of the Will produced, their Lordships permitted the hear- ing to proceed without requiring a supplemental petition at that stage of the proceedings; but directed, in case a prolongation should be granted, that sufficient proofs should be afforded to enable the recital of the death and bequest to be inserted in the preamble of the Letters Patent. Evidence of the meritorious nature of the invention was given, and of the efforts made to bring it into general use, and of its adoption by the Trinity Board. It appeared from the accounts, that, with the exception of the sum received for sale of the moiety, the Patentee had derived no benefit from the Patent in consequence of the limited demand for the invention. Mr. Grove, Q.C., and Mr. Aston, for the Widow and Assignees : No similar case has occurred in which a Petitioner for a pro- longation of the term of his Letters Patent has died pending the hearing. Here the Assignees of the moiety of the Patent are strictly the only Petitioners before the Court. The Widow of the original Patentee is, however, willing that, if an extension of the term be granted, it should be exclusively to the Assignees, as she has perfect confidence in them ; or that there should be a declara- tion that they hold a moiety in trust for her. With regard to the merits, it is evident that from the peculiar nature of the invention it must have a limited market, and great prejudice, and distrust, has existed against the Patent, which pre- vented it getting into general use, so that, practically, no profit has as yet been made by the Patentee. The accounts of the Licensees, as required by the rule laid down in Trotmans Patent (1), and Mallet's Patent (2), though shewing the sum of 400 as paid for royalties, is, in reality, a mere trade profit. (1) Law Rep. 1 P. C. 118. (2) Law Rep. 1 P. C. 308. CASTS IN Till: 1'KIVY Cnr.NCII.. [L. B. J. a Mr. Hanntn, for the Crown : Admitted the merit and utility of the invention, and, allowing the accounts to be correct . Kit it to thrir Lordships to determine i PATTM whether there should be any, and what, prolongat SIB WILLIAM ERLE : In this case their Lordships will report to Her Majesty that there should be some extension of term granted to the proprietors of this Patent When the case was first opened some of th.-ir Lordships were of opinion that it would fall within UK- principle of the case (1) which had been decided just previously, namely, that if a patent invention has been brought fully before the attention of those who are interested in its use and application, and that for fourteen years the Patentee has had the exclusive right to the Patent, at the end of that term (the privilege being somewhat in the nature of a contract with the public), they should have the power to use the Patent. An extension of the term, in fact, being the taking away from the public that which is in the nature of a contract between the Patentee and the public. But the full in- vestigation which the present case has undergone has led their Lordships to the conclusion that there are material differences between this case and the one just decided, which prevent the application of the same principle. This is an invention which has a very limited market ; it is only wanted where man has to contend with the wind, and the waves, and the tides, in a floating position. It has a very limited applica- tion with respect to one part of the invention which has been most brought to our attention by the evidence to-day. I mean its appli- cation to floating light-ships, where the use of this invention, as contemplated by the Patentee, namely, affording a safe guide to (1) His Lordship alluded to Clifford?* Simister'g Patent (4 Moore's P. C. Patent for "Improvements in appa- Cases, 164); Wright's Patent (1 Web. ratus for lowering Boats evenly, and Pat. Cases, 576), where it was held, preventing them filling with water." that the fact of an invention, when There was no point in that case re- known, not getting into general use is, quiring a report. An extension of unless explained away, an objection to the term was refused, on the grounds the extension of the term, stated by his Lordship. See also VOL. I.] CASES IN THE PEIVY COUNCIL. 403 navigators in the night, by carrying lights at fixed places at sea, J. C. though of easy, must be of careful trial, depending on experiment 1867 and experience before it would be found capable of answering the j n re purpose which the Patentee contemplated, and for which witnesses EERBEBT'S of great experience and knowledge on the subject have told us they considered it is applicable. Their Lordships have instructed me to say, that they are of the same opinion which this Committee has expressed in former cases, namely, that an extension should be refused where an invention had never, during the space of the fourteen years for which it had been patented, been brought into practical use. Such want of user raises a strong presumption against the utility of the in- vention ; not that such non-user creates a definite rule, but a pre- sumption so strong that, unless there are circumstances to rebut it, if the invention has never been brought into practical use during the space of fourteen years, then we think no extension ought to be granted. Now, this invention has not been generally, or even much used, and there is room, therefore, for a like presumption; but, giving full attention to the evidence adduced, their Lordships are of opinion that that presumption is rebutted by the circumstances of the limited market and demand for such an invention ; and by the difficulty of getting experiments made at nighiwith floating lights. Several of the witnesses, however, who have been examined, Ad- mirals of Her Majesty's Navy, and others accustomed to the sea, are confidently of opinion that the principle of the invention can be applied with safety. Therefore, however cautious we should be to form any opinion ourselves upon its practicability, we cannot but think that that which is calculated to resist successfully the power of the winds and waves during the daytime, when the experiments have hitherto been made, will be equally useful for the purpose when applied to light-ships by night, for which it is contemplated. Although the application of the Patent may not come within the province either of those who approve the original grant or recom- mend the extension, yet if^the Patent is extended, as the Patentee will have a right to it for any purpose whatever, it is impossible not to see that this invention may be brought into very important and useful application in the way suggested, namely, as night guards to shipping in narrow entrances to our Channels, many of .jo I CASES IN Tin: PRIVY CO! -\< II. [L. It. ^. C. thorn thronged with Commercial shipping ; and no one who is 01 1867 conversant with ill-- litigation n :' accidents from lisions in those Channels, can fail to appreciate the advantage whi< 1 1 gnch MM invention ns this may prove i hipping iiit-rert. t r nn the invention, they are of opinion that the extension shouM be granted for a period of five years. s however, important that the legal advisers of Mrs. Herbert, and the other parties concerned, should come to some arranger upon the subject, so that ln-r interest should be protected, and 1 In- form of our recommendation be adapted to the arrangement made between th- There should be legal security for the owner of the one moiety of this Patent, as against the owners of the other moiety. Mr. Grove : There is no objection on either side to your Lord- ships granting an extension of the Patent to the Assignees, mal , it a condition that the Assignees hold a moiety for the representa- tive of tin i'.it utee; that will be sufficient in equity. Solicitors for the Petitioner : Wilson, Bristows, & Carpmad. Solicitors for the Treasury for the Crown. VOL. L] CASES IN THE PKIVY COUNCIL. JAMES WILSON AND WIFE, AND WILLIAM) J-C. COLE . | A ppELLAKTS ; 18GG v^-y"*' AND Dec. 10, 11. THE QUEEN AND JOHN SHAW KESPONDENTS. ON APPEAL FROM THE VICE- ADMIRALTY COURT OF SIERRA LEONE. Seizure of goods for breach of Customs Ordinances Restoration without damages or costs Probable cause for seizure certified by Judge Practice Costs Appeal. Appeal from a decree of the Vice-Admiralty Court of Sierra Leone, restoring property seized for breach of the Customs Laws, but without damages or costs, the Judge below being of opinion, that there was probable cause for the seizure; dismissed by the Judicial Committee with costs: their Lord- ships being of opinion : (1) that as regarded one of the Appellants, who proved not to be the owner of the goods, though so proceeded against, the appeal was for costs alone, and, therefore, could not be entertained ; and (2) that it appearing from the evidence that there was probable cause for the seizure, the Judge of the Vice- Admiralty Court was justified in refusing to decree damages and costs to the other Appellants, the owners of the goods seized. The case of Xenos v. Aldersley (1) referred to, and the criterion there applied in considering whether there was probable cause for seizure, recognised and approved. J. HIS was an appeal from a decree of the Deputy Judge of the Vice-Admiralty Court at Sierra Leone, made on the 8th of August, 1865, whereby certain goods, consisting of two barrels of rum, which had been seized by the Respondent, Shaw, the acting Collector of Customs at Sierra Leone, for an alleged breach of the Customs Laws, were ordered to be restored, as not liable to forfeiture and condemnation, but there appearing to the Deputy Judge (Mr. George W. Nicol) probable cause for the seizure, he refused to condemn the Seizor in damages or costs. The two barrels of rum were the property of the Appellants, the Wilsons, having been purchased by Sarah Wilson, who traded on her own account, from the Appellant, Cole, in whose name they * Present: SIR JAMES WILLIAM COLVILE, Siu EDWARD VAUGHAN WILLIAMS, THE Loan JUSTICE CAIRXS, and SIB RICHARD TOBIN KINDERSLEY. (1) 12 Moore's P. C. Cases, 359. VOL. I. 321 Jn.; GASES IN THE PRIVY COUNCIL [L. R. were bonded in the Customs' warehouse at Freetown, in th i- Colony. \s~ : . The seizure was made on account of the temporary removal of t r ,, the barrels from the public wharf (the Colonial Statute prohibiting such removal without the authority of the Customs), where tlx-y were left to be shipped in a canoe, then 1 yin^ at anchor outside the harbour, and to which place they had been restored, the removal having, as it turned out, been made without the authority or knowledge of the owners or the Appellant, Cok. The usual proceedings having been taken in the Vice- Admiralty Court, an affidavit of claim was brought in on behalf of the App--l- lants, the Wilsons, from which it appeared that the Appellant, Cole, had no interest in the goods seized, having sold them to Sarah Wilson, in whose custody or possession they in fact were at the time of the seizure. The Deputy Judge, however, thought that the evidence was conflicting, and declined deciding the case on the affidavit of claim, but, in accordance with the practice of the Vice- Admiralty Courts, ordered a Libel to be brought in by the Seizor. A Libel was accordingly brought in by the Seizor against Cole alone, the Wilsons, the real owners of the property, not being named. The cause was proceeded with by plea and proof, evidence being produced and witnesses examined, when the Deputy Judge, at the hearing, dismissed the Appellant, Cole, from the cause, and, by an interlocutory decree, pronounced that the two barrels containing rum were not liable to forfeiture and condemnation, as prayed ; but there appearing to him to have been probable cause for the seizure thereof, he refused to condemn the Seizor, Shaw, in costs. The Appellants, Wilson and wife, and Cole, asserted an appeal from this decree. They appealed from so much of the decree of the Court below as refused damages and costs to the Appellants, and prayed that that portion of the decree might be reversed, and that the damages and costs sustained by them in consequence of the vexatious and illegal seizure and detention of the property in question, and of the proceedings taken against them, might be pronounced for, and the Respondent, Sliaw, the Seizor, con- demned in all losses, damages, and costs arising from such seizure and prosecution. VOL. L] CASES IN THE PRIVY COUNCIL. 40' JVIr. Edmund F. Moore, Mr. Rainy, and Mr. Pater, for the Ap- J. C. pellants. 1866 v^v-x The Queens Advocate (Sir ft. Phillimore, Q.C.) and Mr. Hannen, w^- 80 * for the Respondents. THE QUEEN. It was contended, on behalf of the Appellants, that the seizure of the two barrels of rum by the Respondent, Shaw, was vexatious, and without probable cause ; and that the decree of the Vice- Admiralty Court was not only contrary to the evidence, but also erroneous, inasmuch as both the Seizor and the Deputy Judge had dealt with the Appellant, Cole, alone, upon the assumption that he was the owner of the property seized, and had ignored altogether the other Appellants, the Wilsons, who had appeared in the suit as Claimants of the two barrels of rum, and, in their affidavit of claim, had asked for damages and costs for the wrongful seizure thereof, the property being proved and admitted to be solely theirs. They insisted also that the expenses and losses had been very much in- creased by reason of the Deputy Judge having directed proceedings to be taken by Libel and Plea, there being abundant proof from the affidavits in reply to the affidavit of seizure, of the Appellants', the Wilsons', right to the property seized. As to the allowance of an appeal for refusing to give damages and costs on restoration, they cited The Ostsee (1). The Respondents, on the other hand, contended, first, that the evi- dence was sufficiently conflicting to justify the Judge in the Court below directing the cause to be proceeded with by Plea and proof ; and, secondly, that there was probable cause for the seizure, and that the Judge was, therefore, justified in refusing damages or costs, under the 312th section of the Statute, 16 & 17 Viet. c. 107, which pro- vides, that, in suits on Seizure, the Judge may certify that there was probable cause, and they insisted that there was no authority in the Vice-Admiralty Court to award damages to the Appellants. They, moreover, maintained that the appeal on the part of Cole was an appeal solely for costs, the admittance of which was contrary to the uniform practice of this Court, and, therefore, ought to be dismissed : Attenborough v. Kemp (2) ; Richards v. Birley (3). (1) 9 Moore's P. C. Cases, 150. (2) 14 Moore's P. C. Casts, 331. (3) 2 Moore's P. C. Cases (N.S.) 96. 3 212 408 CASES IN THE PRIVY COUNCIL. [L. I: LORD JUSTICE CAIRNS: ls ' Their Lordships in this case have beard a in.inl- r of ques QK argued at much greater length than cith.-r tl< -ir important difficulty would have justified; but they have done so out of ten- derness to the Appellants, lest any point deserving of notice should ithout argument With regard to one of the Appellants, Cole, it was attempted to maintain his right to appeal, on the ground that, although be had been absolved from penalties in the Court below, he had not been award- -d the costs of the proceeding against him. Their Lordships are of opinion that, with regard to the Appellant, Cole, the appeal is strictly and simply one for costs, under circumstances in which their lordships have at all times laid down as a rule, that an appeal fur costs could not be entertained. With regard to the Wilsons, the question which they have ra is this, that although the property which they claim to belong to them was returned, no damages were awarded to them for seizure and detention of their property. That question, again, has given rise to a number of other ques- tions, which we have to dispose of. In the first place, it was con- tended, on behalf of the Crown, that the Wilsons were limited in their argument by the nature of the appeal asserted on the face of the proceedings below ; the proceedings below stating that the appeal asserted was merely an appeal on the ground of costs. It was argued also, on behalf of the Crown, that if that were not so, at all events, the citation which proceeded from this Tri- bunal was a citation which indicated an appeal on the subject of costs, and of costs alone. Their Lordships, however, think that the appeal having been asserted in the Court below, and proper security having been given, it would not be right to limit the appeal to the precise matter of appeal which appears to have been stated on the minutes of the proceedings below ; but that those who had asserted the appeal, and had given security, are entitled to be heard upon every question which could properly be alleged before their Lordships, by way of appeal. And with regard to the citation, their Lord- ships are of opinion that the citation does nothing more than recite the decree which had been made in the Colony, and that it VOL. I.] CASES IN THE PRIVY COUNCIL. 401) in no way limits any right of appeal which, otherwise, the Appel- J. 0. lants would have been entitled to. 1866 The objection next argued on behalf of the Eespondents was, YV'ILSOK that the Judge of the Vice- Admiralty Court of Sierra Leone TUE ^ ^ having made the statement on the Record, that there had been probable cause and sufficient ground for the seizure, the Statute, 16 & 107 Viet. c. 17, sec. 312, rendered that statement of the Judge a bar to any claim for damages, either in these or other proceedings. Their Lordships, however, are of opinion that, assuming that Statute to apply to the Colony of Sierra Leone (a point upon which their Lordships do not offer any opinion), the section contemplates an indorsement upon the Record in some proceeding in which the verdict of a jury has been rendered, for the purpose of being used in other proceedings, and not, as in this case, in the proceeding itself. It was then contended, on behalf of the Crown, that there could not have been in the Vice-Admiralty Court any jurisdiction to award damages to the Wilsons in this case. Their Lordships, in the view they take of the remainder of the case, do not think it necss- sary to do more than to take notice that this question has been argued before them, and to say that the damages appear in other cases to have been awarded by a Court similarly situated to the Vice- Admiralty Court of Sierra Leone, and their Lordships, there- fore, do not entertain any doubt that there would have been a want of jurisdiction to award damages if it had been proper to do so. The remaining question in the case, and the one which has occupied the greatest length of time in discussion, is the question of fact whether there was or was not probable cause to warrant the Collector in seizing these goods. Now, after looking at the minutes of the proceedings, their Lordships have considerable doubt whether the right to damages on the ground of the non-existence of probable cause was con- tended for on behalf of the Wilsons in the- Court below ; but here, again, they give the Appellants the benefit of the doubt, and assume that the point was made in their favour in that Court. But their Lordships propose to adhere to the rule which was laid down at this Board in the case of Xenos v. Aldersley (The Evangelismos) (1), (1) 12 Moore's P. C. Cases, 359. 410 CASES IN THE PRIVY COUNCIL. [L. B. with reference to the criterion to be applied in considering \\h< tin r ;- thore has or has not been probable cause for seizure. It is true WOJOM th*t WM ^ ca8e f t ^ 10 cwuro of a ship upon an allegation of a ,._ ,', damage sustained by a collision; but tin- ]>riuciple which is there laid down is, in their Lordships' opinion, applicable to the case now before them. Their Lordships there said, we think : ' There is no reason for distinguish in^ this case, or giving damages. y there maybe cases in which there is citlur mala fdf$ or that craua negligentia, which implies mali< v, which \\ouM justify a Court of Admiralty giving damages, as in an u : brought at Common Law damages may be obtained. In the Court of Admiralty the proceedings are, however, more conve- nient, because in the action in which the main question is disposed of, damages may be awarded: The real question in that case, following the principles laid down with regard to actions of this description, comes to this is there, or is there not, reason to say, that the Action was so unwarrantably brought, or brought with so little colour, or so little foundation, that it rather implies malice on the part of the Plaintiff, or that gross negligence which is equivalent to it ?" Now, applying this rule, and simply dealing with the evidence which is given by two of the witnesses of the Appellants them- selves, their Lordships are of opinion, that the evidence given by those witnesses discloses a state of facts which not only affords probable cause for the Collector seizing the goods in this case, but which would, in their Lordships' opinion, have made it a dereliction of duty on the part of the Collector if he had refrained from seizing the goods, until explanations were offered such as have been deemed satisfactory by the Court in this case. Their Lord- ships, therefore, upon this simple ground, will recommend to Her Majesty to dismiss the present appeal, and to dismiss it with costs. Solicitors for the Appellants : Hampton & Burgin. Proctor for the Kespondents: F. E. Dyke, Her Majesty's Procurator-General. VOL. L] CASES IN THE PRIVY COUNCIL. 411 BARTHOLOMEW CONRAD AUGUSTUS > j. c * ( APPELLANT; GUGY 5 1866 AKD Dec. 14,15. WILLIAM BROWN . RESPONDENT. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA. iLower Canada Old French Law Judgment "avec depens" Costs Taxation Attorney acting in his own cause, right of, to Fees. By the old French Law prevailing in Lower Canada, an Attorney acting as such in his own cause, and on his own behalf, is entitled under a judgment in his favour " avec depens" upon taxation of costs, to the same fees as are allowed by the tariff to Attorneys in all ordinary cases. So held by the Judicial Committee on appeal, overruling the judgment of the Court of Queen's Bench (on the appeal side) in Lower Canada, and the authorities relied on by that Court for a contrary rule. J. HIS was an appeal from a decree of the Court of Queen's Bench for Lower Canada, on the appeal side, dated the 19th of December, 1862; which reversed a judgment of the Superior Court of the District of Quebec, of the 2nd of November, 1861, pronounced by a single Judge on a motion made by the Appellant to review the Prothonotary's taxation of a Bill of costs under a prior judgment of that Court awarding him costs generally, " avec depens" The question raised and adjudicated upon in the Court below was, whether the Appellant, who was an Advocate and Attorney of the Courts, having been a party litigant, and having appeared personally in Court, and conducted his own case, was entitled, under the last-mentioned judgment, with reference to the practice and procedure of the Courts in Lower Canada, to have allowed, on the taxation of costs, against the opposite party (the Respon- dent) certain fees, charged by him in respect of services rendered to himself, as such litigant, in his professional character of Attor- ney. The Taxing Officer disallowed those fees; but the Judge of the Superior Court, to whom the matter was referred by way of * Present : SIB JAMES WILLIAM COLVILE, SIB EDWARD VAUQHAN WILLIAMS, .and SIB RICHABD TOBIK KINDEKSLEY. 412 CASES IN THE PRIVY COUNCIL. I I. J. C appeal, allowed thorn. The Court of Queen's Jfc-nch, on the appeal 1886 of the Respondent against that Order, reversed the same, ado; O^ri the view taken by the Taxing Officer, and affirmed his Order made on taxation. It was against that decree that the present appeal was in.-t 'tut The facts were not in dispute ; and those necessary fur the con- sideration of the question wer% as follows: On the 5th of January, 1859, the Respondent, by a judgment of tht : Court at Quebec, recovered against the A j>p I hint, in an action of debt, the sum of K>G curr< n-y, \\ith interest and costs. On the 24th of IVbruary, l.sV.i, a writ of Fieri facia* was issued out of that Court against the goods and chattels of the Appellant, addressed to the Sheriff of the district of Quebec, an 1 authori. him to levy a balance under the judgment, remaining unj>;ti'l. r. turn of the Sheriff indorsed on tin- writ shewed that the goods and chattels were seized by him, under the writ, l>nt that he had been prevented selling the same by reason of a proceeding taken by the Appellant, described as his " opposition afin d'an- nii7/er." This opposition was dismissed with rosts. A writ of venditioni exponas was then issued to the Sheriff to sell the goods and chattels so seized. The Sheriff announced the sale, but afterwards made a return to the Court, stating that he > prevented from proceeding to a sale by reason of another "opposition afin d'annuUer" brought by the Appellant. On the -Ith of September, 1861, the hearing of the last men- tioned opposition took place before the Judge of the Superior Court (Mr. Justice Taschereau), when he delivered judgment, wherein he stated as follows : " Considerant que le Demandeur en ne dormant pas credit au dit Opposant du paiement de la dite somme de vingt-nevf louis quinze clielins a agi ccntrairemeiit a ce quil devaitfaire, la Cour maintient la dite opposition afin d'annuUer du dit Opposant, avec depens contre le Demandeur, &c. &c." Under this judgment, the Bill of costs in question was subn: ; to the Prothonotary and Taxing Officer by the Aj-pellant, who, on the 2nd of October, 1861, recorded the following minute and order in taxation of the Bill:" The Opposant, Bartholomew C. A. Gvyy, Esq., having presented his Bill of costs upon the foregoing judgment for taxation, he being the Attorney exercising that office for him- VOL. L] CASES IN THE PRIVY COUNCIL. 413 self only, wherein he claims to be allowed the sum of 10 as and for J. C. Attorney's fees in the said cause; and also another fee of 1. 10s. 1866 upon the defence en droit therein adverted to, to both of which u^y the Plaintiff, by his Attorney, objecting, considering the ruling of gJ^N Her Majesty's Court of appeals, bearing date the 7th of May, 1861. No. 873. Gugy, Appellant, and Ferguson, Eespondent (1), as follows : that is to say, * With costs to the Appellant in this behalf as well in the Court below as in the Court here, in the taxing whereof no Attorney's or other fees upon any of the proceed- ings on hearings had in either Court shall be allowed to the Appel- lant by reason of his being a practising Attorney, and of his having personally conducted his own defence.' It is considered and or- dered that the sums respectively of 1. 10s. and 10 be, and they are hereby severally disallowed, the said Opposant baing a prac tising Attorney, and having personally conducted the proceedings in the said cause to which the said Bill of costs relates; therefore, the rest and residue of the said Bill of costs is hereby taxed and allowed at the sum of three pounds fifteen shillings and nine-pence currency (3. 15s. Qd.), and no more." The two items thus dis- allowed were described in the Bill of costs as fees on defense en droit, 1. 10s. ; Attorney's fee, 10. The Appellant appealed from this Order to the Superior Court at Quebec, and prayed that the above taxation might be annulled, and the Prothouotary's decision reversed, and that the fees al- lowed by the tariff and rules of practice of the Court be allowed to the Appellant, upon the judgment in his favour. On the 2nd of November, 1861, the Judge of the Superior Court at Quebec (Mr. Justice Taschereau) delivered judgment in the appeal, and therein stated as follows (2) : " Considerant que la taxe faite par le Protonotaire du dit memoire de frais est erronce et con- iraire au tariff de cette Cour, en ce que le dit Protonotaire a retranche du dit memoire de frais les lionoraires dus au dit Opposant sur le prin- cipe que le dit Opposant, qui est un Avocat et Procureur pratiquant devant cette Cour, a lui-meme signe son opposition et Ta lui-meme conduite a jugement ; considerant quen loi un Avocat a le droit de conduire lui-meme sa defense devant aucun Tribunal et d'exiger les lionoraires qui sont le juste salaire de ses troubles et vacations, et qu'en (1) 11 Low. Can. Reps. 420. (2) Ibid. 485. CAM.S IN Till: I'KIYY (T)fNCII.. [L. B. J. r. cda Ja portion de ion adversaire ne rqoii aueun prejudice, mainiient la dito motion, d ordonne qu'il soit d il est par ces presents accorctt au dit Opposant uns samnu de onM6 louis dix chelins pour ses hono- raires sur Ja conduits de son opposition, en sus des autres items formant son memoirs defrais, mats sansfrais sur la dite motion" Til,- IJ.'-poitdriil aj.j- ;tl. <1 iV.'lii this d.ri>i<.n t> th-- a].j al H'!-' of the Court of Queen's Bench for Lower Canada. The hearing of the appeal took place before the Justices Aylwin, Msrediih, Monddet, Berthelot, and BaJyley, and on tin- Huh of De- cember, 1862, the judgment of the majority (Mr. Justice MondeJet dissenting) was delivered, to the effect that, as by law and practice no fees could be allowed to Counsel and Attorneys in cases in \\ ' tlii-y act as Attorneys of Record in the cause, there was error in the judgment of the Superior Court at Quebec of the 2nd of November, 1801, l>y \\liich the Appellant had been allowed costs in his favour, and it was ordered and decreed that the judgment be reversed, set aside, and annulled; and it was also adjudged that the J'.ill of costs, by which the sum of 11. 10s. currency was allowed, be rejected, and that the taxation of the IVothonotary be affirmed, with costs to be borne by the Appellant, and the Record was then directed to be remitted, in order that what law and justice might require under that decree might be done in the premises. The judgment concluded by stating that, on the motion oi Attorneys of the Respondent the Court granted them " distraction de depens in this cause." The Appellant applied for, and obtained leave to appeal to J i - r Majesty in Council from this judgment. The Appellant, Mr. Gugy, appeared in person : First, The appeal in this case was improperly entertained by the Provincial Court of Appeal, the appellate side of the Court of Queen's Bench. That Court has no jurisdiction to hear an appeal from the Superior Court when the amount in controversy is less than 20. The Canadian Statute (Consolidated Statutes Lower Canada, ch. 77, sec. 23, p. 648-9) enacts : " That an appeal shall lie to the Court of Queen's Bench as a Court of Appeal and Error, from any judgment rendered by the Superior Court for Lower Canada, in any district, in all cases where the matter in dispute VOL. I.] CASES IN THE PEIVY COUNCIL. 41/> exceeds the sum of 20 sterling, or relates to any fee of office, J. 0. duty, rent, revenue, or any sum of money payable to Her Ma- 1866 jesty, or to any title to lands or tenements, annual rents, or like Q I . GY matters or things, where the rights in future might be bound, although the immediate value or sum in appeal is less than 20 sterling." Now, here the sum at issue was only 11. 10s. Cana- dian currency, between 9 and 10 sterling. It is true that the majority of the Judges of the appeal Court held that the judgment complained of related to a fee of office, and was, therefore, within the exception provided for in the Act, and they held that the lan- guage of the judgment of the Superior Court, " Considerant qu'en loi un Avocat a le droit de conduire lui-meme sa defense devant aucun Tribunal" &c. &c., warranted such conclusion. But I maintained there, as I do here, that fees of office mean official fees strictly and literally, and not the charges allowed to Attorneys for conducting their clients' or their own affairs. The appeal arises out of the words " avec deepens contre le Demandeur" in the judgment of the 4th of September, 1861, which awarded costs against the Kespon- dent. But the Respondent did not appeal from that judgment, and is, therefore, bound by it. Now, fees are a part of the costs which were given by the judgment; the Taxing Officer, however, refused to allow the fees in question, referring to, as his authority, the case of Gugij v. Ferguson (1) ; there the order expressly directed that no Attorney's or other fees upon any of the proceedings should be allowed to the then Respondent, by reason of his being a practising Attorney, and of his having per- sonally conducted his own defence. These were the special terms of the Order, and, apart from the legality of such direction, which I question here it being part of an Order of the Court unappealed from the Taxing Officer was bound to carry it into effect, but it formed no authority or decision on the subject, and was no warrant for such Officer, in a totally different and distinct case, determining the meaning of " avecjiepens" and thus constituting himself into a Court of appeal from the judgment of the Superior Court. There was another objection, which was also urged below, and was referred to by Mr. Justice Hondelet, who all along dissented from the other Judges, namely, that the case on appeal was merely (1) 11 Low. Can. Reps. 409. 410 CASES IN THK PBITY COUNCII [L.R. j ,-. OM <: tax it; ; , nd ii' t i :-ai!i-t fa jud -I., nt pnftfag oosts, and \ppellant's claim to particular fees could not arise on an appeal, a ground of objection which I to have been hold fatal to the ap|>eal below. Assuming, however, that the ques- :i regarding th-s- items of costs is fit' for decision here, question is, first, what law is applicable to the case; and, secoix how does such law apply. With regard to the first point, t! can be no doubt that the oil Fr.-n<-h la . is the law which must govern the decision, for though there are many Acts among Canadian Statutes relating to costs, and regulating the tariffs thereon, there is no Act which has prohil-it' <1 an Attorney fr receiving fees for conducting his own case. According to the old law of France, Attorneys could at all times conduct their own cases: Piyeau, Procedure Civile du Cluitelet; De T Instruction, liv. ii. part ii. [Ed. Paris, 1779]. This is a work of the highest autho- rity on practice. Le Parfait Procureur par Pierre Ne el Du Tom. ii. par. ii. [Ed. Lyons, 1705]: another authority of equal value. In France, th> .I;id_ - formerly assumed so much lutit in dealing with costs, and so much partiality in giving or with- holding them, that man - and Ordonnances were promul- gated for the special guidance of the Courts on the question of costs: Ordonnance of 1GG7, Tit. 31, art. 1, "Des depens" which but re-enacted a previous and very old rule: La pratique judiciare, dc., de M. Imbrit, par M. Pierre Guenoir et M. Bernard Automme. Tit. " De la Condamnation dts depens, taxe liquidation d'icenx" p. 334 [Ed. Paris, 1623]. There are other Ordinances of earli-T dute to the same effect, which are o md commented on in the same work, as those of diaries IV., 1324 and diaries VIII., '3. Contrary to the rule that nothing could be granted w 1 had not been claimed at the hands of the Court, i; v :hat the unsuccessful litigant should be condemned to pay costs, i withstanding the omission of a conclusion to that effect. A jr. it w ithout a condemnation to pay costs \ :ed so iniquitous, that the Judge who pronounce 1 it was himself held liable for the amount : Conference de Bornier, Tit. 31, " Des depens " [Ed. 1729] ; Le Nouvreau practicien Francais par Remi Gastier, Tit. " De la taxe depens" p. -H.ni [Ed. Paris, KJO.J] ; La Jurisprudence du Code Ji titan, conferee avec les Ordonnances Royaux, les Contumes de France, VOL. I] CASES IN THE PBIVY COUNCIL. et les Decisions des Cours Souveraines, &c., par M. Claude de Ferrier, .1. 0. Liv. vii. torn. 2, 'p. 193 [Ed. Paris, 1684]; Serpillon Commentaire 1866 sur TOnlonnance de 1667, tit. 31, " Des Depens" p. 563 [Ed. 1776], ^ Y Such being the old law of France, the question is, has the Statute U U O WN - law of Lower Canada introduced or enacted any alteration. Now, I contend, that there are no statutory provisions in the law of Lower Canada which prohibit Attorneys from conducting their own causes, nor is there any tariff of fees which excludes fees payable and allowed to Attorneys, even in cases in which they act as Attorneys of Record in the cause on their own behalf: Consolidated Statutes, ch. 83, p. 752 ; authorizing Judges to make a Tariff of fees. This appears from the cases extracted from the Records of the Courts, and are unimpeachable ; there are instances, ranging from the year 1839 to 1857, of Attorneys being allowed and receiving fees as such, in cases in which they personally conducted their own causes, and it was not until the year 1861, in a case in which I was interesterl, that for the first time it was made part of the Order for costs that my fees should not be allowed, by reason of my being a practising Attorney, and of my having personally conducted my own defence : Brown v. Gugy (1). Upon the authority of that Order the Taxing Officer refused to allow my fees. In the judgment in that case, Mr. Justice Duval relied chiefly on the authority of Jousse, citing the 2nd vol. of his Justice Civile, p. 460, No. 38. That passage, however, applies not to the Attorney, but to the Avocat, who, by the old law of France, could not recover his fees, though he might damages, by action. But the law is inapplicable, if an Avocat is a Procureur, as in Lower Canada, where every Attorney is also an Advocate. In the case of Gugy v. Fergusson (2), which was before the full Court on the appeal side of the Court of Queen's Bench, the law, as well as the reason of the case, is so ably stated by Mr. Justice Mere- dith, that I crave leave to use his judgment as my argument; he says (3), " As to the question raised in this case, and in several others, whether an Attorney conducting his own case can recover fees in the same way as if he were acting for another person, I must say that it has presented some difficulty to my mind. The tariff under our Statute, as has been remarked, is made for Officers of (1) 11 Low. Can. Reps. 408. (2) Ibid. 409. (3) Ibid. 417. 418 CASKS IN THK I-KIVY mi NCII. [L.B. the Court ; it may, therefore, be said, that if an inniuM> that th> 'mt is an Attorney, an*! that ho has i formed certain services in this cause, for which, wh- med by an Attorney, the tariff allows certain fees, and I really ca; see anything in law, or in reason, to prevent the Defendant, an Attorn, y. from rcc. iring the fees usually incident to the services which he so performed. If the objection urged again-' lant be well founded, it ought to have as much weight in Enyl as it has here ; and yet we know it would not be maintained t The rule on this subject is, ' tlmt whore an Attorney is a party to an action, and obtains a judgment in his favour, he is entitled to the same costs as if he had conducted the action as Attorney for some other person, and not merely to the costs which anot' son suing or defending, in person, would be entitled to : ArchbohTs Prac, vol. i. p. 48 ; and in support of this opinion Archbold there cites several cases. The French authorities are divided on the point. Serpfflon, p. 565, declares that even a private individual gaining his own cause is entitled to full costs; whereas Jousse i of a con- trary opinion. The practice in this country may, I think, be to be in favour of the Attorney. The Prothonotary of the Superior Court, an Officer of great experience, informs us that in the time of Chief Justice Sewdl fees in such cases were not allowed, but in the time of Sir James Siuart the practice was to allow them ; that the last-mentioned practice has continued ever since;' and he gives a note of four cases (1), in which Attorneys appearing in their own cases have been allowed their fees. Under these Circumstances, I think it doubtful whether any change in the practice as to this matter ought to be made ; and that if a change was determined on, it ought to be made so as not to affect pending cases. Indeed, it would seem to me hardly just, that an Attorney, (1) No. 1417 of 1857, PenOand and which may be added Circuit Court, Smith; No. 1959, Stuart and Miller; No. 1025, 28 June, 1851, Cannon v. Xo. 214?, Pentland and Bell, 1859; Hemlcy, also cited No. 2133 of 1856, J147, Penifrn'? and Bell, 1859 ; to Allen and Gilbride. VOL. L] CASES IN THE PRIVY COUNCIL. having conducted his own case to the close without any objection J. (J. on the part of his antagonist, or of the Court, should be informed, i860 at the last moment, that he could not legally do that which he actually had done, with success, in the presence of the Court. I, therefore, think the Appellant ought to have his costs." It is true that the majority of the Judges in that case were of a different opinion, and .the result was there, as here, that the Attorney was refused his costs. But the reasoning of the learned Judge is so pertinent and forcible that I rely upon it as the strongest authority I could produce in my favour. Mr. Leith, for the Kespondent : The objections to the jurisdiction of the Court below on the ground of value, and that the judgment for costs was not appealed from, but only the Order on taxation of the Officer of the Court, were disposed of conclusively by the Court of appeal, that when fees of office were in contest, the rule regarding the appealable value did not prevail in the Court of Queen's Bench in Lower Canada, had already been decided in the case of Chalot v. Sewell (1), and an appeal allowed to Her Majesty in Council in the former case of Brown v. Gugij (2), in which the order regarding costs was similar to that made here. The present Appellant was then Eespondent, and had applied for and obtained from the Court below leave to appeal from that part of the Order refusing him his costs as Attorney in his own cause, but as he did not prosecute his cross appeal, no decision on the point was pronounced by this Court. Now, the learned Judges of the Court of Queen's Bench in Lower Canada have very ably and very fully stated the law in the reasons they have assigned for their judgment, one of whom was Mr. Justice Meredith, whose opinion in Gugy v. Ferguson (3) has been so much relied on. Mr. Justice Mondelet, though he took a different view of the law from the other Judges, did not deny the correctness of the statements regarding the practice of the Courts, both of Quebec and Montreal, being against the Appellant's claim. The sole question, then, is, whether by the law and practice in Lower Canada, fees can be allowed to Attorneys in cases in which (1) 1 Low. Can. Reps. 466. (2) 2 Moore's P. C. Cases (N. S.) 341. (3) 11 Low. Can. Reps. 409. .j -jo CASES IN THE PRIVY COUNCIL. [L. R. J. c. they arc parties in the cause, and act as Attorn* vs. Now, I admit HH that thin question is one for uhi< h t!i- r- is not any express pro- " T vision of law; but it is utiu1>tl tint tin-re have been no less than four derisions of tin- Courts in Lower Canada din < -tlv bear- ing on the .- CJtabot v. SeweH, air- -ady re fern d to ; tl; case on appeal here of Brown v. Guyy, win n- the present .\\\< 1- lant brought a cross appeal on the very same grounds as he appeals ro now, but did not prosecute it. an- lislud, which has since been varied and extended im ler the Lower Canada Statutes, 41 Geo. 3, c. 7, and the 48 Geo. 3, c. 22. Under these Acts the tariff of costs as to Attorneys is laid down. No fee is allowed to any party not an Attorney, either as a Plaintiff or De- fendant, acting in person. An Attorney must, ex necessitate, be a person employed by another: Spelman, Gloss. Archteologicnm, voce "Atturnadts" defines an Attorney, "qui aliena negotia ad mandatum Domini administrat" '; and he refers to Berault, Com- ment, de la Contume reformed de Normand. e. 58!'. Mr. Ju- Badgley, in the reasons given by him for his judgment, in this appeal, puts the case of the " inscription en faux" and the " dis- traction de depens" both peculiar to the law of Lower Canada, as illustrating the impracticability of an Attorney being entitl< d to fees as such when acting in his own cause. In the former case he would require a procuration from himself, and in the latter, the costs being adjudged, according to the practice of the Court, (1) 11 Low. Con. Reps. 409. (2) Ibid. 484. VOL. I.] CASES IN THE PEIVY COUNCIL. 421 to the party in the cause, would be claimed by the Attorney, to J. C. whom they are never eo nomine given ; and he cites Pothier, Traitt 1866 du Contrat de Mandate, No. 135, vol. 4, tit. 10, and relies on the Q VGY tariff of fees originally established by the Ordinance of 1667, and 3^^. prevailing and in force in the Lower Canada Courts. So far as the decisions in the Courts of Lower Canada go, the result of them is decidedly against the Appellant, and even Mr. Justice Meredith, whose judgment he cites and relies on in Gugy v. Ferguson, was one of the Judges composing the majority in the case we are now arguing, and concurred with the law as laid down and commented on by the two other Judges who decided the case with him. Upon all these grounds, I submit, that the decree appealed against was just and proper, under the circumstances of the case, and with reference both to general principles of law, and the established practice and rules of procedure of the Courts of Lmver Canada. Judgment was delivered by 1867 SIR EDWARD VAUGHAN WILLIAMS : .!_ ' This case is an appeal from the decree of the Court of Queen's Bench for Lower Canada, dated the 19th of September, 1862. By this decree a judgment, dated the 2nd of November, 1861, of the Superior Court of the District of Quebec was reversed. That judgment was pronounced by a single Judge (Tasehereau) on a motion made by the present Appellant to review the Prothono- tary's taxation of a Bill of costs which had been submitted to him to be taxed by the Appellant, under a prior judgment of the last- mentioned Court upon a proceeding called " an opposition," award- ing him costs as against the Respondent generally, by the words " avec depens." The question, and the only question, raised and decided in the two Courts was, whether the Appellant, who was an Advocate and Attorney duly admitted therein, and had ap- peared personally in Court and conducted his own case as Attorney on record, was entitled under the said judgment to charge in his Bill of costs, and to have allowed, on the taxation thereof against the Respondent, certain fees claimed and charged by him in respect of his character of Attorney. Judge Tasehereau decided in the affirmative ; the Court of Queen's Bench in the negative. VOL. L 3 2 K ;__ GASES IN THE PKIVT COUNCIL. [L, B. The- r deciding this question, as it was said by La Fan- 1 tatne, C.J., in Brown v. Gugy (1), most be furnished by reference to the French and n >t t . t ho English law, because the then exist- liJLft*. ing French law was dominant in Lower Canada when it was con- quered in IT.**!), and consequently that law continues to be dominant there, subject to any alterations which have been introduced by Legislative Acts, or other competent authority. It is necessary, therefore, to inquire what the old French law was, with reference to this subject On behalf of the Appellant several authorities were cited, the princijuil of which are, "Le Par/ait Procureur" (1>), Pigeau, Fer- riere, and Serpitton. These are for the most part stated in Appellant's case, and referred to by Mr. Justice Taschereau in 11 Lower Canada Reports, 484-485. And their Lordships are of opinion, in accordance with the opinions of Mr. Justice Meredith and Mr. Justice Taschereau, that the passages ^cited from these Books constitute a preponderance of authorities in the French law for allowing fees to an Attorney who appears as such in his own case. But it was argued for the Respondent, that the old French law has, at all events, been displaced by modern author! :' B, It is certainly true that although in the case which is the subject of appeal, when in the Superior Court of Quebec, Judge Taschereau adhered to the old French law, and decided the case accordingly in favour of the Attorney's claim (11 Lower Canada Reports, 483), yet on three earlier occasions the Court of Queen's Bench decided the contrary, in disregard of that law, and held that an Attorney conducting his own case is not entitled. Two of these cases were decided by a majority of three to two Judges in Brown v. Gugy (3), and Gugy v. Ferguson (4) ; and a third case of Fowrnier v. Cannon was cited by Mr. Justice Meredith in his judgment in the present case, in which he himself and all the other Judges of the Queen's Bench appear to have concurred. In the judgment now under appeal, Mr. Justice Meredith, although he thought it right to agree with the majority of the Court, declared that his own contrary opinion (expressed in Gugy T. Ferguon) still remained unchanged ; and Mr. Justice Mondelet (1) 11 Low. Can. Reps. 407. (3) 11 Low. Can. Reps. 401. (2) Ed. 1705. (4) Ibid. 409. VOL. IJ CASES IN THE PEIVY COUNCIL. 423 agreed in that unchanged opinion, and differed from the other J. C. Judges of the Court. 1867 v *~ v "*' Mr. Justice Aylwin appears to rest his judgment mainly on the GUGY argument that the tariff gives fees to Attorneys only, and thus in BROWN. effect denies them to parties who are not Attorneys, and that a person who appears in person cannot call himself an Attorney. In answer to this it may be observed, that an Attorney who con- ducts his own case, and describes himself on the face of the pro- ceedings not as a party suing or defending in person, but as Attorney on Record, accepts by that very act all the duties and responsibilities which the practice of the Court imposes on Attor- neys acting for ordinary clients. Mr. Justice Meredith founds his judgment merely on the propriety of a Judge's deferring to the authority of adjudged cases. Mr. Justice Badgley, in substance, takes the same view as Mr. Justice Aylwin, with the addition that he relies on the circumstance that in the case of an Attorney ap- pearing for himself, inasmuch as in the proceeding by way of " inscription en faux," the law requires a special procuration from the party to his Attorney, as the foundation of the proceeding, there would be an absurdity in taking such a special power of Attorney from a man to himself; and further, that the proceeding by way of " distraction et depens " would not be practicable, because the occasion for it could never arise. But their Lordships are constrained to observe that they cannot understand how these are good reasons for disallowing to the Attorney his fees for sevices performed in the cause as an Attorney. It will be observed that in no one of these judgments is there any dealing with the authorities cited on behalf of the Appellant from the old French law Books in favour of the Attorney's right. The Judges do not at all deny that there are such authorities, or attempt to distinguish them. Mr. Justice Duval alone, in his judgment in the earlier case of Brown v. Gugy, says that the opinion of SerpiUon on this point is of little weight, being founded on faulty reasoning only, and quotes a passage from Jousse, as to the rights of Avocats, as a conflicting authority. But Mr. Justice Meredith observed (1), "That authority (Jousse) is not applicable here in Canada, where Advocates are also Attorneys. (1) 11 Low. Can. Reps. 412. 3 2 K 2 r_M CASES I I 'IETVY COUNCIL. [L. B. It must bo recollected that in France tho right of action for fees 1M7 was not only ni> <1 t Advocates, but such as claimed them were ~v struck from tin- I lolls." And this appears to be the only au: rity which has been cited on behalf of the Respondent from the French law Books in denial of tin- Attorney's right to fees. "With ivspect to the argument founded on ifTof fee-. Court of Queen's Bench of Lower Canada is authorized by sev Statutes to make and establish Tariffs of fees for the Counsel, Irocates, and Attorneys practising therein. But the ol> of such a Tariff appears to us to be, not to confer fees on any one, or to deprive any one of them, but simply to fix the amount of thorn for particular services done by such officers. If at the time of making the Tariff an Attorney acting for himself in a cause was, according to the authorities cited l>y the Appellant, rut to such fees as would have been payable to another Attorney acting on his behalf, it surely was not meant by the Tariff to alter the law, and deprive him of such fees altogether, but merely to regulate the amount to be paid to him. On this point th-ir Lordships concur with the view taken by Mr. Justice Meredith in Gugy v. Ferguson (1), where that learned Judge says, u It is un- deniable that the Appellant is an Attorney, and that he has per- formed certain services in this cause for which, when performed by an Attorney, the Tariff allows certain fees ; and I really cannot see anything in the law, or in reason, to prevent the Appellant, an Attorney, from receiving the fees usually incident to the services which he performed." But it is intimated in the judgment of La Fontaine, C.J., in Broicn v - &ugy> *&& asserted in the judgment of Mr. Justice Aylwin in the present case, that the practice has been to disallow fees to Attorneys conducting their own cases. And if this practice had been shewn to be uniform and long-established it would certainly have gone far to prove that the old authorities were not to be relied on. J!nt there appears to be some mistake on this subject; for it is said by Mr. Justice Meredith, in Gugy v. Ferguson (1), "The practice in this country may, I think, be said to be in favour of the Attorney. The Prothonotary of the Superior Court, an Officer of (1) 11 Low. Can. Reps. 418. YOL. I] CASES IN THE PRIVY COUNCIL. 425 great experience, informs us that in the time of Chief Justice J. c. Sewett fees in such cases were not allowed ; but that in the time of 1867 Sir James Stuart the practice was to allow them ; that the last- Q^T y mentioned practice has continued ever since ; and he has given us B * a note of four cases in which Attorneys appearing in their own cases have been allowed their fees. Under these circumstances I think it doubtful whether any change in the practice as to this matter ought to be made, and that if a change were determined on, it ought to be made so as not to affect pending causes." Whether the Court of Queen's Bench might lawfully alter the law under the statutory power conferred by the Consolidated Statutes, c. 77, s. 15, to make and " establish such rules of prac- tice as are requisite for regulating the due conduct of the causes, matters, and business before the said Court," it is unnecessary to decide ; for the Court has in fact made no such rule, nor has the law been altered by any legislative Act, or other competent authority. We, therefore, think it was the duty of the Judges of the Court to administer the old French law, and that they could not alter it, or decline to apply it, on grounds of supposed expediency, as they appear to have done in the judgment in the present case, and the preceding cases on which that judgment was founded. For these reasons, their Lordships will advise Her Majesty that it should be reversed. Their Lordships do not think it should be reversed with costs because the Appellant had a full opportunity of bringing the point before this Committee, and of obtaining their judgment, when the former case of Broivn v. Gugy was before them (1). Had the present Appellant then prosecuted his cross appeal, the question which is the subject of the present appeal would have been then decided. His neglect to do so has been the occasion of the costs of this appeal having been incurred ; and their Lordships, therefore, think he ought not to be allowed them (2). Solicitor for the Appellant : La Penotieice. Solicitor for the .Respondent : Clarke, Son, & Eawlins. (1) 2 Moore's P. C. Cases (N.S.) 341. as to the right of an Avoctt to fix the (2) See the case of The Jersey Bur amount of his fees, and to recover such (13 Moore's P. C. Cases, 275), and the fees by action. French Ordonnances there cited in pote, 120 CASES IN THE PBIVT COUNCIL. [L. B. i>OX AND EDINBI KOI! SHIP- 1-7 1'ANY. .ill: o\\NERS OF THE 8( KEW } APPELLANTS; -^g. STEAMSHIP "ION A ........ AND THE nWNT.RS OP THE SAILING BARGE )_ "EMILY FANNY" ......... j 1 THE MONA." OX APPEAL FROM THE IIIGH COURT OP ADMIKAI/1T. pilotage Merchant Shipping Act, 17 & 18 Viet. c. 104, tee. 388 Collision Damage Joint negligence of Pilot and Matter and crew Liability of ownert. In order to entitle the owner of a ship, having, by compulsion'of law, a Pilot on board, to the benefit of the exemption contained in the Merchant Shipping Act, 17 & 18 Viet. c. 104, see. 388, from liability for damage by default of the Pilot, it is not enough to prove that there was fault or negligence on the Pilot's part, but the owner must shew that there was no default on the part of the Master and crew, which might have in any degree been conducive to the damage. Where, therefore, there was neglect on the part of the Master and crew to keep a good look-out, and such neglect conduced to a collision, the owners were held liable for the damage. The duty of the Pilot is to attend to the navigation of the ship, and the Master and crew to keep a good look-out. IHE cause from which this appeal arose was one of damage arising out of a collision between the sailing Barge, Emily Fanny, and the screw Steamship, lona, which happened on the llth of March, 1866, in BlacTiwatt Reach of the river Thames. The lona, a screw Steamship of 684 tons register, in charge of a licensed Trinity Pilot, whose employment was compulsory upon her owners, was proceeding down Blackwatt Reach, under steam alone, and her course was being shaped to round Blackmail Point, when the Emily Fanny was seen rather on the starboard bow of the lona, at a distance of about 300 yards, apparently * Present : THE MASTER OF THE POLLS (LORD ROMILLY), SIB JAKES WILLIAM COL VILE, and Sra RICHARD TORIX KJXDERSLEY. VOL. L] CASES IN THE PEIVY COUNCIL. 427 proceeding to the northward ; the helm of the lona, which was t. 0. then a-port for the purpose of rounding BlackwaU Point, was, 1867 by order of the Pilot, put hard a-port, with a view of passing r fsE ., IoNA .. under the stern of the Emily Fanny, but the tide took the lona, and prevented her from answering her helm, and although her engines were, by order of the Pilot, eased, stopped, and reversed, she struck the Emily Fanny, and sank her. The suit was brought by the owners of the Barge. The petition stated that the reach was clear ; that the Steamer might have passed, either to the northward or southward of the Barge ; that the collision was entirely attributable to the improper navigation of the lona, and to the negligence and default of those on board her ; and that there was no one looking out on board the Steamer. The answer alleged, first, that there was a good and vigilant look-out on board the Steamer ; secondly, that the collision, and damages and losses consequent thereupon, were not caused by, or attributable to, any improper navigation of the lona, or those on board her, but was the result of inevitable accident ; and, lastly, that at the time of the collision the lona had on board a licensed Pilot, by compulsion of law, who was in sole charge of the Steamer, and that his orders were promptly obeyed by the Master and crew ; that if the collision was in any way occasioned by any, one on board the lona, it was solely occasioned by the Pilot, and, consequently, that the owners were not liable in respect of any damages caused by the collision. The case was heard upon viva voce evidence before the Judge of the Admiralty Court (The Eight Hon. Dr. Lushingiori), assisted by two Trinity Masters. The learned Judge, in summing up, addressed the Trinity Masters as follows : " In this case there are two questions for your consideration ; in the first place, it is perfectly clear that primd facie the lona was to blame for this collision, unless she can be exempted from the consequences of that blame by the evidence adduced on her behalf. The defence is, that she had a licensed Pilot on board, which Pilot, by law, she was bound to take; that she was at the time under the control, and navigated by, the Pilot; and that if any blame whatsoever attached, it was the blame of the Pilot. The case of inevi- table accident is given up, and, therefore, the question that first OASES IN THE PRIVY COUNCIL. [L. R. j.c. arises is : was this accident occasioned by any erroneous mac is. ; men! on the port of tic Pil..t. and in what way? The object tu tlu ' cnmlin-t of tJle J' ilot is > t. If, there- fore, \-..u think the collision arose from the want of a sufficient look-out, then the exemption from blame, on account of the Pilot being on board, fails, because it was a defect in the navigation of the ship, for which the owners are responsible. The other question is this : It has been said that the lona was intercepted, so to s\ by the tide, and though the power of the tide upon her was sli: yet that it was sufficient to prevent her getting round on the port tack as she intended ; that she was a new vessel, and there was* something wrong. I cannot form an opinion upon that at all, but I must leave it entirely to you. These are the two points for } consideration." After consultation with the Trinity Masters, the learned Judge- finally held, that there was no proof that there was a proper look- out kept on board the lona ; that she ought to have seen the Barge earlier, and prevented the collision, and, therefore, that her owners were liable. Hence L the present appeal by the owners of the lona. Mr. Brett, Q.C., and Mr. E. C. ClarJcson, for the Appellants : In the Court below the main grounds of the defence of the- Appellants were: first, that the collision arose from inevitable accident, but we do not now rely upon that point; and secondly, that if any blame was to be attributed to the lona, it was solely to the Pilot. On this latter 'ground we rely, and submit that as the Appellants were compelled to take a Pilot on board, they are exempted from liability for damage arising by his neglect or default : The Merchant Shipping Act, 17 & 18 Viet. c. 104, sec, 388. YOL. I.] CASES IN THE PEIVT COUNCIL. 429 Now, it was proved by the Appellants' witnesses that the Barge J. C, was seen by the Pilot in ample time for him to have taken proper 1867 measures, and to have avoided the collision. It was his duty to THE .. I ONA ; J keep a good look-out, which his position on the bridge of the Steamer allowed him to do. That fact was not properly taken into consideration by the learned Judge below. Had it been, then the question whether there was a proper look-out by the crew was wholly immaterial. As the Pilot saw the Barge in time and did not take proper measures, and, in addition, was guilty of palpable negligence, having regard to the state of the tide, in ordering the lona to be put hard a-port, the blame rests on him. If, therefore, there be blame, it is to be attributable solely to the Pilot in charge of the Steamer, and that, under the above Statute, exempts the owners from liability for damage : The Nteander (1). Dr. Deane, Q.C., and Mr. F. Lusliington, for the Respondents : It was the duty of the Master and crew, as well as the Pilot, to keep a good look-out in order to avoid any collision, which was not done in this case. The onus is on the owners claiming the statutory exemption from liability for the damage, to prove strictly that there was no blame on the part of the Master and crew, which hero they have failed to do : The Schwalbe (2). It has been held, under the former Statute, 6 Geo. 4, c. 125, sec. 55, that the owner is only exempted when the damage is solely caused by the negli- gence, default, or incompetency of the Pilot : The Diana (3) ; and the same construction has been put upon section 338 of the Statute, 17 & 18 Viet. c. 104, relied upon by the Appellants : TJie Schwalbe (4) ; The Malvina (5). Their Lordships' judgment having been reserved, was now isc? delivered by March 8. SlB ElCHAED T. KlNDERSLEY : At about 8 o'clock in the morning of the llth of March, 1866, and, therefore, in broad daylight, the Barge, Emily Fanny, laden (1) 1 Moore's P. C. Cases (X.S.) 63. (3) 4 Moore's P. C. Cases, 11. (2) Lush. 239 ; S. C. 14 Moore's (4) 14 Moore's P. C. Cases, 241. P. C. Cases, 241. (5) 1 Moore's P. C. Cases (N.S.) 357. ! ,0 CASES IN THE PBIVY COUNCIL, [I. II. j. a with sand, was coining up the river under sail, and with two i i: polling at the oars, and heading nearly north ; tho Steamer, Jona, ( newly 1 ' 1 "' 1 iron ship of 648 tons) was going down the river at rate of six or seven miles an hour. The weather was nearly calm, what lit tl< wind there was being (as stated by the Appellants in tho preliminary Act) from the southward and eastward. The state of tin- tide was "last quarter flood," that is, nearly 1 water, running up the ri c rate of about a knot an hour. The Steamer was in charge of William George Allen, a licensed Trinity House Pilot, \\lio was standing on the high bridge, his per place, whence he gave his directions to the man at the wheel by waving his hand in the usual manner. The Master of the Steamer, Thomas liaison, was standing on the roof of the i ships house, \\ hich forms a sort of lower bridge. The Boatswain was stationed on the forecastle to keep a look-out ahead. As the Steamer was rounding Blackball Point, she came, stem on, against the port side of the Barge, which immediately filled and sank. About these facts there is no controversy. The Respondents instituted proceedings in the High Court of A minilty against the Appellants in a cause of damage; and by their petition, after stating the facts, alleged that the collision was entirely attributable to the improper navigation of the Steamer, and to the negligence and default of those on board her. The Appellants, by their answer, alleged that whilst the course of the Steamer was being shaped to round Blackwatt Point, the Barge was seen ahead, and rather on the starboard bow of the amer, and at the distance of between 200 and 300 yards, ap- parently proceeding to the northward ; that thereupon the helm of the Steamer, which was then a-port for the purpose of rounding Blackball Point, was, by order of the Pilot, put hard a-port, with a view to pass under the stern of the Barge, but the tide took the Steamer and prevented her from answering her helm ; and although the engines were, by order of the Pilot, eased, stopped, and re- versed, a collision could not be prevented, and the Steamer, with her stem and port bow struck the Barge on her port side, and not- Avithstanding that a fender was put over the side of the Steamer, the Barge sank. The answer also asserted that the collision, and the damages and losses consequent thereon, were not caused by or VOL. L] CASES IN THE PRIYY COUNCIL. 431 attributable to any improper navigation of the Steamer, or to any J. C. negligence or default of those, or any of those, on board her, 1867 but was the result of inevitable accident. The answer further THE"!OIU." asserted, that if the collision was in any way occasioned by any one on board the Steamer, it was solely occasioned by the Pilot, and they (the Appellants) were not liable for any damage caused thereby. The cause came on to be heard on the 24th of July last, before the learned Judge of the High Court of Admiralty, assisted by two elder brethren of the Trinity House. Four witnesses were called by the Appellants, Allen, the Pilot ; Raison, the Master of the Steamer ; Edgar, the second Engineer ; and Williamson, the second Officer, who was at the wheel, with two other men, when the collision occurred. They were examined viva voce in Court. The Respondents called no witnesses. The learned Judge, having pointed out to his two Assessors the questions upon which their opinions were required, and after consultation with them, declared his opinion to be, that there was no proof that a proper look-out was kept on board the Steamer ; that she ought to have seen the Barge earlier, and prevented the collision ; and, therefore, he pro- nounced against the Steamer, and condemned the owners thereof in damages and costs. From that decision the present appeal is brought by the owners of the Steamer. In arguing this appeal, the Appellants, by their Counsel, no longer contend that the collision was not occasioned by the negli- gence or default of any one on board the Steamer, but was the result of inevitable accident. That point they abandon ; and the only ground upon which they insist that the decision. ought to be reversed is, that the collision was, as they allege, occasioned en- tirely by the default of the Pilot, and that, therefore, the owners of the Steamer are exempt from liability. This is the only point which their Lordships have now to consider. By the Merchant Shipping Ad, 17 & 18 Viet. c. 104, sec. 388, it is enacted, that no owner or Master of any ship shall be answer- able to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified Pilot acting in charge of such ship, within any district where the employment of such. Pilot is compulsory by law. i;;j CASES IN THE PMVT COUNCIL. [L. B. An enactment substantially to the same effect, though expressed i- ; in different language, was contained in the Pilotage Ad, Gt Ti-r "I >NA " ' I--"'. I ' "'"' Now, in construing those Acts, it has been established as a l>riii'-ij !. that, in order to entitle the owners to the benefit of the exemption from liability thereby provided, they must prove : the damage, for \\hi-h it is sought to mul. lial.le, was occa- sioned exclusively by the default of the Pilot. It is not enough for tin -in to prove that there was fault or negligence in the Pilot they must prove, to the satisfaction of the Court, which has to try the question, that there was no default whatever on the part of the Officers and crew of their vessel, or any of them, which might have been, in any degree, conducive to the damage. '1 principle was very clearly laid down by Dr. Lushington, in case of Ttte Diana (1), which was a case under the earlier of the two Statutes. That learned Judge there says: "To obtain exemption from responsibility conferred by the Act, I think : the owners of The Diana should prove that the accident arose entirely from the fault of the Pilot ; that the exception under the Act ought to be construed strictly, and that if the accident was occasioned by the joint misconduct of the Pilot and crew, I am bound to hold that the liability still attaches to the owners/* The same principle was upheld and acted upon by this Court in the case of The Christiana (2), which was also under the Statute of 6 Geo. 4, c. 125 ; and in the case of The Schwalbe (3), under the Act, 17 & 18 Viet c. 104, sec. 388, and it has been treated as the established law in several other cases, both in this and in other Courts. The question, therefore, which their Lordships have to deter- mine, is simply this : Is it proved to their satisfaction that there was no default in any of the crew of the Steamer, which may have conduced to the collision ? And upon this question, their Lord- ships having fully considered the evidence, entirely concur in the opinion of the learned Judge of the Court below, that it is not so proved ; for it is not proved that a good look-out was kept on board the Steamer. (1) 1 W. Rob. 135. (2) 7 Moore's P. C. Cases, ICO. (3) U Moore's P. C. Cases, 2CO. VOL. I.] CASES IN THE PRIVY COUNCIL. 433 The importance of alleging and proving that a good look-out J. C. was kept, was, of course, felt by the Appellants ; and, accordingly, 1867 in the second article of their answer to the petition in the Court THE " ION-A." below, they expressly allege that a good and vigilant look-out was being kept from on board her. Now, what evidence do they adduce in support of that allegation ? They prove that the Boatswain was stationed on the forecastle to keep a look-out ; but they prove no more. Now, what was the duty of the man thus stationed on the look-out ? Surely his duty was to keep a vigilant look-out, and, when he saw any craft ahead, to report to the Pilot. There was nothing to prevent the Barge being seen from the Steamer some time before they were within 300 yards of each other, when the Pilot first saw her. Although the Appellants, in the preliminary Act, allege that the weather was hazy (contrary to the allegation of the Eespondents, that it was clear), there is no evidence of the presence of any haze. Nor is it suggested that there were any other vessels in the way, or any other obstruction to a wide and distant view. Indeed, it is plain from a comparison of the evidence of the Pilot and ot the Master, that the Barge was actually seen by at least one individual on board the Steamer (namely, the Master) before the Pilot saw her ; for the Pilot says that, for the purpose of rounding the point, and before he saw the Barge, he had given an order to " slow " the engines, and had waved to port the helm, and that he afterwards saw the Barge, distant about 300 yards, and then waved to put the helm hard a-port ; and the Master says, that at the time when the Pilot gave the order first to " slow," and the first order to port, he (the Master) had already seen the Barge, and that in fact he saw her as the Steamer was passing the Factory before she came to Blackwall Point, thus clearly shewing that the Master saw the Barge before the Pilot did. And if the Master could see her, the Boatswain on the forecastle might have seen her, and ought to have seen her, and would have seen her if he had been keeping a vigilant look- out. Whether the man saw the Barge or not, or whether he was or was not keeping any look-out at all, does not appear ; but it is not suggested that he made any report whatever. The learned Counsel for the Appellants was, therefore, driven to the necessity of arguing that it was the Pilot's duty to keep a look-out, which IN Tin: n:iYY c<>r\ni,. [L. J. C hb elevated position on the i !ge well enal-l <1 liin. '.- : and that it was unnecessary for the man stationed on the look-out TT!oA." to make any report, or indeed to keep a look-out at all. The : i : .1. I N admiflion would produce vetj mischievous congeqtiences, and very much increase the risk of navigation. No doubt the Pilot may, and probably in most cases does, see a craft ahead as soon as any one else on board ; i vntion is necessarily directed, from time to time, to other mat- ters relating to tlu> navigation of the vessel under his <-h.. besides keeping a look-out ; and on that account it may that he does not see an object ahead so soon as he oiurlit t<> ! been aware of it, in order to enable him to take measures to avoid it. Hence arises the necessity for having a man stationed the forecastle, \\ith tin- special and sole duty of keeping a A lant look-out, a necessity fully recognised on the part of those on board the Steamer, by their stationing the Boatswain on forecastle for that special purpose. And it is impossible to 1 that the man so stationed was justified in neglecting to kecj- u look-out, on the ground that it is the duty of the Pilot to keep a look-out. The only remaining question is, whether the failure of the look- out man to perform his duty did not conduce, or may not havo conduced (for that is sufficient for the present purpose) to I about the collision. Aflen, the Pilot, in his examination, says, that when he first saw the Barge she was distant about 300 y; At the rate at which the Steamer was going, six or seven miles an hour (say six and a half miles an hour), it would take only about a minute and a half to go over that space. He says, that as soon as he saw the Barge he ordered the helm (which was already a-port to round the point), to be put hard a-port, which was imme- diately done ; that the Steamer at first answered to the helm, and payed off to starboard ; but that when she came to the tide (which, it is obvious, from the very sharp and sudden bend of the river at that place, would be running somewhat across the channel of the river from the southern towards the northern shore), the tide took her on the starboard bow, and she ceased to obey the helm, and, in consequence thereof, she ran into the Barge. The Master's evi- dence corroborates this representation of the Pilot. No doubt the VOL. L] CASES IN THE PEIVY COUNCIL. 435 M Pilot ought (as it was argued for the Appellants) to have known J.C. that, in the then state of the tide, and at that part of the river, 1867 such would be the effect of the tide on the starboard bow. But THE IONA." there seems no reason for supposing that he did not know it; indeed, it does not require the knowledge or experience of a Pilot to know, from the remarkable bend of the river round BlacJcwatt Point, that such must be the effect of the tide in its then state. Now, if the Pilot had been earlier made aware of the position of the Barge, he might have sooner put the helm hard a-port so as to avoid a collision, and we are bound to assume that he would have done so. As it was, he was not made aware of the position of the Barge till he saw her only about 300 yards distant, when it was too late to prevent the collision. Thus the neglect of duty on the part of the look-out man, not only might have been conducive to the disaster, but was in all probability the ultimate cause of it. Upon the whole case, their Lordships are of opinion that there was neglect of duty on the part of the look-out man ; that this neglect of duty conduced to the collision ; and that it was such default on the part of the crew of the Steamer as to disentitle the owners to the benefit of that exemption from responsibility which the Statute provides. They will, therefore, humbly advise Her Majesty to affirm the decision of the Court below, and to dismiss this appeal with costs. Proctors for the Appellants : Clarkson, Son, & Cooper. Proctors for the ^Respondents : Lauri & Keen. CASE8 IN liir. 1-::1VY COUNCIL J.r.- DANIEL lIKKKh i\ 18C7 i. GAKI;I:T >i\r,v i ON APPEAL FKOM TIIK mrilT or gri:! < H FOR I.oV. .ADA (A1TKAL MUK). Xouwr Canatla, Jaw of Action en bornage BoundarittQtiantititt described in deed* Ambiguity Jlules of construction Prescription. Action en bornage to ascertain the boundary lino between the contiguous properties of the Plaintiff and Defendant, which property was formerly olio Lot, and described as containing between 140 or 150 acres. This was aflcr- wardaaold in two Lots. The Plaintiffs, the eastern portion, was described in the deeds as containing " 00 acres, more or less." The Defendant's, the western portion, "about fifty acres ;" but the descriptions in the deeds did not agree as to the way the line of boundary was to run. The effect of a viyor's report, which the Court in Canada homologated, was to make a boundary line, by which the Defendant got sixty-one acres, and reduced the Plaintiff's to eighty-two acres. Upon appeal, held (rcTersing the decrees of the Sui>erior Court and the Court of Queen's Bench), that those Courts were wrong in their construction of the deeds and evidence as to the boundarries, the rule being that, if in a deed conveying land the description of the land intended to be conveyed is couched in such ambiguous terms that it is very doubtful what was intended to be the boundaries of the land, and the lan- guage of the description equally admits of two different constructions, the one making the quantity conveyed agree with the quantity mentioned in the deed, and the other making the quantity altogether different, the former con- struction must prevail. Held, further, that the case differed from a conveyance of a certain ascer- tained piece of land accurately described by its boundaries on all sides, with a statement that it contained so many acres, " or thereabouts," when, if the quantity was inaccurately stated, it did not affect the transaction. the law of Lower Canada the term of prescription is thirty years. To sustain a plea of prescription, the evidence must shew peaceable unin- terrupted possession and ownership for upwards of thirty years. JL HIS was an action en lornage, brought by the Appellant against the llespondent in the Superior Court for the District of Montreal, to ascertain the boundary line between contiguous pieces of land of the Appellant and the ^Respondent, which land originally belonged to the same owner, and formed together a certain parcel of ground, described in the deeds of both the Appellant and Respondent as * Present : SIB WILLIAM ERLK, SIR JAMES WILLIAM COLVILE, SIB EDWARD YACGHAX WILLIAMS, and SIB RICHABD TOMS KIXDEBSLET. VOL. L] CASES IN THE PEIVY COUNCIL. 437 Lot No. 3, which Lot was said to contain between 140 and 150 J- C. acres, and described as bounded on the south by the boundary 1867 line, along the 45th parallel of latitude, between Canada and Ver- HEKRICK mont, on the north by a line parallel to the last-mentioned line, and on the east and west by lines perpendicular thereto. The whole Lot formed a rectangular block, and there was no difference between the parties as to its original boundaries or area, the question being the boundaries after the division. The western portion of Lot No. 3 was sold in the year 1813 to the Respondent's predecessor in title, as "about fifty acres of land." The eastern portion of Lot No. 3 was sold in 1845 to the Appellant's predecessor in title, and was described as containing " ninety acres more or less." It was agreed between the parties that a hemlock stump, referred to in the deeds of the Respondent, and still existing in the line of the southern boundary of Lot No. 3, was the point from which the boundary line between the properties of the Appellant and Respondent was to start. The question was in what direction it was to run. The Appellant con- tended that it should run parallel with the eastern and western, and perpendicular to the northern and southern boundaries of Lot No. 5, so as to give each party a rectangular block of land. This would have given the Respondent about fifty-one acres, the quantity conveyed by the deed being " about fifty acres," and the Appellant little over ninety acres, the quantity mentioned in his deed. The Respondent, on the other hand, con- tended that the boundary line ought to run in a zig-zag line towards the north-east ; which would give him eighty-two acres in- stead of " about fifty acres," as conveyed by his deeds, and the Ap- pellant sixty-two, instead of " ninety acres," as conveyed by his deeds. From a plan referred to in the Court below, there appeared to be a ledge of rocks running north-east from the hemlock stump, a short distance to the east of a brook flowing into the Rock River. The Respondent claimed that his boundary should run at the base of this ledge of rocks. The facts were these : Early in the present century, John Ruiter owned an estate in the Seigniory of St. Armand, in Lower Canada. Such estate was, at his death, divided among his heirs, in which the portion of one VOL. I. 3 2 L i;;.s CABE8 IN THE PRIVY COUNCIL. J. c. GapUin John RwiUr wa diitingniihad t* Lot No. 3, and described i -: M containing 140 acres. n'~ By a deed, dated the 3rd of March, 1813, Captain Putter conveyed a part of that Lot to George and David Krans, brothers, l-y tli- il lowing description: A Ix mt fifty acres of land, part and parcel of that tract of land situate, lying, and being in tin- afore- said Seigniory of St. Armand, known and distinguished by Lot No. 3; the said fifty acres or thereabouts to extend from westerly boun !.u-y line of said Lot any Miles Krans and James Allen, and to the east by Lot No. 4 on the plan." Houghton sold and conveyed to the Appellant the land com- prised in the last-mentioned deed, by the same description. The Appellant brought the present action against the Respondent in the Superior Court for the District of Montreal, and by the de- rat ion alleged, that the Respondent occupied his land, or, as the Appellant called it, encroached, praying that the respective lands of the parties might be measured and bounded at their common ex- pense, by a Surveyor to be agreed on by them, or in default of rach agreement to be named by the Court, that a proces verbal of such measuring and bounding might be homologated by the Court, if VOL. L] CASES IN THE PEIVT COUNCIL. 439 found just, and that the Kespondent might be condemned to re- J. C. store to the Appellant the profits which he had derived, or might 1867 have derived, from his alleged encroachment, to the extent of Baaaat 150 currency, with costs of suit. The Kespondent, by his plea, claimed to hold to the ledge of rocks, both by his deeds and by a prescription exceeding thirty years, and averred that Euiter, the vendor in 1813, did not dispose of the Appellant's portion of the Lot No. 3 for a long time after he had sold the Respondent's portion thereof, and that any title which he might have granted for the Appellant's portion was subject to the fulfilment and warranty of the title which he had granted of the Respondent's portion, and prayed that the respec- tive lands of the parties might be measured and bounded at their common expense, according to their titles and to the possession and rights of the Respondent, and according to the marks, limits, indications, and boundaries defined and marked out by the Re- spondent's titles. Witnesses were examined, whose testimony as to the boundary and uninterrupted user relied on by the Respondent was contra- dictory and conflicting. The Judge (The Hon. Mr. Smith) having heard the case on the merits, ordered, avant faire droit, that the contiguous properties in question should be measured and bounded by a sworn Sur- veyor, according to the respective titles of the several parties, and that the Surveyor should particularly establish and run a line of division between them, adjoining and adjacent to the ledge of rocks, and along the base of the ledge, and should fix and deter- mine the line by proper metes and bounds, and should report to the Court accordingly. The Surveyor made his report, which, with a plan thereto an- nexed, was filed, and by a final judgment pronounced on the 31st of October, 1862, by the Hon. Mr. Assistant Justice Monk, the Superior Court homologated the report, and determined the boundary between the contiguous properties in question, in ac- cordance with the Respondent's contention. The Appellant appealed to the Court of Queen's Bench, which Court, on the 1st of March, 1864, by a majority of the Judges, affirmed the judgment of the 31st of October, 1862. 3 2 L 2 -ill OASES IN THE PRIVY 001 ].. i:. i- WyW III . ta r. IM7 V-v^/ .V.T /. >. Tii- present appeal was from this judgment of confirmat argue 1 by Mr. Maniity, Q.C., and Mr. Wills, for the Appellant ; and l.\ /. n'atiake, and Mr. A. Aitlcen, for the Respond' nt. The Appellant's contention was, that the case ought to have been decided upon the deeds alone, or upon the deeds and parol nee of uninterrupted user ; and insisted that the judgment was erroneous, in giving him little more than sixty acres, when he had purchased ninety acres. For the Respondent, it was submitted first, that I! niter 8 sale to the Kranses, in 1813, was a corps certain, defined by metes and bounds, and not liable to be affected by an erroneous indication of quantity, and that the Court had properly determined the boun- dary; secondly, that the Respondent and his predecessors in title had held the quantity of acres the Court awarded, uninterruptedly, for more than thirty years, in accordance with such boundary, and were thus entitled by prescription. SIR RICHARD T. KINDERSLEY : This is an appeal from a judgment of the Court of Queen's Bench, of Lower Canada, dated the 1st of March, 18G4, affirming a judgment of the Superior Court of that Province, dated the 31st of October, 1862. The action in which these judgments were given was an action en "homage by the Appellant, to have the boundaries between two contiguous properties of the Appellant and the Respondent ascer- tained and determined. The following are the circumstances out of which the action arose: One John Euiter, who died in or before the year 1809, was the owner of a landed estate in the Seigniory of St. Armand, in Lower Canada. After his death, his estate was, in 1809, divided among his heirs, according to a plan of partition shewn on a map, made and prepared by one Amos Lay, a Surveyor. One of the heirs was in John Butler, and by the partition there was allotted to him (besides another piece of land containing about sixty acres, called Lot 4 on the map, not in question in this suit) a piece of TOL. L] CASES IN THE PRIVY COUNCIL. 4 land distinguished on that map as Lot 3, and described as con- J. C. taining 140 acres. 1867 This piece of land, which it will be convenient always to call HERRICK Lot 3 (that being its designation not only on the partition map, gj^ Y but also in the subsequent deeds of both the Appellant and the ^Respondent) is in form (speaking with mathematical accuracy) a trapezium, but it is so nearly a rectangular parallelogram, that, for all practical purposes, it may be so considered, and, indeed, it is so represented in some of the maps given in evidence. It is bounded on the south by the boundary line between Canada and Vermont, which is a straight line running along the 45th parallel of latitude, and, therefore, of course, running due east and' west ; its western boundary is a straight line drawn perpendicularly to the southern boundary; its eastern boundary is a straight line drawn very nearly, though not quite, perpendicularly to the southern boundary line ; and its northern boundary is a straight line drawn from the northern end of the western boundary line, and running towards the east, parallel, or very nearly parallel, with the southern boundary. Its length from west to east is greater than its width from south to north. It consisted, at the period referred to, of wild forest and woodland; but it appears that in comparatively recent times some patches of it have been cleared for pasture. It is necessary to observe that, at a point on the southern boundary line of this Lot 3, at a distance from the south-western corner of one-third of the whole length of the southern boundary line, a brook crosses the southern boundary, iluwing into and diagonally across Lot 3, the direction of its course being about N.N.E. ; and, a little to the eastward of this brook, a ledge of rocks runs also diagonally across the whole Lot 3, from the southern to the northern boundary, in a direction nearly the same as that of the brook. It is further to be observed, that, by recent survey and measurement, made under an order of the Court below, this Lot 3 is found to contain 144 acres and 2 roods. In 1813, Captain John Buiter, being the owner of this Lot 3, sold a part of it, at the western end thereof, to two brothers, George and David Krans ; and by a deed, dated the 3rd of March, 1813, he conveyed to them by the following description : " About fifty acres of land, part and parcel of that tract of land situate, lying, j j . -GASES IN THE PBIVY COUNCIL. [L. R. J.OL and being in the aforesaid Seigniory of St. Armand, known i . distinguished by Lot No. 8; the said fifty acres, or thereabout, to extend from the westerly boundary line of the said lot, and on the whole width thereof, and easterly to the foot of a ledge of rocks which runs across the said lot, at a certain distance easterly of a certain brook which also runs across said Lot, the south-easterly boundary of which said part of said Lot is a hemlock tree, wi. stands on the southerly boundary line thereof, and is marke- an.l />. A'., 1813." It is u|N)M the construction which ought to be put upon description that the controversy between the parties mainly turns. The portion of Lot 3 thus conveyed to George and David Krans, afterwards became the property of Miles Krans. By a decrd in the same terms as those before mentioned to have been contained in the deed of the 3rd of March, 1813. The remaining portion of Lot 3, which was not comprised in the conveyance to the Kranses, afterwards passed from Captain John Ruiter, through successive holders, until it became vested in one George Chipman ; and by a deed, dated the 15th of August, 1845, the Sheriff of the District of Montreal, under a writ of execution BUCK! out by one Abel Houghton, against the lands and tenements of George Chipman, sold and conveyed to Abel Houghton by the following description : " A lot of land, situate in the Seigniory of St. Armand in the district of Montreal, being part of Lot No. 3, on a plan of division of the land of the late John Rviter, among the heirs of his estate, the said plan made by Amos Lay, Surveyor, and dated the 6th day of December, 1809, containing ninety acres in superficies, more or less ; bounded to the south by the Province line; to the west, by the remaining part of the said Lot No. 3, owned- by Miles Krans; to the north by MUes Krans and James Allan; and to the east by Lot No. 4 on the said plan." It appears that, in that transaction, Abel Houghton, who was the cashier of the St. Albans Bonk, was acting on behalf of, and as Trustee for, that Bank ; and by a deed, dated the 23rd of October, VOL. L] CASES IK THE PEIVY COUNCIL. 443 1855, Abel Houg/hton, on his own behalf, and on behalf of the St. J. C. Alban's Bank, and by virtue of a power of attorney from the Bank, 1867 sold and conveyed to the Appellant the land comprised in the HERRICK Sheriff's deed, by the same description. SIXBY The Appellant's case is, that the property comprised in' those two last-mentioned deeds was the residue of Lot 3, not comprised in the conveyance of the 3rd of March, 1813, to the two Kranses. He has not, however, proved the conveyances or other instruments by which that residue passed from Captain John Ruiter, and be- came vested in George Chipman ; and upon that ground an objec- tion has been raised by the learned Counsel for the Respondent, that it is not shewn that George Chipman ever was the owner of the eastern portion of Lot 3, and, therefore, that the Appellant, not having proved his title to that portion, could not maintain his action. That objection, however, their Lordships have no hesita- tion in disallowing. It is not suggested that any person has, or claims to have, any right or title to any portion of Lot 3, other than the Appellant and the Respondent. Moreover, the Respon- dent, with the view of proving that the owner, for the time being, of the western portion of Lot 3 had exercised acts of ownership on the portion of land which is in controversy, with the knowledge of, and without objection by the owner, for the time being, of the eastern portion of the said Lot 3, called as witnesses in the Court below, Miles Krans and James Slade Allan, who had been successively the owners of the western portion ; and their evidence shews that Chipman was, at one time, the owner of the eastern portion of Lot 3. Miles Krans, after stating that he cut wood on the Lot, says : " During the time I so cut wood on the said lot of laud, to the east of it " (" to the east of it " means the eastern part of it), "now owned by the Plaintiff" (the Appellant), "was possessed successively by John Ruiter, John Rhodes, Anthony Rhodes ; after which, I think, it went into the hands of George Chipman? Allan says : " Old Mr. Rhodes, and Mr. Chipman, and the Bank of St. Albans were, one after another, in possession of the east part of the said Lot, to the east of the foot of the ledge of rocks. Old Mr. Rhodes was in possession of it when witness first went there in 1836 ; afterwards, Chipman, and, subsequently, the Bank of St. Albans and Mr. CJiipman, as I understood." Another witness called by the ill ('IL. [L. B. Respondent, namely, Auyuttin Lavoie, deposes t 1 Respondent's i- : cows wero impounded by Clnpman, for having trespassed on Hariri part of the mid Lot ("pour avoir traverse sur $a part dwlil L _* dniil.ti-d that Chipman was the ownn- .,f tlie eastern portion of Lot 3; and it is to be observed that the d> in conveyance made by the Sheriff to Abel 1 Mi- writ of ion against Chipman, is an ! appropriate description of so much of Lot 3 as was not comprised in th- yanoe of the 3rd of March, 1813, by Captain Jo/, / to rye and David Krans. And it may be added that the Respon- \ hi- i !, so far from disjmtin:: th-- Appellant's title to the eastern portion of Lot 3, by strong iinf>liratin. .aid almost in terms, admits it ; and the plea en-Is with that it may be adjudged and ordered that the measure and boundaries of tin- said lands and properties of the Appellant and Respondent may be ha-1 an-1 made by a sworn Land Surveyor, to be agreed upon by the parties, or appointed by the Court. Assuming, then, that the Appellant is the owner of the eastern, and the Respondent of the western portion of this Lot 3, th. question is, what is the right boundary between those two por- tions? That question is, in truth, the same as this, what, accord- ing to the true construction of the words of dBKription in the conveyance of the 3rd of March, 1813, from Captain John Ruiter to George and David Krans, having regard to the local features therein referred to, was the eastern boundary of the property thereby conveyed? All depends upon the construction of that deed, and nothing which has since occurred can affect that con- struction. The question must now be tried between the Appellant and Kespondent, in precisely the same manner as it would have been tried if the dispute had arisen between Captain John 7?> and George and David Krans immediately after the execution of the deed of the 3rd of March, 1813. The AJ.JH Hunt insists that, according to the true construction of that deed, the jwrties thereto intended that the eastern boundary of the portion thereby conveyed should be a straight line drawn from the hemlock tree, situate on the southern boundary line, due north, i.e. parallel to the western boundary line, till it meets the northern boundary line. The Respondent, on the other hand, VOL. I.] CASES IN THE PRIVY COUNCIL. 445 insists that the parties intended that the eastern boundary of the J. C. portion conveyed should be the foot of the ledge of rocks along its 1867 whole course. HERRICK Now, whichever of these two views is the right one, it appears from the evidence, that if the Appellant's view be adopted, then the effect will be that the portion conveyed by that deed would contain a little more than fifty acres, agreeing, therefore, with the quantity mentioned in the deed, which is " about fifty acres." Whereas if the Respondent's view be adopted, and the ledge of rocks is held to be the eastern boundary of the portion conveyed by the deed, then the effect will be that that portion would con- tain eighty-two acres, instead of " about fifty." This consequence of the success of the Respondent's contention is, it must be con- fessed, somewhat startling. Let us now see how the case was dealt with by the learned Judges of the Superior Court, and afterwards by those of the Court of Queen's Bench, on appeal. In the Superior Court the case was heard before Mr. Justice Smith, who decided in favour of the Eespondent (the then De- fendant); and made an Order, dated the 27th of May, 1862, directing that a line should be run, by a sworn Surveyor, to be agreed upon by the parties, or (if they could not agree) to be appointed by the Court, along the base of the ledge of rocks as the boundary between the Appellant and Eespondent respectively. We have not the advantage of knowing the reasons for which Mr. Justice Smith came to this conclusion. The parties not agree- ing on a Surveyor, one Amos Vaughan, a sworn Surveyor, was appointed by the Court ; and in obedience to the Order of Mr. Justice Smith, he drew a boundary line along the base of the ledge of rocks, from the southern to the northern boundary of the Lot ; and he duly made his report, stating in detail what he had done, which report was filed on the 17th of October, 1862. On the 31st of October, 1862, the case came again before the Superior Court, on the report of the Surveyor, and of two motions by the Appellant, that the Order of Mr. Justice Smith might be revised, and that the Surveyor's report might bo rejected, and on a motion by the Eespondent that the Surveyor's report might be approved and homologated ; whereupon Mr. Assistant Justice Monk, before whom OASES IN THE PRIVY O [L. R. J. a the mu (tor came, made an Order rcj A ppellant's motions, 1867 and -rim- -t the Respondent, homologating the ^ ,," ^ re|>, . stablishing the boundary as set >ut in th..: In \ llaut's case on the appeal to tin- Court of Queen's Bench, some remarks of Mr. Assistant Justice Monk on that occasion are set out, from \\hi.-ii it \\. uM appear that ho considered the Order of Mr. Justice Smith as final, and not as interlocut which reason it was not in his power to revise it, 1-nt that ho used expressions which might lead to the inference that he was satisfied \\ it h the decision of Mr. Justice Smith. However this may be, it seems certain that he (Mr. Assistant Justice Monk) expressed no opinion in favour of the Respondent's case. The Appellant having appealed to the Court of Queen's B- the case came on for hearing before that Court, on the 1st of March, 1864, in the presence of Mr. Assistant Justice Badyley, Mr. Ju- Meredith, and Mr. Justice Monddet, and the decision of the Supe- rior Court was affirmed. We have the reasons or judgments of the three learned Judges. Mr. Justice Badgley, in his judgment, seems to assume that tlio description in the deed of the 3rd of March, 1813, specified all the boundaries of the portion of Lot 3 whirh was thereby c< and in particular, that it specified the ledge of rocks as the eastern boundary ; and then he cites several authorities to shew that if, in a deed of conveyance, the description of the piece of land conv< states its boundaries on all sides, and states also its contents, Imt states them incorrectly, then that part of the description which specifies the boundaries must prevail, and the specification of the quantity must be disregarded. If the assumption of the lear Judge be correct, there would seem to be no reason to challenge the conclusion. But the assumption that the deed of the 3rd of March, 1813, specifies the boundaries of the land conveyed on all its aides, is simply begging the whole question. The very question between the parties is whether, upon a true construction of the language of the deed of the 3rd of March, 1813, it did make the ledge of rocks the eastern boundary of the piece of land thei conveyed. And to that question the judgment of Mr. Justice Badgley is not addressed. Indeed, it may be doubted whether the learned Judge had not before him by some mistake, instead of a VOL. L] CASES IN THE PEIVY COUNCIL. 447 true copy of the description in the deed, some paper which (though J. 0. purporting to be a copy) was altogether incorrect. For towards 1867 the earlier part of his judgment, after a statement of the facts, and HERRICK observations on the circumstance that the Appellant produced no title deed earlier than the Sheriff's conveyance to Abel Hougliton in 1845, we find this passage: "The piece of land, the Krans's purchase and the Respondent's property, is described as inclosed within fixed boundaries, plainly described on the four sides, with a south-east point of departure for (misprinted from) the eastern boundary, as follows :" (Now, what follows is in inverted commas, as if it was a quotation from the deed.) " ' Running north-west ' (clearly a misprint for north-east) ' at the foot or along the foot of a ledge of rocks, which run across the Lot at a distance east of a certain brook, which runs across the said Lot.' " (After that quota- tion he proceeds : ) " The ledge of rocks and brook being natural boundaries, can admit of no dispute, and are shewn on the map or plan of division mentioned in the Sheriff's deed." If the learned Judge was accidentally led to suppose that the passage which he puts in inverted commas was a true copy of the words of the deed, it is no wonder that he made the assumption that in the deed the piece of land was (as he says) " described as inclosed within fixed boundaries plainly described on the four sides." The judgment of Mr. Justice Meredith is not open to the same remark. He discusses the question of the construction of the description in the deed, and arrives at the conclusion that it was intended that the ledge of rocks should be the eastern boundary. The substance of his able reasoning on the point is contained in the following passage in his judgment: "That description cer- tainly is not clearly worded ; but still it seems to me impossible to suppose that if, as the Appellant alleges, the parties intended the line in question should run parallel with the ends of the Lot, and at right angles with the north and south lines, the description could have been worded as it is. Not only is there not one word tending, however remotely, to indicate such an intention ; but there are words clearly indicating, I think, a contrary intention. To what purpose did the description refer to ' the ledge of rocks Avliich runs across the said Lot,' and specify the situation of that ledge as being 'at a certain distance easterly of a certain brook CASES IN THE PETTY COl VII, [KB. J. C. t\ Iii.-h run* across the said I .li\ iskm was to bo a straight 1867 line uninfluenced by the coarse of the ledge of rocks so cart-fully H ^H1. described? The ledge of rocks \\hi--h runs across the said Lot -* cannot, I think, have been referred to fur the purpose of d mining the south-easterly boundary of the Lot sold, fur that was placed beyond the possibility of doubt by the hemlock tree marked ' G. and D. K.' (the names of the purchasers) ' 1813 ;' and if the ledge of rocks were not referred to for that purpose, it mu- 1 think, have been referred to as indicating the course of These observations of the learned Judge seem to present th>- arguments in favour of the Respondent's view as clearly and as strongly as it is possible to put them. Those arguments will be noticed presently. 31 r. Justice Mondelet differed from his two colleagues, and thought the decision of the Superior Court ought to be reversed. The reason he assigns is, t!:;.t the effect of that decision was to give the purchaser eighty-two acres instead of the fifty, or thereabouts, intended for liirn by the deed. There being thus two members of the Court for affirmance, and only one for reversal, the decision of the Superior Court was of course affirmed. And from that decision the present appeal is brought. The question, what construction ought to be put upon the lan- guage of the description in the deed of the 3rd of March, 1813, in order to determine the eastern boundary of the piece of Ian- 1 thereby com- y< <1, i> cvrtuinly one of considerable difficulty, and it is not surprising that there should have been a difference of opinion among the Judges of the Courts below. But, after full consideration, their Lordships are unable to concur iu the conclu- sion arrived at by the majority of those learned Judges. The language of the deed is extremely indefinite and ambiguous. It is impossible to say that it is quite incapable of the construction contended for by the Respondent ; but, on the other hand, we are of opinion, that it is at least equally capable of the construction contended for by the Appellant ; and, upon the whole, we think that the latter construction is the one which best satisfies all the language of the deed. By the terms of the deed the fifty acres of land, or thereabouts, intended to be conveyed, are to extend from YOL. I] CASES IN THE PEIVY COUNCIL. 449 the westerly boundary of Lot 3 (which, it is to be recollected, is a J. C. straight line at right angles, or as nearly as possible at right angles, 1867 to both the southern and the northern boundary of the Lot) and HEHRICK on the whole width thereof (that is, on the whole width of the Qjs^y Lot), and easterly to the foot of a ledge of rocks, &c. ; that is, the portion of land intended to be conveyed is to extend from the western boundary line towards the east, it is to extend on the whole width of the Lot, which seems to imply that its width is to be the width of the whole Lot, and it is to extend eastward till you come to the foot of the ledge of rocks, and there you are to stop. Now, it is obvious that, if after first reaching the foot of the ledge of rocks as you proceed towards the east, the portion to be conveyed is carried on still further to the east, so as to make the ledge of rocks its eastern boundary, all that additional part which would be thus included would not be of the width of the whole Lot ; for inasmuch as the ledge of rocks does not run direct from south to north, but diagonally towards the north-east, the width of that latter part of the portion, instead of continuing to be of the width of the whole Lot, would be gradually diminishing in width until it terminated in a point at the north-east. It would be too much to say that the language of the deed must necessarily receive this construction, and that it is incapable of any other ; but it is not too much to say that it is at least as capable of this construction as of the construction contended for by the Re- spondent. With respect to the argument, that if the parties had intended the eastern boundary to be that which is insisted upon by the Appellant, the deed would not have been worded as it is, but that intention would have been expressed in clear and unambiguous terms, that argument seems to bear not less strongly against the Respondent's view ; for it may be asked, with equal force, if the parties intended the ledge of rocks to be the eastern boundary, why did they not express that intention in clear and unambiguous terms. And with respect to the argument, that the careful descrip- tion of the ledge of rocks as running across the Lot could only have been introduced for the purpose of indicating the whole course of the ledge of rocks as the line of the eastern boundary, the answer is, that there was this sufficient reason for describing GASES IN THE PBIVT COUNCIL. [L. R. jr. 0. the ledge of rooks aa running across the Lot, namely, that (at 1887 appears from the map made by Vaughan, the Surveyor appointed fljj^w by the Court) there are >tli -r ledges of rocks in diiV.-n-nt parts of the Lot, which do not run across the Lot, and therefore the ledge of rocks in question was described as run n in;: across the Lot, in onl'-r that there might be no doubt which ledge of rocks was intended. With respect to the argument founded on the mention of tip- hemlock tree as the south-eastern boundary of the portion intended to be conveyed, it appears to their Lordships that this m- the hemlock tree as the south-eastern boundary, so far from sup- porting the Respondent's view, affords a strong argument the 01 way. The position of this tree, the stump of which still remains, appears from the evidence to be near to, but a little to the west of, the ledge of rocks where it crosses the southern boundary. Now, if the ledge of rocks through its whole extent across the Lot was intended to be the eastern boundary of the portion conveyed, why was the hemlock tree carefully specified as its south-eastern boundary ? Why was not the south-eastern boundary to be the foot of the ledge of rocks where it crosses the southern boundary of the Lot? If the foot of the ledge of rocks was a sufficiently defined eastern boundary throughout all the other part en course across the Lot, why was it not equally so at its extreme southerly end, where it crosses the southerly boundary of the Lot ? "Why was not that (an imperishable object) to be the south-easterly boundary of the portion of land intended to be conveyed? "Why was it thought necessary to select, as the object which was to mark the south-easterly boundary (i.e. the south-easterly corner) of the portion of land intended to be conveyed, so perishable a thing as a tree ? Why, indeed, was it necessary to specify any south-easterly boundary at all ? Why was it necessary to specify a south-easterly boundary more than a north-easterly boundary ? It seems impos- sible to account for this careful specification of a particular defined spot as the south-eastern boundary, and the selection of a par- ticular tree to mark that spot* consistently with the theory of the Respondent, that the parties to the deed intended the ledge of rocks along its whole course to be the eastern boundary of the portion of land thereby conveyed. But if, on the other hand, we VOL. I] CASES IN THE PKIVY COUNCIL. 451 adopt the theory of the Appellant, and suppose the intention J. C. to have been that the eastern boundary should be a straight line 1867 V-n^V^^ drawn from the southern to the northern boundary line parallel HEEBICK with the western boundary line, then, indeed, we see an obvious reason why it was necessary to specify a precise spot for the south- eastern corner of the portion of land, and why a tree was selected to mark that- spot in preference to the foot of the ledge of rocks. For to enable a surveyor or engineer to draw such a line from south to north, it would be necessary to have some precisely defined spot from which the line should start, and that that spot should be marked by a precisely defined object, such as a tree, and not by such an indefinite and uncertain object as the foot of a ledge of rocks where it crosses a boundary line, for a ledge of rocks does not (ordinarily at least) spring suddenly and perpendicularly from the ground, like a brick wall, so as to enable a person to lay his hand on any precise spot and say, that precise spot, and none other, is the foot of that ledge of rocks where it crosses the boundary line. The provision in the deed, that the hemlock tree should be the south-easterly boundary (that is, should mark the south-eastern corner) of the portion of land intended to be con- veyed, is fully and reasonably accounted for if the Appellant's construction be adopted ; but quite unaccountable according to the Kespondent's view. But suppose that, notwithstanding these reasons, the question, what the parties to the deed intended to be the eastern boundary, is still to be considered so doubtful that neither of the two con- structions contended for by the parties has any better claim to be adopted than the other, so far as any arguments can be drawn from that part of the language of the deed which we have hitherto dealt with, still, even upon that supposition, there is one consi- deration which seems decisive in favour of the Appellant's con- tention. It is a clear principle that if one part of a deed is so ambiguously worded that it is equally capable of two different constructions, one of which is in accordance with, and the other conflicts with, another part of the deed, about the meaning of which there is no doubt, the former construction must be adopted as the right one. And (as an instance of the application of that general principle) if, in a deed conveying land, the description of l.Yj CASES IN THE PRIVY COUNCIL. [I. J. C. the land intended to be conveyed is couched in such ambiguous i* terms thnt it is v r\ 1 -ul.t:'ul \\hat were intended to be the boun- ii ctt iui dariee of the land, and the language of the description equally v .^ admits of two different constructions, the one of which woul 1 make the quantity of the land conveyed agree with th- quui mention- 1 in the deed, an 1 th- other would ma ity altogetlu-r diflrn-nt, the former construction must ].r v;iil. Aj.jdy- ing thnt principle to the present case, the deed states tin- int< i to be to convey a about fifty acres :" The language of the deed with respect to boundaries is (for the present purpose) to be con- sidered as equally susceptible of each of the two constructions contended for : The effect of the one* construction is to make portion conveyed fifty-one acres, that is, "about fifty acres," quantity mentioned in the deed; whereas the effect of the o; construction is to make it no less than eighty-two acres instead of " about fifty acres." According to the principle before referred to, tin- former construction must prevail. Indeed it is impossible to read this deed, bearing in mind tli.- nature, and character, and condition of Lot 3 at that time, without feeling satisfied that the dominant idea and intention of the parties was, that out of this rectangular block of wild uncultivated wood- land which was known to contain about 140 acres, Captain Julin Ruiter should sell and convey to the two Kranses about fifty acres at the western end thereof, in consideration of 225 dollars. The question of boundaries was, to their minds, altogether subordinate to that of the quantity. It is not like the case of a conveyance of a certain ascertained piece of land, described precisely and accu- rately by its boundaries on all sides, adding a statement that it contains so many acres or thereabouts, in which case, if it turns out that the quantity is incorrectly stated, it shall not affect the transaction. It is the case of a conveyance of a certain number of acres, or thereabouts, to be taken out of a larger block of land, and never yet measured off or ascertained, followed by directions, ex- pressed in ambiguous language, as to the mode in which it is to be measured off. And, therefore, none of the authorities, or of the reasons which apply to the cases of clearly described boundaries, accompanied by an erroneous statement of the quantity, apply to the present case. VOL. I] CASES IN THE PRIVY COUNCIL. 453 Their Lordships are of opinion that the construction contended J. C. for by the Appellant is the true construction, and ought to be 1867 adopted. UEBMOK The Eespondent went into a good deal of evidence in the Court below, with the view of proving that the possession and enjoyment had always been in accordance with the construction of the deed which he insists upon ; but, upon examination, this evidence, so far from establishing an uniform, continuous, uninterrupted possession and enjoyment from the date of the deed, merely goes to shew that during the later portion of the period which has elapsed since that date, some scattered isolated acts, few and far between, and not of any important character, ntr satisfactorily proved to have been known to the owners of the eastern portion, have been occasion- ally done by some of the owners of the western portion of the Lot, upon that part which lies between the two boundaries asserted respectively by the Appellant and the Respondent, such as cutting some wood, or tapping maple trees for sugar, acts which, in the opinion of their Lordships, can have no effect in determining the rights of the parties under the deed of the 3rd of March, 1813. The same evidence is relied upon by the Kespondent, to support an objection which he raises to the action, that the Appellant is barred by the rule of prescription. By the law of Lower Canada the time of prescription is thirty years. Now, so far from proving (to use the language of his plea) " public, open, peaceable, unin- terrupted possession and ownership for a period exceeding thirty years " of the part of Lot 3 which is in controversy, no one of the occasional acts of ownership deposed to by the witnesses is proved to have taken place at a time nearly so far back as thirty years before the commencement of the action. The plea of prescription entirely fails. Upon the whole, their Lordships are of opinion that the proper boundary between the two portions of Lot 3, belonging to the Appellant and the Respondent respectively, is a straight line to be drawn from the hemlock tree before-mentioned, on the southern boundary line of Lot 3, across the Lot, parallel to the western boundary line, up to the northern boundary line. They will, therefore, humbly advise Her Majesty to reverse the decision of the Court of Queen's Bench, and to remit the cause to the Superior VOL. I. 3 2 M CASES IN THE PRIVY COUNCIL. [L.B. J.C. Court of Lower Canada, with iustrurtimm t.> that Court to make 1887 such orden, and take such step*, as shall be necessary and proper to make and establish the boundary between the two poi Lot 8, belonging to the A ppc-1 lant and Respondent respect i \ ! \ . \ > y ; i line drawn from the hemlock tree in the manner before-mentioned. The Respondent must pay the costs of the apj>< il to the Court of Queen's Bench, and also the costs of this appeal. Solicitors for the Appellant : Ashurst, Morris, & Co. Solicitor for the Respondent : La Petiottere. ' JOHN HADDOW CARMICHAEL AND OTHERS,) 1867 OWNERS OP THE SHIP " 3!.\ I IT ABAN ". . f ApPBLLANTS J \.-vv J FA, 27. AND JOHN BRODIE AND OTHERS, OWNERS OF TIIK SHIP "SIR RALPH ABERCROMBIE" AM. HER CARGO; STEPHEN H. DALY, SECOND MATE, AND OTHERS, PART OP THE CREW OP THE "MARTABAN;" AND THE MASTER, r OP THE OFFICERS, AND CREW OP THE "MARTABAN" RESPOND! THE SIR RALPH ABERCROMBIE." ON APPEAL FROM THE VICE-ADMIRALTY COURT OF SAINT HELENA. Salvage Compensation to owners of salving vessel deviating from her course Risk of salving vessel. In estimating salvage reward to the owners of the salving vessel, the cir- cumstances that the salving vessel deviating from her course might have vitiated the insurance, the possibility of being answerable to the owners of the cargo for such deviation, and the exposure to danger of the salving ship, in rendering salvage services, are elements to be taken into consideration. IX this case the appeal was brought from certain decrees of the Vice-Admiralty Court of St. Helena, in a salvage suit, instituted * Present : DB. LCSHIXGTOX, SIB JAMES WILLIAM COLVILK, SIB EDWABD VAUOHAS WILLIAMS, and SIB RICHABD TOBIN KINDEBSLET. VOL. L] CASES IN THE PEIVY COUNCIL. 455 in that Court by part of the crew of the ship Martaban against J. 0. the ship, Sir Ralph Abercrombie, and her cargo, brought into St. 18C7 Helena, and there seized as a derelict. CARMICHAEL The ship, Martaban, belonging to the Appellants, whilst on a BR ^ voyage from London to Bombay, on the 21st of May, 1865, met with the Sir Ralph Abercrombie, with signals of distress flying. KALPH ABER- The Martaban bore down to her, and when she got near, the Cap- tain and some of the crew of the Sir Ralph Abercrombie came on board her, stating that their vessel had lost her rudder, and was in distress. All hands abandoned her the next day, and the Captain of the Martaban, finding it impossible to induce the crew of the Sir Ralph Abercrombie to return, sent his second Mate, the Carpenter, and eight seamen, to take charge of her, and to navigate her to England, where she was bound with a very valuable cargo. The Martaban then proceeded on her voyage, but being ten hands short out of twenty-one, she was obliged to put into the Mauritius, where the Master and crew of the Sir Ralph Abercrombie were landed, and the Captain of the Martaban hired hands to supply the place of those put on board the Sir Ralph Abercrombie. Those on board the Sir Ralph Abercrombie navigated her successfully as far as St. Helena, where they arrived about the 22nd of June, 1865 ; but, some temporary repairs requiring to be done to her before proceeding to England, they put into St. Helena, where, on their arrival, the ship and cargo were seized as a derelict by the Vice- Admiralty Court. Upon these facts coming to the knowledge of the owners of the Martaban, they communicated with the managing owner of the Sir Ralph Abercrombie, and it was agreed between them that it would be to the interest of all parties concerned to have the ship and cargo released from the arrest as a derelict, and sent home to England, in order that she might earn her freight, and that, on her arrival, proceedings should be taken in the High Court of Admi- ralty of England to have compensation awarded for the salvage service. Steps were taken for that purpose, but before it was acted upon, the Appellant, Carmichael, received information that Daly, Young, and the eight seamen, had claimed salvage in the Vice- Admiralty Court at St. Helena, and that a sum of 12,000 had been awarded, not in respect of the second Mate, Carpenter, and IV, CASES IN THE FBIYT COUNCIL. J. C. eight 16*111611 only, but a.- : 1 salvage com pcnsat ion for the i > .: Ownere, Master, and all the crew uf the Martaban; and he was also pven to understand t ii.it no appearanoe had been entered on 1> oltheOwneacf the JforfakM at tl,.- tiiu- ti.i-* aum-i \\.is n;a!.-, but tli;; t had been made, and at tin- tim-- the Court was JLara Am- reqaested to apportion it, a Proctor had appeared for the o of the Martaban, and prayed to share in the di.strili; .t it appeared afterwards that such was not the fact, but t Proctor had appeared for the. Owners as Salvors, and filed a j i on their behalf before the salvage had been decreed. The t the Court (the Hon. W. B. Phdpt), by his decree, dated th- ith of September, 1865, apportioned the 12,000 thu< : To be set apart to meet the claims of the Owners of the Martaban (without indicating what sum would be awarded to them) .... 3,000. 0. And the remaining 9,000 thus : To Daly, the second Mate ...... 1,600. 0. To Young, the Carpenter ...... 1,400. 0. To the eight common seamen, in equal) UjUUv/. U. U portions ......... J 12,000. 0. ; pp ul \\ as asserted on behalf of the Owners of t iban, and the same mail which brought information of the abov< informed the Owners of the Martaban that the whole of the 9,000 had been paid away to the several persons above mentioned. As the Owners of the Martaban considered that an appeal from this decision would be fruitless, as it would be imj> the money after it had been paid away ; they instructed their Proctor to claim a due proportion of the 3,000 set apart to meet the claims of the Owners of the Martaban, and to assert an appeal, if necessary. The Judge of the Vice- Admiralty Court distributed the 3,000 in the following manner : TojDa/y ............ 2,000. 0. To the Owners of the Martaban ..... 600. 0. To the chief Mate of the Martaban ... 50. 0. And to the eight common seamen .... 350. 0. 3^000. 0. 0. CROJJBIE. VOL. L] CASES IN THE PRIVY COUNCIL. 457 An appeal was asserted on behalf of the owners of the Martdban, J. C. and the Proctor who had appeared in their behalf opposed the 18G7 payment of any portion of the 3,000 (which was then in the CAHMICHAEL Kegistry), until the result of the appeal had been ascertained, but BKOIUE. the protest was overruled by the Judge, and, after taking security J J THE" SIB Bonds, the 2,000 was paid out of the Registry to Daly's Proctor, RALPH ABEB- and the 350 to the Proctor for the eight common seamen, leaving the 650, awarded to the chief Mate and owners, in the Eegistry. The owners of the Martdban presented a petition of appeal to Her Majesty in Council, and moved the Judicial Committee to order the usual Inhibition, and also a Monition to transmit the 3,000 to the Eegistry of the High Court of Admiralty and appeals, which was granted. The Inhibition, with Monition to transmit the 3,000, was duly served. On the llth of February, 1867, the Appellants moved their Lordships to pronounce the Judge of the Vice- Admiralty Court of St. Helena, the Registrar, and others, contumacious, in not having obeyed the Monition, and to decree an attachment to issue against them for contempt, or a sequestration ; their Lord- ships, however, declined to make an order, but gave leave to move, upon the final hearing of the appeal, for an Order on the sureties to pay whatever might be found clue from them. The appeal now came on for hearing, and it was prayed that in the event of any alteration in the decree appealed from, that an Order might be made on the sureties to pay what sum might be awarded. The Queens Advocate (Sir E. Phillimore, Q.C.), and Dr. Deane, Q.C., for the Appellants : The mode in which the ^Court has awarded the salvage com- pensation is most unjust, and in principle wholly unprecedented. The Court below ought to have taken into consideration the claim for the risk and expense incurred by the owners of the Martdban in consequence of the assistance rendered to the Sir Ralph Abercrombie, and the deviation from her voyage rendered necessary thereby. Such deviation might have vitiated the insurance : Lawrence v. Sydebotham (1) ; The Henry Ewbank and (1) 6 East, 52. CASES IN THE PRIVY GOTO* cargo (1); The Orbona (2), The Scindia (3); and this ..n a ship i- : and cargo of the value of nearly 100,000. There was the pos- CXtwuniAn. Ability also of i .Mi- to tho owners of the cargo for such deviation. Moreover, the Martdban parted with ten of her hands i i . - t r . in rendering salvage serv i . . u iiioh weakened her crew and exposed BALTB Am- her to danger. The sum awarded to her owners, considering the H* risk and services rendered, iu totally inadequate as a salvage remuneration. Mr. Clarkson, for the Respondent, Daly : The services rendered by the crew of the Martalan who were on board the salved ship, especially this Respondent, the Mate, \\ rre most meritorious. It was only by extraordinary exertions, in great danger, that the ship was saved. In the exercise of the Court's discretion, the sum awarded him and others on board was a fair reward. DR. LUSHINOTON: The question in this case is, how their Lordships will recom- mend Her Majesty to dispose of the sum of 3,000, which has been reserved out of a sum of 12,000, the amount originally allot by the Court below as a compensation for the services which had been rendered to a disabled vessel, the Sir Ralph Abercrombie. The simple question is, how this 3,000 should be disposed of, having of course regard to the mode in which the remaining 9,000 has been distributed by the Judge of the Court below. It is not for their Lordships, even if we were desirous of undertaking the task, to say how the whole sum of 12,000 should have been allotted and distributed if it had been within our reach : but we must bear in mind what has been done, and, with reference thereto, consider the claims which are now made upon this 3,000. ro has been some discussion at the Bar as to the relative claims of the Owners of ships, and of the Masters and crew, who are the actual Salvors. But it cannot be necessary at this day to discuss those principles in any detail, because they have been so (1) 1 Simmer, Amr. Rep. 424. (2) 1 Spinks' Ecc. & Adm. Rep. 161. (3) Law Rep. 1 P. C. 241. VOL. L] CASES IN THE PRIVY COUNCIL. 459 constantly acted upon, and are of such every-day occurrence, that J. C. no one entertains any doubt as to the principles themselves ; and 1867 the only difficulty that ever arises, is to ascertain the facts so as to CARMICHAEL apply the principles to the individual case. BR ^ In the present instance the vessel to which the services were rendered was a ship of large dimensions, laden with a very RALPH ABEB- valuable cargo, and she was in a certain degree of distress, viz., she had, when she applied for assistance, lost her rudder, and I think she had three feet of water in her. It is not requisite or necessary that we should deliver any precise opinion as to the degree of distress in which she was. At the same time, it is but right to say that such a state of distress is not very uncommon, and in the Admiralty Court we should not consider that she was in very imminent peril, because, even without very skilled persons, a tem- porary rudder can be rigged up, so that she might, if there was tolerably fine weather, be got into a place of refuge if within any reasonable distance. However that may be, the Master of this vessel must have been actuated by the conviction that there was imminent danger, for it is clear that of his own accord he, in the first instance, abandoned the vessel. I state this because the evidence is uncontradicted that he went in his boat on board the vessel which ultimately rendered the salvage service he went with his wife, and with his chronometers all proving, or at least being primd facie evidence, that he did not intend to attempt to navigate his own vessel any further. The Master of the Martdban seems, in the first instance, to have been desirous of rendering such assistance as was in his power ; but it happened that a very short time afterwards the rest of the crew of this vessel, the Sir Ralph Abercrotnbie, quitted her and came on board the Martdban, so that in fact she became, in one sense of the word, a derelict vessel ; and then it appears the idea occurred that the Master of the Sir Ralph Abercronibie and his crew should all remain on board the Martdban, and that a less number of persons, with the assistance of the Carpenter belonging to the Martdban, should take charge of the vessel, and, I believe, in the first in- stance, with the view of taking her to the Mauritius. We need not, perhaps, endeavour to investigate with any very great nicety what was the original intention and how it came to be changed ; l.;u OASES IN THE PRIVY OOU>< [L. B. j.O. bat, upon my miii'l : mlly. there is an impref- th- i- : original int. ution was to hare taken her to the Mauritius in th fi* instance, which was at no very great distance off, and that afterwards the second Mate and the persons with him on board, finding that the vessel was capable of being navig IUi.ni A BKR- successful ly, thought it more expedient to take her to her IT I 'lace of destination, in nil probability, in the expectation tin -y would get a much larger reward. It is not necessary minutely to consider whether or not the Master of the Mariaban intruded to recall tin-so persons or not Considerable doubt and lifliriilty ini^ht arise in coming to a very decided opinion wl. the Master of the Mariaban, in recalling the second Mate, which according to tin 1 evidence he intended to do, intended finally to aliaii'lon this vessel or not AV<- think th--re would be some diffi- culty in coming to a positive determination thereon, so far as to say that he comes within that category, which has been p out, of a person who has utterly abandoned the salvage of a vessel, after having commenced to render service. However, be that as it the vessel is brought, under the guidance of Daly, the second Mate of the Mariaban, to its destination. This conduct, no doubt, is very praiseworthy, and he was very much assisted by the Car- penter who was on board, who constructed the temporary rudder, and who also undoubtedly afforded very great assistance. Of the sura of 12,000 awarded by the Vice- Admiralty Court of St. Helena, the allotment which has been made is to the following effect : 1,600 is awarded to Daly, 1,400 to Young, the Car- l>enter, and 6,000 amongst the eight seamen belonging to the Martaban who assisted in bringing the vessel, the Sir Ralph Abercrombie, safe to St. Helena. Now, the first consideration is, whether or not this allotment of 9,000 out of the 12,000 salvage to the second Nate and others who took the vessel to St. Helena, is an adequate reward to them for their services, or whether Her Majesty ought, in justice, and according to the usual rule of allotment for salvage service, to increase it out of the remaining 3,000. Their Lordships are of opinion that the sum of 1,600 is an ample reward for the services Daly rendered, even estimating them as high as you may. He does not appear to have incurred VOL. I.J CASES IN THE PRIVY COUNCIL. 461 any great risk or any great danger. At one time, no doubt, there J- 0. was tempestuous weather, and then there might be a certain 1867 degree of difficulty ; but 1,600 is a very large reward to give a CABMICHAEL person in his situation for the services which he performed. BBODIE We next come to consider what, out of this 3,000, ought to be ' ' f THE " Sre given to the Owners of the Martaban. We think it is quite right KALPH ABEB- that the claims of the Owners should be considered, not only on ' account of the doubt whether the insurance might not be vitiated, and whether the Owners of the ship might not become responsible to the Owners of the cargo for the acts of their servants in de- viating from their course to render the assistance, and weakening the crew, but also for the risk to which their property has been exposed in rendering the service, and which in justice ought to be made good to them. Now, to say nothing of the deviation, it is quite clear that nine or ten of the most useful servants on board the Martaban were taken away and placed on board the Sir Ralph Abercrombie. It is said that an equal number, indeed a larger number, of men went on board afterwards ; but it is a very dif- ferent thing to take away a large part of the crew accustomed to perform their duty under the guidance of the Master of the Mar- taban and to put in their place a set of persons of whom he knows nothing, and who, according to the appearance they make in this case, undoubtedly were not the people to render very valuable assistance. We, therefore, think that the Owners are entitled to due consi- deration at the hands of this Committee, and, therefore, their Lord- ships intend to recommend Her Majesty to allot to them a sum of 2,000 out of the 3,000. With regard to the remaining 1,000, we award to the Master of the Martaban 300 ; and I think it right to observe that in all probability we should have given a larger sum than 300, if it had not been, so far as we can make out from the evidence, that there was a certain degree of vacillation on his part, which deprives him of the highest merit ; but we give the 300 upon this prin- ciple, that it is a very great responsibility for the Master of any Merchant vessel, especially one which contains a very valuable cargo, to weaken his crew to the extent which this Master weak- ened his crew in order to assist another vessel ; in fact, it is ex- VOL. I. 3 2 N !,;_ CASES IN THE PRIVY COUNCIL. [L. B. J. O. poring the interest* of the Owners committed t< > i-< ; considerable risk, and tiiat is a great responsibility. \\< tliii **> l kin g a* a11 tho fm>t * tlmt ^ }0 w iH l 8ufti< Then we award to the rhi.-f Mute, whose duties beyond all doubt, must have been increased, and whose labours must have BALI* An* been the greater, tho sum of 150 ; and 550 to tho rest of the crew of the Martdban, according to their respective ratings, whi--Ii exhausts the sum of 3,000. Their Lordships \\ill humMy recommend Her Majesty to < that the decree or Order of the Judge of the Vice- Admiralty Court of St. Helena of the 23rd of November, 1865, be reversed, the cause retained, and the said sum of 3,000 apportioned in the manner stated in this judgment, each party paying his own costs of this appeal. A Monition will issue against the sureties, and in case tin- \\In.li- 3,000 is not recovered, all parties must take pro raid. Proctors for the Appellants : Deacon, Son, & Rogers. Proctors for the Respondents : Clarkson, Son, & Cooper. VOL. I] CASES IN THE PRIVY COUNCIL. THOMAS BURNE SIMPSON APPELLANT; j. c. AND 1867 THOMAS FLAMANK RESPONDENT. .foUTis ON APPEAL FROM THE ARCHES COURT OF CANTERBURY. Church Discipline Act (3 & 4 Viet. c. 86, s. 20), construction of Commissioners' authority Form of citation or 'decree under s. 13. In a Commission issued under the Church Discipline Act, 3 &4 Vict.c. 86, it is not necessary that the offences complained of should be stated to have been committed within the two years limited by sec. 20 of that Act, if they are charged and admitted as continuing offences. No appeal is given by the Act, 3 & 4 Viet. c. 86, either to the Arches Court, or thence to Her Majesty in Council, from the decision of the Com- missioners, on the regularity or irregularity of the proceedings before them. A citation or decree issued by the Court under Letters of Request being in the form prescribed by the rules made pursuant to sec. 13 of the Act, it is no valid objection that it does not state the offences complained of to have been committed within two years, the time prescribed. It is sufficient if the Letters of Request, which are the foundation of the suit, allege that fact. JL HE APPELLANT in this case was the Incumbent of the per- petual Curacy and Parish Church of East Teignmoutli in the County of Devon, in the Diocese of Exeter. The Eespondent was a Parishioner, and one of the Church- wardens of that Parish. The suit in which the Interlocutory Order appealed against was made, arose from a complaint brought by the Respondent before the Lord Bishop of Exeter, pursuant to the Church Dis- cipline Act (3 & 4 Viet. c. 86), touching certain ceremonies used by the Appellant during public service in the Parish Church. The complaint, which was dated the 21st of May, 1866, set forth the practices objected to in the following form: "First, that the Appellant has lights on the Communion Table when they are not required for the purpose of giving light ; second, that in the administration of the Holy Communion, immediately before the prayer of consecration, the Appellant mixes water * Present : THE LORD PRESIDENT (TnE DUKE OF MABLBOBOUGH), THE ABCH- BISHOP OF YORK, LORD CAIRNS (LORD JUSTICE), LORD JUSTICE' TURNER', SIR EDWARD VAUGIIAN WILLIAMS, and SIB RICHARD TORIN KINDEUS^Y. VOL. L 320 i; i CASES IK Tire PRIVY COUNCIL. i i:. \uth the wine; third, that after Baying the prayer of conae- 1887 cratiun, tin- API* Hunt raises tin- I'at-n \\ith lx>th hands o\<-r his Bnnox head, and the ('uj> in lik<- manner; fourth, that when the alms collected at the Offertory are brought to be placed on the < m union Table, the Appellant places the same on a stool U side of the Table, instead of on the Communion Table ; and, ii that in saying the last prayer of the Morning and Evening Sen the Appellant omits ' all' in the concluding sentence." The Bishop, having pvt-n due notice to the Appellant, issued, on the 20th of June, 18G6, a Commission to certain Commissioners therein named, empowering them to make inquiry as to tii-- grounds of the charges so made by the Respondent against the Appellant. On the 7th of July, 1866, previous to the meeting of the Commissioners, notice was given on behalf of the Appellant, that at the sitting of the Commission he would admit the facts alleged in the complaint of the Respondent. The Commissioners met on the 10th of July, when a preliminary objection was taken on behalf of the Appellant ; that the offences were not charged to have been committed within two years, according to the provisions of the Act, 3 & 1 Yirt. c. 86, s. 20. The Commissioners overruled the objection, when the Appellant formally admitted the facts above stated in the complaint of the Respondent ; and, after taking the depositions of witnesses in con- firmation thereof, the Commissioners declared their opinion to be, that there was sufficient primd facie ground for instituting further proceedings. By Letters of Request the Bishop of Exeter sent the case to the Court of appeal of the Province of Canterbury, to issue a citation, and a decree or citation accordingly issued, calling on the Appellant to answer the charges of the Respondent. The Letters of Request alleged the offences charged to have been committed within two years then last past. Articles were exhibited and filed on behalf of the Respondent. On the 3rd of November, 1866, no appearance under protest or other form of objection to the decree or citation having been made, a preliminary objection to the admission of the Articles in form but, in substance, to the decree or citation was taken by the Appellant, to the same effect as had been previously urged before the Commissioners namely, that neither the Com- VOL. I.] CASES IN THE PRIVY COUNCIL. 46 mission which authorized the Commissioners to proceed, nor the J. C. citation or decree under which the Letters of Request were issued, 1867 expressly stated, that the offences charged had been committed SQU-SOK within two years then last past. The objection so limited was F v ' argued, and, on the 26th of November, the learned Judge of the Arches Court (The Right Hon. Dr. Lusliingtori) delivered'judgment overruling the objection. The learned Judge was of opinion, re- garding the decision of the Commissioners, that he had no authority to inquire into that decision, there being no appeal given by the Act from their report ; he, moreover, held that, under the authority of Ditcher v. Denison (1) and The Bishop of Hereford v. T. (2), it was clear that not only his jurisdiction, but that the suit or proceedings to which the Act affixes the limit of two years from the commission of the offence, commenced from the issuing of the citation or de- cree ; he was also of opinion that the charges referring to a con- tinuing practice, and being made in the present tense, necessarily implied that they were offences continuing up to the time of issuing the decree ; and that the Letters of Request contained a sufficient allegation that the charges referred to offences com- mitted within two years then past. He, therefore, refused to sustain the preliminary objection raised to the admission of the Articles charged. On application for leave to appeal to the Queen in Council, the Court gave permission. The Queens Advocate (Sir E. Phittimore, Q.C.), Dr. Deane, Q.C., and Mr. Hannen, for the Appellant : We limit our objection to the admissibility of the Articles to the points of form taken in the Court below. These proceedings cannot be sustained. First, because the Commission issued by the Bishop to inquire into the charges made, and authorizing the Commissioners to proceed, did not state that the offences into which they were to inquire had been committed within two years. Secondly, the same error pervaded the decree or citation issued from the Court of Arches in pursuance of the Letters of Request from the Bishop. The period of two years is made essential by the 20th section of the Church Discipline Act, the 3 & 4 Viet. c. 86, under which the proceedings in this case were taken ; that section (1) 11 Moore's P. C. Cases, 324. (2) 2 Rob. Ecc. Rep. 604. 3 202 |,;. CASES IN THE PRIVT COUNCIL [L.R. enact* M that every gait or proceeding against any Cl< iU in link i - Orders for any offence against the Laws Ecclesiastical, shall be $r*i*m commenced within two years after the commission of the offence y^' in respect of which the suit or proceeding shall 1* instituted, and not afterwards;" and the 23rd section provides, "that no riminal suit or proceeding against a Clerk in Holy Order* y offence against the Laws Ecclesiastical, shall be instituted in any Ecclesiastical Court otherwise than hereinbefore ena r provided." This being a criminal proceeding leading, if the -barges made are proved, to suspension or deprivation, the utmost strictness is requisite, and the Appellant is entitled to every provision made for his protection : PcHey on Convictions, p. U3. Neither the Commission issued in the first instance by the Bishop, nor the decree by Letters of Bequest issued from the I ;. gistry of the Arches Court, alleged, as they ought to have done, that the offences charged had been committed within two years then last past If there was no appeal from the Commissioners to the learned Judge, on the validity of the objection to the form of the Commission, the Court below undoubtedly had authority to decide the point as regarded the decree issued by that Court, and we are clearly entitled to the full benefit of the objection taken there. The case of Ditcher v. Denison (1), which was relied on by the learned Judge in the Court below, decided that the citation was the commencement of the suit, and, if so, surely that instru- ment ought to allege the commission of the offence within the two years, as required by the 20th section of the Act. The case of the Bishop of Hereford v. T. (2), also relied on by the Court below, di'tennincd that the issuing the decree or citation was the com- mencement of the suit. It is no answer to the omission in the Commission or decree, that the offences, are alleged in the Articles to have been committed within the requisite time ; in a criminal Miit it is not competent to the Promoter to set forth in the Articles an offence not contained in the citation : Breeks v. Wodfrey (3). By the 13th section of the Act, the Bishop of the Diocese in which the Clerk offending holds preferment may send the cause in the first instance to the Court of appeal of the Province, without (1) 11 Moore's P. C. Cases, 324. (j>) 2 Rob. Ecc. Rep. pp. 595, 604. (3) 1 Curt. Ecc. Hep. 880. VOL. L] CASES IN THE PKIVY COUNCIL. issuing any commission of inquiry into the alleged offences ; and the Judge of such Court is empowered to make orders for expe- diting such suits, or otherwise improving the practice of the Court. Had the case, therefore, been so sent to the Arches Court it must have been heard there according to the law and practice of that Court. Now, the first of the Rules and Regulations directed to be observed in all causes, suits, or proceedings instituted in the Arches Court of Canterbury, which have been made pursuant to this autho- rity, and are now in force, provides " that all decrees, citations, monitions, inhibitions, compulsories, and other instruments under seal, shall be prepared in and issued from the Registry of this Court in forms to be approved of by the Judge, on written applica- tion (from the Proctor of the party or parties requiring the same, and signed by him), and no act of Court shall be necessary to lead such decrees or other instruments, and the same shall bear date on the day on which they are respectively issued," and a form of a decree is annexed to this Rule. It is said that this Rule and form of decree contain no direction regarding the period within which the offence complained of must be laid to have been com- mitted. The form, however, is, like the Rule, general, and intended to be made applicable to all cases indiscriminately ; it cannot be held to exclude the absolute requirements of the Statute as to time, which are imperative, and must appear on the very face of the proceedings. Mr. A. J. Stephens, Q.C., Dr. Swdbey, and Mr. H. R. Droop, for the Respondent, were not called on. Their Lordships reserved their judgment, which was now delivered by THE LORD ARCHBISHOP OF YORK : Their Lordships having heard the case of the Appellant elabo- rately argued, have not thought it necessary to call upon the Counsel for the Respondent, and are now prepared to state the reasons for the advice which they propose humbly to tender to Her Majesty in reference to this appeal. It was, in the first place, contended that the Commission issued on the 20th June, 1866, by the Lord Bishop of Exeter, did not J. C. 1867 > ***> SIMPSON v. FLAMANK 1867 v^V~/ June 29. .|i;s CASES IN THE PRIVY COUNCIL. [L. R. j. 0. state on (ho face of it that the offences mentioned in it had i- : been committ* i \\itliin tin- two years defined by section 20 of the Act. 84 I Vii-t. c. 86, and that, tln-n-lotv, the report of the Com- _ * missioners, and all the subsequent proceedings, wen- invalid. Their Lordships are unable to see any foumlati.M t"i tin's argument The Statute, although it prescribes a limit <>f time within which the proceedings by Commission must be commenced, is silent as to any specific form of, or statements in, the Commis- sion ; and the notice of the Commission, which the Statute requires to be given to the person accused, is to state the nature of the oflVno , \\ith the names, addition, and residence of the party on whose application or motion the Commission is about to issue, and nothing more. The Commission and the notice in the present case allege with substantial, if not with technical, distinctness, that the offences which are charged are continuing offences; and the Appellant, when he appeared before the Commissioners, objected by his Counsel, not that the offences were not in fact committed within two years, but merely that they were not alleged to have been so committed ; and this objection having been overruled, the Appel- lant admitted the facts mentioned in each of the charges. Tli> Appellant, therefore, has in no way been misled or prejudiced in the course of his defence before the Commission ; and this part of the appeal against the form of the proceedings is, in their Lord- ships' opinion, wholly without justification. Their Lordships, however, although they have entered into the merits of this objection of the Appellant, desire to express no dissent whatever from the view of the Dean of Arches, that the proceedings before the Commissioners would not be open to appeal before the Arches Court on the score of irregularity ; and this part of the appeal to Her Majesty would, on this ground also, fail. It was argued, in the next place, that the decree or citation from the Arches Court ought to have stated, and did not state, that the offences alleged had been committed within two years previous to the citation. The case, it was said, if sent by the Bishop, under section 13 of the Act, to be heard before the Court of appeal of the Province, must be there " heard and determined according to the law and practice of such Court," and the practice of the Court VOL. I.] CASES IN THE PEIVY COUNCIL. 4( of Arches, it was contended, required that the decree should shew J. C. on the face of it jurisdiction in this respect. 1867 The Appellant did not raise this objection in the Court of SAMPSON Arches by appearing under protest. On the contrary, he appeared F ^ absolutely to the citation, and prayed Articles; and afterwards opposed, on this ground, the admission of the Articles. Their Lordships will, in favour of the Appellant, assume, although they would hesitate to decide, that it was open to him, after appearing and praying Articles, to object to the citation in point of form : and they will also assume in his favour, although they think it open to doubt, that the statement in the citation of offences as continuing offences did not sufficiently shew a jurisdiction under the Statute. The Statute, however, by section 13, provided that the Judge of the Arches Court should have power to make orders for expediting suits under the Act, or otherwise improving the practice of the Court. It appears that by the Kules or Orders of the Arches Court, made under this Statute, and in force at the time of this citation, a form of citation or decree was given, approved of by the Judge ; and in this form, obviously intended to shorten what had been previously in use, no provision is made for the specification of the offence, or for a statement of the time when or within which it was committed ; but the Letters of Kequest are referred to as remaining in the Kegistry of the Court, and as being the foun- dation of, and, therefore, shewing the jurisdiction to issue, the decree. The form of decree citing the Appellant appears- to their Lordships to have been in accordance with the form given by these orders ; and the Letters of Kequest which the decree refers to contain an express statement that the offences alleged were com- mitted within two years. The decree appears, therefore, to their Lordships to be in accordance with the practice of the Court ; and they are unable, as to this, as well as in the case of the other objection, to look upon it otherwise than as groundless, and made only for the purpose of delay. Their Lordships will humbly advise Her Majesty to dismiss the appeal with costs. Proctors for the Appellant : Brooks & Co. Proctors for the Respondent : Tebbs & Sons. CASES IN THE PRIVY COUNCIL. [L. It J-C.- EDWARD MAUGEU Vm ls : AKD ^Tlz. GK< >K( ffl B( < IT r l.i: CALLAIS AND OTHERS RESPONDENTS. i ON Apri:.\i. ri:')M TIII-: ROYAL COURT OF JERSEY. Jersey IMW ofActe of States, 24th June, 1851, Art*. 8 and 10 Holograph Will Real Eskilc Attestation clause. Article 8 of the Ack of the States of Jersey, of the 24th of June, 1851, confirmed by the Order of Her Majesty in Council of the 7th of August, 1851, containing the law relating to Wills, provides as follows: "Pour gue la legt d'immeulles contemn dans un Testament toient valables, U faut quele Ttstateur, en pretence des deux temoins, ait oppose sa signature a la fin, ou nil recon nu sa signature ainsi oppose, et que Its deux temoins present en meme terns aient alors nppose leurs signatures au Testament, en presence du Testateur, Si le Testament n'est pas olographe, la lecture en sera fa He en prAence du Testateur et des deux temoins. Pour qu'un Testament olographe soit tollable, rattestation des temoins devra elre datce." Article 10 declares : *' Lts legs oTimmeubles, fails dans les quarante jours jui ont precede la mart du Testateur, seront nuls, a moins que la mart n'arruw par cas fortuity To a holograph Will, disposing of both real and personal estate, dated and signed by the Testator in the presence of two witnesses, an attestation clause was appended, in the following terras : " Le present Testament olographe a etc signe par le Testateur en notre presence, et nous y avons oppose notre signa- ture, comme tenurint, en presence du dit Testateur, et en presence run de fdtitre, le dit jour ;" Htli, affirming the judgments of the Inferior, as well as the Superior Number of the Royal Court of Jersey, that the words " le dit jour" in the attestation clause, referred sufficiently to the date contained in the Will, to comply with the requisition of the 8th Article ; and that the Will being holograph was, notwithstanding the provisions of Article 10 of the Act 1851, a valid and efficient instrument. 1HIS was an action brought to set aside the Will of the Rev. Samuel Wright, late of the parish of St. Johns, in the Island of Jeney, and to have the same declared by the Royal Court null and void, so far as the same purported to dispose of the Testator's real estate in the Island. By his Will the Testator (inter alia) gave all the real estate * Present: LORD JUSTICE TURNEK, SIB EDWARD VAUGHAN WILLIAMS, and SIB RICHARD TOBIN KIXDERSLET. VOL. I] CASES IN THE PRIVY COUNCIL. 471 which he then possessed, or which he might possess, in the Island J. C. of Jersey at the time of his decease, and which was of the nature 1867 of " Conquets et Acquets " unto his wife, Marie Le Gallais, abso- , MAUGEE lutely, subject to the payment of the charges which might be due thereon, and he appointed her Executrix. The Will was dated the 10th of March, 1863, signed by the Testator in the presence of two witnesses, who attested the same, and the attestation clause to the Will was in the words following, " Le present Testament olographe a ete signe par le Testateur en noire presence, et nous y avons appose noire signature, comme temoins, en presence du dit Testateur, et en presence Tun de Tauire, le dit jour. Jas. Le Brun, un des Ecrivains de la Cour Royale ; Jean Bailhache, Temoins" The Will, as well as the attestation clause, was wholly in the handwriting of the Testator, and was propounded by Marie Le Qallais as a holograph Will. The Testator died on the 16th of June, 1863, without having revoked or altered the Will, which was proved by Marie Le Gallais in the Ecclesiastical Court of the Island of Jersey on the 30th of June, 1863, and was registered in the Eoyal Court of the Island on the 8th of July, 1863. The eighth Article of the Acte of the States, of the 24th of June, 1851, approved and ratified by Her Majesty's Order in Council of the 7th of August, 1851, which is the existing law of Jersey relating to Wills, is in the words following : " Pour que les legs d'immeubles contenus dans un Testament soient valables, il faut que le Testateur, en presence des deux temoins, ait appose sa signature a la fin, ou ait reconnu sa signature ainsi apposee, et que les deux temoins presens en meme terns aient alors appose leurs signatures au Testament, en presence du Testateur., " Si le Testament nest pas olograplie, la lecture en sera faite en presence du Testateur et des deux temoins. "Pour qu'un Testament olograplie soit valdble, Tattestation des iemoins devra etre datee. " Un des temoins devra etre un des Membres des Etats, un des Offi- ciers de la Reine pres la Cour Royale, un des Avocats du Barreau, ou un des Ecrivains de la Cour Royale. " Les formalitcs ci-dessus seront observees sous peine de nullite" 17j GASES IN THE PRIVY C< [L. R. J. U. By the truth Arti.-l.- it \< further enacted: " Let legs cT I- . fait* dan* fo yaran/o jours qui ont precede la mart du Tettaieur MAVOKR 9tront nu/*, a woiiw tn /a wuxrt n'arnve par ca*fortuit. n * The Appellant was the eldest son of Edward Mauger and .V Elizabeth Wright, his wife, deceased, and principal heir of his Mother, who was the only si-t> r >r the Testator, and as such prin- cipal h ir ..f his Mother tho Appellant was the principal collateral :r of tli.- Testator, who died without issue, and as such rutitled to the possession of the whole of the real estate of the Testator, undisposed of by his Will, until partition thereof between the Appellant and his co-heirs. The Appellant's case was that the words " le ditjour " in the attes- tation clause to the Will of the Testator did not constitute a date to such attestation clause within the meaning of the eighth Artie! the law relating to Wills of real estate, and that consequently the Will, so far as related to the disposition of the real property of the Testator in the Island of Jersey, was invalid, and, therefore, that he, as principal heir of the Testator, was entitled to the whole of the real property of the Testator. The Appellant, as such principal heir of the Testator, actioned Marie Le Gaflais before the Royal Court of the Island of Jersey for the purpose of having the Will, so far as related to the disposi- tion of real estate, declared null and void, on the ground that the attestation of the persons who signed the Will as witnesses was not dated in obedience to and within the meaning of the disposi- tion in the law as to Wills of real property, which declares that in order to make a holograph Will valid the attestation of the \V it nesses shall be dated. The cause was heard before the Inferior Number of the Royal Court of the I>lun 1 of Jersey, who, on the 2nd of December, 1863, gave their judgment that the reasons of the Appellant for de- claring the W'ill to be null and void were not well founded, and dismissed Marie Le Gaflais from the action, giving the Appellant leave to appeal from such decision to the Superior Number of the Court. Marie Le Gallais died on the 18th of October, 1864, before the appeal of the Appellant could be heardj by the Superior Number of the Royal Court, having made her Will, bearing date the VOL. I.] CASES IN THE PKIVY CODICIL. 473 5th of August, 1864, whereby (inter alia) she gave and devised j. c. one moiety of her real estate unto her nephew, the Kespondent, 1SG7 George Scott Le Gallais, absolutely, and also gave and devised the MAUGEB other moiety of her said real estate unto her brother, William _ * J LE George Le Gallais, for life, and from and after the decease of William George Le Gallais, she gave and devised the last men- tioned moiety of her real estate unto the Kespondents, John Edward Le Gallais, George William Le Gallais, Philip Bertaut Le Gallais, Edward John Le Gallais, Agnes Caroline Bereton Acorn Le Gallais, and Mary Ann Le Gallais, the children of William George Le Gallais, absolutely. In consequence of the death of Marie Le Gallais, pending the appeal, and of her having bequeathed her real Restate in manner above mentioned, it became necessary to make the above-named legatees parties to the appeal, as representing Marie Le Gallais deceased. John Godfray was duly appointed by John Edward Le Gallais as his Procureur in the Island, and the Eespondent, Francis Amiraux Godfray, was also duly appointed by the Royal Court of the Island Administrateur of the property of George William Le Gallais, Philip Bertaut Le Gallais, and Edward John Le Gallais, who were absent from the Island, all of whom, together with the parties' Procureur and Administrateur, as such, were made parties to the appeal from the judgment of the Inferior Number. On the 22nd of November, 1865, the majority of the Superior Number of the Royal Court confirmed the judgment of the Inferior Number, and condemned the Appellant to the costs, giving leave to the Appellant to appeal to Her Majesty in Council. William George Le Gallais departed this life on the 29th day of December, 1865, without having made any Will, leaving John Edward Le Gallais, his eldest son and principal heir him sur- viving. William George Le Gallais had only a life interest in a moiety of the real property devised by the Will of Marie Le Gallais as aforesaid. John Godfray, the Procureur of John Edward Le Gallais, renounced the procuration ; and the Respondent, Francis Noel Giraudot, was, on the 24th of November, 1865, appointed by CULBH IN Tin: i'iiivv n.rNcir. [KB. the Royal Court of Jeney Adminittraleur property of John '- ' Edward Le GaJlait, who was absent from the Islam 1. *~~*~ ' MACOBB By an Order in Council, batting re< l that the appeal 1 1, as against Francis Noel Giraudot as " Administraleur" of John Edward Le Gattait in the place of John Godfray, and as against John Edward Le Gattait as piin< i{ul heir of his father, William George Le Gallais, Her Majesty s Procurator General for Jersey (M. Maretf), and Mr. W. Slreeten, for the Appellant : The attestation of the witnesses to the Will of the Testator is not dated as required by the law relating to Wills of real estat- the Island of Jersey. The words in the attestation, " le dit jour" are not in themselves a certain date. They are capable of being construed as a date, only by referring to the date in the body of the Will The Will is a holograph Will, and, as such, it is not requisite by the law of Jersey that it should be read to the witnesses, or in their presence. Its contents, and, therefore, its date, are in contem- plation of law unknown to them. A reference to the contents in order to establish the date of their attestation, is not a compliance with the injunction of the law, which requires the witnesses in the attestation clause to give the contents of the Will a date, which must mean a certain date. Again, if the words "le dit jour" at the end of the attestation clause, are to be deemed a sufficient date \\itliin the meaning of the eighth Article of the law of 1851 : su-.-h a construction would totally set aside the intention of the Legis- lature in providing that the attestation clause of a holograph Will shall be dated. The object of such intention is, that as a holo- graph Will is not required to be read over to the Testator in the presence of the attesting witnesses, there must be some evidence on the face of the Will, and yet apart from the Will, shewing what was the real day on which such holograph Will was executed. This is of the utmost importance, because by Art. 10 of the law of Wills no disposition of real property is valid which is made within forty days preceding the death of the Testator : Lois et Eeglemens des Etats de Jersey qui ont recu la sanction Eoyale, depuis 1771 ; Acte de Testamens, 24th June, 1851, and Order in Council VOL. L] CASES IN THE PRIVY COUNCIL. '47.-, confirming same of the 7th of August, 1851, Article 8 and 10. J. C. It is clear, therefore, that any relaxation of the rules relating to 1807 the form of Wills of real property which require that the attestation MACOE to a holograph Will shall be dated, will open a door to fraud, by j ^ giving a Testator, desirous of disposing of his real property, an opportunity of ante-dating his Will, so that the same may appear to have been executed more than forty days before his death. This, it is evident, it was the intention of the Acte regarding the law of Wills to prevent, by requiring that the attestation clause to a holograph Will shall be dated. The decision of the Courts below renders nugatory such precaution. Mr. Glasse, Q.C., and Mr. D. Gardiner, for the Kespondents were not called upon. SlR KlCHARD T. KlNDERSLEY : Their Lordships do not think it necessary to call on Counsel for the Respondents. This is an appeal from the decision of the Koyal Court of Jersey, by which it has been determined that the Will of Mr. Wright, dated the 10th of March, 1863, was duly executed and attested in the manner required by the law of Jersey to pass real estate. The law of Jersey, as applicable to this case, is contained in an Order in Council dated the 7th of August, 1851, and the Acte passed by the States of Jersey on the 24th of June of that year. The object of this Aete and Order in Council was, as stated by the learned Procureur-Gent'ral of Jersey, to introduce for the first time the testamentary power so far as relates to real estate ; and it introduced it to a limited extent, and required certain specific forms and ceremonies to be observed ; and if those forms and cere- monies are not duly observed the Will, so far as relates to real estate, is invalid. The Article of the Order in Council especially applicable to this case is Article 8. The first portion of that Article relates to the manner in which the Will must be executed by the Testator and attested by the witnesses. It is in these terms : " Pour que les legs d'immeubles contenus dans un Testament soient valablcs, U faut CASES IN THE PRIVY COUNCIL. [L. B. i- . gue JeTedateur, en presence des deux temoins, ait appost sa signature 1M7 M pretence du Testatfur." Now, stopping there for a moment, this is one of the n , tho non-observanoe of which renders the Will of realty invalid. 1 1 is clear that it r. quires nothing to be stated upon the attesti with respect to the observance of this formality. It only that the fact should 'be so, leaving the proof of it to evidence. It may be usual, as it is \\iih us, to express in the attestation that the formalities were observed; but tlicre is no necessity, according to this clause of the Order in Council, any more than there is a necessity according to our law under our Witts Act, that this should be stated on the face of the attestation ; so that if it were questioned whether these formalities were duly observed, the fact would have to be proved by evidence in tli.- ordinary course. The next clause is: "Si le Testament nest pas olographe, la lecture en sera fait e en presence du Testateur et des dews temoins." It must have been read over. It may be usual, and no doubt ex- pedient, to express on the face of the attestation that that was observed ; but it is no more necessary in that case to express upon the face of the attestation that this formality was observed than in the other case. Then we come to that clause which is more especially applicable to the present case : " Pour quun Testament olographe soit valaWe, Taitestation des temoins devra etre datee ;" and the question is, what construction is to be put upon this clause. It is clear that the attestation must be " dated," in the sense in which that term is to be read, or else it will be void. It may be a question what was the particular reason for making that requi- sition ? The learned Procureur-General has stated reasons more or less satisfactory, which may be the true reasons. Assuming that the reason was, as it has been suggested, that you might know on the face of the attestation when the Will was actually executed and attested, with reference to the question of whether it was executed and attested prior to the commencement of the forty days preceding the death of the Testator, it is difficult to see VOL. L] CASES IN THE PKIVY COUNCIL. 477 why a similar requisition was not made with, respect to a non- J. C. holograph Will ; and it seems hardly satisfactory to say that, in the 1867 case of a non-holograph Will, its being read over makes it vmne- cessary that the attestation should be dated, because the reading LE over of the non-holograph Will would not in any way shew upon the face of the attestation, nor would it shew upon the face of the Will necessarily, when the Will was executed and attested. A Will might contain no date, and it is not contended that a Will without a date would be invalid on that ground. A Will might have a date, but the date might have been put to it at a time antecedent to the time at which the execution and attestation took place. It might even have been previously not only dated, but signed by the Testator, because all that is required is, that he should acknowledge his signature in the presence of the witnesses. Therefore if the reason for requiring the dating of the attestation to a holograph Will be in order that upon the i'ace of the attestation you may see what that date was with reference to the question of the forty days, it is difficult to see why a similar requisition was not made in the case of the non-holograph Will. It is, however, unnecessary to determine what the particular reason was for introducing this clause requiring the dating of the attestation. It is sufficient to say that it was intended that upon reading the attestation you should know what the date was ; and the only question is, may you not know that just as well by the date being given by refer- ence to the date of the Will, which is on the same paper with the attestation, as if that date were repeated in words and figures in the attestation itself? It is contended that under the true construction of this clause requiring the dating of the attestation, it is absolutely necessary that there should be no reference to anything whatever extrinsic to the attestation ; that you must not refer to anything but the attestation ; and if, shutting your eyes to everything else, you do not find the date upon that attestation, it is bad. Now, their Lordships are of opinion that that is an assumption which is not well founded. If the reason for the requisition be, as clearly it must be, whatever ulterior reason there may have been, that it might be known from the attestation itself what the date of the execution and attestation actually was, it appears to their Lordships CASES L\ TIIK i OUNCIL. [L. fl. that that object is just as well i the attestation is as 1887 effectually date I. l\ the rvlWmr.' to the date of th- Will on MM-GKK same paper as by repeating it in full, provided always t IM GALLAI*. * toe ^ contains only one single date. If indeed tin- Will contained not only the date of the Will, but also some other date with r once to another matter, then it would bo ambiguous and doubtful \\hat was meant by " I that it should be dismissed \\ith costs. Solicitors for the Appellant : Hancock, Saunders, & Hawksford. Solicitors for the Respondents : Dangerfidd d' Eraser. VOL. L] CASES IN THE PEIVY COUNCIL. 479 THE BANK OF UPPER CANADA .... APPELLANTS; J.c.* AND 12 JAMES LEWIS BRADSHAW AND OTHERS RESPONDENTS. Jn*2* 25, 26. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA. Principal and Agent Scope of authority of Manager of Sank Action by Banking Company against the late Manager and Cashier for negligence and misconduct in application of funds. In an action brought by a Banking Company against their late Manager and Cashier to recover moneys belonging to the Bank, alleged to have been improperly applied in discounting Bills, &c., for his own advantage, for the benefit of parties and Companies with whom he was connected, and in which he was interested, it appeared that such transactions were all in the ordi- nary course of the business of the Bank ; that he had not exceeded the power and authority with which he was intrusted ; and that no case of bad faith could be proved against him ; the Judicial Committee, affirming the judg- ments of the Superior Court and Court of Queen's Bench of Lower Canada, held, under such circumstances, that no such action could be sustained,, 'and dismissed the appeal with costs. 1 HIS was an appeal from a judgment of the Court of Queen's Bench for Lower Canada, confirming, in respect of the matters appealed from, the decision of the Superior Court at Quebec. The Appellants were a Banking Corporation, carrying on busi- ness in Canada, having their principal place of business at Toronto, and at the time to which the proceedings in this appeal related, they had a Branch Bank at Quebec, at which James Foster Bradshaw, the Defendant in the action hereinafter mentioned, and since de- ceased, was their Manager and Cashier. The Respondents were the heirs of Bradshaw, and as such had resumed the defence on his decease. The action was commenced by the Appellants on the 12th of February, 1859, by the issue of writs of arret simple and saisie-arret, under which the property of the Defendant, Bradshaw, was seized as security, and retained. The action was brought to recover the sum of 40,000, by way of damages against the Defendant, for * Present: LORD CAIRXS (LORD JUSTICE), LORD JUSTICE TURNER, SIR EDWARD VAUQHAN WILLIAMS, and SIR RICHARD TORI:,- KINDERSLEY. VOL. I. 3 '1 V -Is, i M: PRIVY OOUN< II, [L. J.O. alleged misconduct in liis duty of Cashier, and in partiruhu 1807 recoTer money of tin- Plaintiff*, alK-p-d to have been lent by him. THE' by discounting Bills and otherwise, for his personal advantage, to \f* persons with whom he was interested in business. The declara- %OA tion, which, consisted of three counts, stated to this effect, and BKAHBAW. particularized five instances in \\hidi the Defendant was alleged to have advanced sums of money for his own advantage to parties to whom he was interested, which still remained unpaid to the Bank ; these were specified, and are hereafter set forth. The Defendant pleaded a plea of perpetual peremptory exemp- tion, and also a plea of defence au fond* en fait, the substance of which amounted to a general denial of all the allegations in the declaration ; he also set up affirmative defences to the effect, that he was acting under the immediate superintendence of the Appel- lants, and with their approbation, and further that any claims due from him ha I to ^ tho extent of 552. 9. 9:l)><\ and tho instalments on the K taken by persons in the neighbourhood of Quebec were paid into the Bank. Three out of tin- four instalments due upon the stock were called in, and the sums payal.lc in respect of them to tho Bank amounted to 1,980, only 1,210 wns ho\\ vor, in up, against which the Company, from time to time, drew. The account was overdrawn in March. l*~>-\, lm uas covered ly i ments subsequently paid. In .Inly, 1854, a note in favour of P. Low, which had l>een discounted at the Bunk under the autliM- rity of Bradshaw, became due. and not ln-in^ paid, wa^ jn-i" for non-payment, and after being held over for a l'-\v days. \\as placed to the debit of the Company, whose account tin. overdrawn to the extent of 451, subsequently re'!ucd 1-y i ments which were paid in to 376. 11. 8rf. The instalm. nts remaining due were sufficient, if duly paid, to discharge this and leave a sum of 417. 10s. to the credit of the Company. The Company failed to carry their telegraph to Quebec, accord- ing to tin ir agreement, and the stockholders at Quebec refused to p.iy the rest of the instalments. Of the instalments so remaining unpaid, GU u a > in r. spect of shares held by Bradshaio. VOL. I.] CASES IN THE PKIVY COUNCIL. 483 THE BANK OF UPPER CANADA Several applications for payment were made, both by BradsJiaw J. 0. and the Plaintiff's Cashier at Toronto, to the Chairman and Secre- 18J7 tary of the Company, but the amount remained unpaid. The facts relating to the third claim were as follows : McKay was a House painter, in large business, and was in the habit of getting Bills and Notes discounted at the Plaintiffs' Quebec Branch BUADSHAW. from its commencement. All the Bills which fell due while Bradshaw was Manager were duly paid, but at the time of his resignation three Bills were running, which were not met when due. It was proved that this was owing to the destruction of McKays premises by fire, which caused him a loss of 3,000, and obliged him to compound with his creditors, and that at the time when the Bills were discounted his credit was good. The Plain- tiffs accepted from McKay a composition in payment of these Notes, and upon that composition released him from all his liabilities. Of the above three notes, one made by McKay and indorsed by Plunkett, and two made by Plunlcett and indorsed by McKay, formed the third item of the Plaintiffs' claim, on the ground of the following allegations: In the year 1858, McKay was employed by Bradshaw to paint two houses, one belonging to himself, and one to a Mr. Baby ; Bradshaw paid what was due for his own house, but refused to pay for the work done to Baby's, denying his liability to do so. An action was subsequently brought against him, which he re- sisted, but he was ultimately held liable, on the ground that the order was given by him. It was stated by McKay, in his evidence for the Plaintiffs, that when he was pressing Bradshaw for pay- ment of the sum due for Baby's house, as he was in want of money, Bradshaw told him he would discount a Note for him, and that he thereupon got a Note discounted, which was drawn by a Mr. Power, and which was renewed or taken up when due. The three Notes in question were not shewn to be in any way connected with the above transaction, nor were they, or either of them, produced in evidence, nor was there any sufficient reason given for their not being so produced. The fourth item of the Plaintiffs' claim was the largest and most important, involving the personal character of the late Mr. Brad- |s I CASES IN THE PRIVY COUN< I- K J c. thaw, and was the origin of the whole charge. On this there was 1-7 a direct conflict of evidence, and the right of the ri.iii.iitT* to T|1E recover depended upon the degree of credit to be attached t BAK or fa e evidence of Wilson. His evidence was, in substance, that in OAKAUA 1853 he purchased a steamer, named the Admiral, which had been greatly injun-d l-y fire, and that Bradshaw mentioned t<> him the name of Mr. Baby, who would !> lilody to purchase it; that Bradshaw subsequently offered, if he would give him a half interest in the ship, to afford him facilities for obtaining n to repair it, and that he agreed to this arrangement. That, in 1854, Bradshaw told him that Baby would be likely to requip- another steamer, and that if he would purchase one called th Princess Royal, for the purpose of re-sale, and would give him a half interest in her, he would afford him the necessary facilities to enable him to do so. That part of the purchase-money pa; the Princess Royal consisted of the proceeds of two drafts on IF. Lindsay, being the two drafts which formed the first two items of the present claim. That the Princess Royal was not sold, but was run down by another steamer, and that Bradshaw then told him that if he would give him a release from all liability in respect of the Princess Royal, he would give him a certain amount of facilities on McDonald and Logans paper, and would, if the looses were heavy, relieve him from the two drafts on W. Lindsay above mentioned. That, in accordance with this arrangement, Bradshaw discounted for him McDonald and Logans two > which formed the next two items of the Plaintiffs' claim. The witness gave no evidence with regard to the other items of the Plaintiffs' claim, except as to the overdrawing of his account ; they were, however, shewn to be in respect of Bills and > which had been discounted for him at various times, and which remained overdue and unpaid at the time of Bradshaics resigna- tion ; with respect to his overdrawn account, he alleged that, in 1857, needing some money, to fit up some boats at Three Rivers, he applied to Bradshaw, who agreed to pay certain accounts for him to the extent of 500, and to take a Note for that amount on condition of his giving him a more formal release from all liabilities in respect of the Princess Royal, and that that arrange- ment was carried out, and caused the overdrawing of the account. VOL. I.] CASES IN THE PKIVT COUNCIL. 485 THE BANK OF UPPER CANADA The above allegations were wholly denied on behalf of Brad- J. c shaw, and were not proved to the satisfaction of the Court below. isc? By the law of Lmver Canada, the parties to a cause cannot give evidence in their own behalf, but they are allowed to be examined by the opposite party. Bradsliaw tendered himself for examina- tion by the Plaintiffs, but they declined to examine him, and he BRADSHAW. had, therefore, no opportunity of contradicting the matters on oath. The Judge of the Superior Court (the Hon. Mr. Justice Tasche- reau), considered Wilson as wholly unworthy of credit, and the majority of Judges of the Court of Queen's Bench concurred in that opinion, On the 5th of September, 1864, Mr. Justice Taschereau gave judgment, maintaining the exception of the Defendant, and dis- missing the action with costs. The Appellants appealed against this judgment to the Court of Queen's Bench (consisting of the Chief Justice Duval, and the Justices Aylwin, Meredith, Mondelet, and Badgley), and, on the 20th of March, 1865, judgment was given by that Court, affirming the judgment of the Superior Court,, except as to the claim, in respect of 569. 3s. 7dL advanced by the Defendant, Bradshaw, to the Lake Superior Mining Company, of which he was a share- holder ; and, as to this sum, the Court of Queen's Bench of Lmver Canada reversed the judgment of the Superior Court, and con- demned the Respondents in that amount, with costs. The Court also declared the seizing under the writs of saisie-arrei > and saisie- arret simple, good and valid to the extent of the above amount and costs ; and they directed each party to pay their own costs of that Court. Mr. Justice Aylwin dissented in part from this judgment. The Defendant, Bradshaw, having never denied his liability to pay to the Quebec and Lake Superior Mining Company, and through them to the Plaintiffs, the sum claimed in the action in respect of the transactions with that Company ; and having resisted that portion of the Plaintiffs' claim only on account of the charge of fraud which was connected with it in the Plaintiffs' declaration, but which did not form the ground of the judgment of the Court of Queen's Bench, the Respondents did not appeal from that part of the judgment. >M; CASES IN THE PRIVY COUNCIL. [L. R The present appeal was < I 1-y !!. Aj.p ll.mta to reverse i*,-- ili. judgment of the Court of Queen's Benrh. Tor Tlie appeal was argued at great length by C*A Mr. C. 0. Boll, Q.C., of the Lower Canada Bar, and Mr. Wail-in H V//in to the sum awarded; that the judgment both of the Superior Court and the Court of Queen's Bench was erroneous in law. That there was a clear breach of duty made out against Bradshaw in respect of each and every one of the charges made against him ; and that the inferences drawn by the Courts below were manifestly contrary to the weight of evidence. They cited and relied on The Aberdeen Railway Company v. Blakie (1); Ex parle Lacey (2) ; Ex parte Bennett (3) ; Ex parie James (4) ; Story's Comrns. on Equity, p. 304 311 ; Story on Agency, Ch. vii. p. 240 ; Civil Code of Lower Canada, Tit. " Mandat," Ch. ii. Arts. 1709-1714 ; Domenget, du Mandat de la Commission, et la Question & Affaires, vol. i. pp. 197, 248, 268. The Respondent's Counsel, on the other hand, relying on the effect of the evidence and the judgment of both Courts below, insisted that it was amply proved that the moneys alleged to have been misappropriated by Bradshaw, were clearly advanced by him in the ordinary course of business, and within the scope of his authority as Manager of the Appellants' Bank ; that the Appellants (1) 1 Maoq. Sc. Ap. 461. (3) 10 Yes. 394. (2) 6 Yea. 626-28. (4) 8 Yes. 344. VOL. L] CASES IN THE PRIVY COUNCIL. 487 ratified the acts of which they were complaining, and that they failed to shew that they had sustained any damage. They examined and commented on the authorities cited by the Appellants, which they contended did not establish the position contended for. LORD CAIENS : Their Lordships having heard the able and elaborate argument addressed to them at the Bar in this appeal, and having had the opportunity of examining the careful judgments which have been delivered by the Superior Court and the Court of Queen's Bench of Lower Canada, are prepared to state the reasons upon which they will humbly report their opinion to Her Majesty. On the first question raised on behalf of the Appellants, their Lordships have not heard the Respondents' Counsel. This ques- tion relates to the claim arising out of the moneys of the Bank advanced by Bradshaw to the Quebec and Lake Superior Mining Company. The Court of Queen's Bench of Canada have awarded to the Appellants a specific sum in respect of that claim, namely, a sum equal to the balance due to the Bank from the Mining Company on the banking account of the latter, but the Appellants contend that in addition to the sum awarded to them, a sum in respect of interest from the time when the account of the Lake Superior Mining/ Company was closed up to the time of the action brought, should also be awarded. Now this specific claim for interest was not made distinctly in the Court below, nor is it made at all upon the case of the Appellants before their Lordships. Their Lord- ships, notwithstanding, have considered the argument in support of the claim, and they are of opinion that the claim is founded upon a fallacy. It may well be that in an action founded upon contract in respect of the dealings between the Bank and its customer, the Lake Superior Mining Company, there would have been a claim by virtue of contract upon one side or the other for interest. But the present claim is not founded on contract : it is a claim by the Bank against its own Agent for damages in respect of a loss said to have accrued through his conduct. Their Lord- ships might have entertained some doubt, if the question had been brought before them, whether the Bank was entitled to the sum which actually was awarded, the balance, namely, of the account VOL. I. 3 2 Q J.C. 18G7 THE BANK OF UPPER CANADA v. BBADSHAW. i :;i. nan OUKOTL ! r... at of the Lake Superior Mining Company, and whether the proper measure of damages might not rather have been the turn of 500 advanced by the Manager to the Lake Superior Mining Company, in which he was a shareholder and a Director, minus any repay- ment on account of that sum to the Bank, i ... .. how- is not before their Lordships, and upon the question is before them, their Lordships are not prepared to depart from or to increase the amount of damages awarded by the Court 1 It would in any case require clear proof that the Court below had proceeded upon a principle entirely erroneous, to induce tln-ir Lordships, upon a question of damages, to alter the amount awarded. Their Lordships are not prepared to say that the Court below ought to have gone beyond the sum which they have awarded here in respect to the damages which are claimed. The next point argued was the claim arising upon the account of the Canada Grand Trunk Telegraph Company. The nature of that claim is this: It appears that Bradshaw, the Manager of the Appellants' Bank, was a shareholder to the amount of 100 in an incorporated Company called the Grand Trunk Telegraph Company. He was also one of the Directors of that Company. J t is stated in the evidence that he was not a managing Director, ami took little or no part in the management of the Company. The head office of the Telegraph Company was at Toronto. Several of the shareholders lived in and about Quebec. Calls were payable upon the shares of the Company, and the branch of the Bank of the Appellants at Quebec was made the agent for the purpose of collecting those calls. Schedules of the calls were sent down, and printed receipts, already signed, to be handed to the shareholders as they paid their calls. Payments were made running over a great number of months, in respect of the first, and second, and third calls, and from time to time drafts or cheques were drawn by the Telegraph Company upon the Bank at Quebec in respect of the moneys received by the Bank. While the calls were thus coming in, and while the habit of business was as described, a draft or cheque was drawn by the Telegraph Company for 500, and that draft was paid, and the payment of that draft caused the account to be, for the time being, overdrawn. If the calls had continued to be paid as they had been, in course of payment the VOL. I.] CASES IN THE PRIVY COUNCIL. 489 THE BANK OF UPFEK CANADA v. amount by which the account was overdrawn would have been j. c. liquidated; but owing to some suspension in the works of the i8G7 Telegraph Company, the shareholders declined to continue to pay their calls, and the account remained overdrawn. It is stated that the shareholders, or most of them, are solvent, and that their calls might still be recovered. Now, it is alleged, that by reason BRADSHAW. of the interest of Bradshaw as a shareholder and Director of the Company, it was beyond his power and authority to have allowed the account to become overdrawn by payment of this note for 500. It is said, either that he should have given no accom- modation to the Company, or, at all events, that before doing so he should have told the Bank that he was interested in the Company, a fact which it is alleged the Bank did not know. And it is con- tended that he should be made liable for the deficiency upon this account. Their Lordships are desirous in no way to qualify or to abridge the doctrine of law prevailing in almost all systems of jurisprudence, that any one standing in the position of an Agent cannot be allowed to put his duty in conflict with his interests, and they are certainly not prepared to rest the application of the doctrine on the amount of the interest, adverse to that of his employer, which the Agent may be supposed to have. But it is to be observed that in the present case the dealings between the Bank and their customer were dealings in which the customer was not Bradshaw, but an incorporated Company, Bradshaiv being a shareholder in that Company, distinct in point of law from the Company itself. It is also to be observed that Brad- shaw had been appointed to manage the business of the Bank in the midst of a community consisting of individuals and of incor- porated trading companies similar to the Telegraph Company, in which companies Bradshaw might or might not hold shares. Now their Lordships entertain no doubt, that if any case of bad faith or fraud were shewn to occur in dealings between the Manager and corporations in which he was a shareholder, dealings of that kind could not be supported. But their Lordships think that the just conclusion to be drawn from the facts, and from the course of business in the present case, is, that it was within the power of Bradshaw, as Manager of this Bank, to deal in the ordinary and proper course of banking business, not merely with I ! i CASES IN THE PRIVY COUNCIL. [L. the iii'livMiiak but also with the trading corporations of 1867 place in wlii.-h he was placed as Manager, and to deal in that way ^v^^ I M , with the trading corporations, even although In- himself might ^U** * no ^ 8nare * i ttn y onc f them. An 1 if that be the true view OAADA of the position and authority of Bradshaw, it cannot, tli.-ir I/>rd- ships think, be denied tli.it the advance made to the Telegraph Company upon the account that I have described, was entirely a legitimate act in the course of the ordinary business of Bank. Their Lordships, therefore, preserving entirely intact the general rule as to the conduct and duty of Agents, are not pre- pared to hold that Bradshaw exceeded his power or authority in dealing with the Telegraph Company in the way that has been described. The next and the largest question in the case is with reference to the dealings in the account of Mr. Wilson. The first of those deal- ings in respect of which the judgment of the Court below has been impugned, is as to the drafts which have been called in course of the argument the Lindsay drafts. Those drafts were two in nun , they were drafts drawn by Wilson upon his Agent, Lindsay ; Wilson trading at Quebec, his Agent, Lindsay, at Montreal; and were drafts in respect of real transactions, for Lindsay was receiving, from time to time, moneys of Wilson which it was the object of Wilson to have the benefit of at Quebec ; they were discounted by Bradshaw, as the Manager of the Bank, and discounted for Wilson. At the time of the discount of these drafts the evidence shews that Wilson enjoyed unblemished and undiminished credit in the mercantile community of Quebec, and that he was a person who had been, and who continued to be, in a very extensive business. Now it was stated on behalf of the Appellants, very fairly, in their argument, that so far as vicissitudes of trade were concerned, and so far even as any error of judgment might be imputed to Bradshaw, they did not desire upon those grounds to challenge his acts and conduct. Ikit it was said that these drafts upon Lindsay were drafts which in some way had been used or had been intended to facilitate the purchase of a ship called the Princess Royal ; that in that ship TFiZson and Bradshaw, the Respondent, were jointly interested ; and that, therefore, in discounting these drafts Bradshaw, the Re- spondent, was virtually providing, by means of the funds of his YOL. I.] CASES IN THE PKIVY COUNCIL. 491 employers, facilities for his own speculation in conjunction with J. 0. Wilson. This must depend upon the evidence in the case, and 18G7 their Lordships can find no evidence whatever in any way connect- THE ing these drafts with the Princess Royal, her purchase, or her em- B UPFEB* ployment, except the statement occurring in the evidence of CANADA Wilson himself, where he says, with regard to these two drafts on Lindsay, that they have been drawn to facilitate the payment of the Princess Royal, and of another boat to which he refers. There is not in the facts, which are otherwise proved, as to the payments for the Princess Royal, anything which supports, and there is much which is at variance with, this statement of Wilson ; and their Lordships, with regard to the testimony of Wilson, are obliged to assent to the view taken by both branches of the Court in the Colony, that upon any question in this case depending upon the unsupported testimony of Wilson, that testimony cannot be relied upon. Their Lordships also are obliged to observe that it having been in the power of the Appellants to examine Brad- shaw while he was yet alive, and Bradshaw having been, as was stated to us, called upon a subpoena, but not examined, their Lord- ships would be slow upon any charge against the conduct of Brad- shaw 's depending upon the unsupported testimony of one witness, to hold that charge proved in a case where no opportunity had been given to Bradshaw, the Kespondent, to explain or to deny the charge. Their Lordships, therefore, the evidence failing en- tirely to connect the drafts of Lindsay with any dealings in which Bradsnaw was personally interested, are of opinion that the discount of those drafts was merely an ordinary banking transac- tion in the course of the business of which Bradshaw was Manager, and that no claim can be made against him in respect of that discount. The next point urged on behalf of the Appellants was a claim in respect of a draft for 1,100, the draft which has been termed in argument the Wenham draft, the proceeds of which upon discount were carried to the account of Wilson, and were applied by Wilson in part payment of the price of the Princess Royal, in which, as has been already stated, Wilson and Bradshaw had some joint interest. Now, if it were shewn that Bradshaw was aware of the purpose for which this draft was drawn and discounted, and if, further, any loss VOL. I. 3 2 R GAffl ! IN Tin: ri:i\v [L.R 1887 >^ TH lUsk Uma CAXADA t P. u MMT. had accrued to the Bank in respect of the discount of this draft, their Lordships can see that a claim might have been made against Braddaw in respect of that loss. But their Lordships find that on the one hand no evidence has been given that Bradshaw was aware of tho purpose for \\luVh this draft was to be applied, and on the 1 (ami this alone would be Hifliri.-nt lor th<- >j \\hi.-h their Lordships have formed) th .lit- <\ t- MVfowon account in respect of this draft was almost immediately, or shortly afterwards, paid and satisfied by the ordinary appropriation of the payments in upon the other side of the account of Wilton and the Bank. No loss, therefore, can be said to have accrued to I lank in respect of this sum. The next item referred to by the Appellants is the McDonald and Logan notes and cheque of the 23rd of July, the 1st of August, and the 9th of June, 1855, respectively. Here again, so far as these notes and cheque were discounted and cashed upon the faith of the names upon them, their Lordships are of opinion that the transaction was one of an ordinary and proper character; Wilson being, as has been already stated, in large business and full credit ; McDonald and Logan being also in credit and business at that time. And the observations which have been made vitli reference to the Lindsay drafts apply also to the paper of McDonald and Logan. If it were shewn that there was any connection between the discount of this paper and any transaction in which Bradshaw was personally interested, and loss hod accrued, a claim might have been made against Bradshaw; but no evidence has been adduced which satisfies their Lordships, or raises in their Lordships' minds any suspicion, that the discount of this paper was connected with any such transaction. The argument, in point of fact as to these items at last resolved itself into this, that there must be a presumption that Bradshaw, the Manager of the Bonk, was in some manner in the power of Wilson, from the circum- stance that a notarial letter addressed to him by Wilson, subse- quent to the date of these drafts, insisting that Bradshaw was still under liability to him in respect to joint transactions, must be ted as proof of the statements in that letter. Their Lordships are of opinion that to draw such a presumption from such a letter would be much too violent ; and the more so, because no evidence VOL. I] CASES IN THE PKIVY COUNCIL. 193 has been adduced to shew that, in point of fact, the statements in that letter were not repudiated, or were not objected to, on the part of Bradshaw. The last and remaining item is iii respect of the sum appearing to the debit of Wilson upon the statement of his account with the Bank at the close of the management of Bradsliaw. That account was overdrawn. It had become overdrawn by reason of an advance of 500 by Bradshaw to Wilson. The circumstances under which that advance took place are fully detailed in the evidence of Mr. Ross, the legal adviser at that time of the Bank. Mr. Ross states that certain security was, under his advice, taken at that time from Wilson to the Bank ; that one of the terms of the arrangement with reference to the security was that the Respon- dent should, on the part of the Bank, advance the sum of 500. Mr. Ross states that he was of opinion that that was a wise and judicious arrangement ; that it was made under his sanction ; and that he approved of it at the time the arrangement was made. There is no suggestion that at that time Bradshaw had any personal interest in any dealings with which Wilson was concerned. Their Lordships see no reason to think that this was otherwise than a prudent and legitimate advance made by Bradsliaw for the benefit of Wilson. Upon the whole, their Lordships think that the case of the Appellants has entirely failed, and they will humbly recommend Her Majesty to dismiss the appeal with costs. Solicitors for the Appellants : Roberts & Simpson. Solicitors for the Eespondents : Bischoff, Coxe, & Eompas. J.C. 1867 THE BANK OP UPPEB CANADA v. BRADSHAW. VOL. I. .| : , I OASES 'N Til ' ' . v . M li [I, i: J. 0.* THE OWNERS OF THE 8TEAMSHH Vl!i. AM IM7 |;<;K i;o\VLAM> liKH:<;s AM, 0m OWKKB80FTHE "STAB OF CKM < >V ( THE "VELASQl > Al'IT.AL FROM THE HIGH COI ADMIllAl Shipping Sailing Jtulc* CoUirion lut in th<- same dir-.-ti>n. She continued to approach th<- T.ar'iu.- on h*-r port bow, and in such a dii - to involve danger of a col- lision unless one of the vessels ported; and as no alteration was made in her course wlim the t\\ vessels \v re so near that it dangerous for tin- Uarque to keep on her course, the helm of tip- latter was ported. Very shortly .after this had been done, and vessels would otheru i-. have passed clear of each other, the Stearn- >hi| \Mis noticed to be making towards the Barque, and as the only means of avoiding a collision, or lessening th<- effect thereof, the helm of the Barque was put hard a-port ; but almost iru 1 iately afterwards the Steamer, having shut in her red and opened her green li^rht, ran stem on into the Jlariju--.' And the eontention of the I'laintitVs. the owners of the Barque, was, that the collision was attributable solely to the carelessness, neglige: and want of skill of those on board and in charge of the Steam- ship, n; ially in tlu-ir having omitted. ith<-r trmn want of a good look-out or otherwise, to take within sufficient time the proj>er measures to keep clear of the Barque. Th.- defence on the part of the Steamer raised the following case. "The Barque was first seen at the distance of about tl. juarters of a mile from, and being from two to three points on tip- starboard bow of, the Steamer, and with no light then visible on board the latter. The Steamer starboarded by order of the Pilot. and her head went off to port, and sin- k-|.t out of the way of th- Barqu.- ; Imt the latter improperly deviated from her course, under a port helm, and exhibited a red light to those on board the amer, and caused danger of collision ; whereupon, by order of the Pilot, the Steamer hard a-starboarded and stopped her engines, but the Barque nevertheless ran into, and with her port bow before VOL. LJ CASES IN THE PEIYY COUNCIL. the fore rigging struck the Steamer on her stem and starboard J. C. bow." And the contention of the Defendants was that the col- 1867 lision was caused by the negligent and improper navigation of the Barque. Another and distinct ground of defence was, that if the collision was in any way occasioned by anybody on board the Steamer, it was occasioned solely by the licensed Pilot, whose orders in respect of her navigation were promptly and implicitly obeyed by her Master and crew. In the circumstance stated, it was the duty of the Steamer to keep out of the way of the sailing vessel ; and provided she did so effectually, she was at liberty to do it either by starboarding or by porting her helm. On the other hand, it was the duty of the Barque to keep her course, and she could be excused for deviating from it only by shewing that it was necessary to do so in order to avoid immediate danger. The learned Judge of the High Court of Admiralty, after con- sidering the evidence, with the aid of the Trinity Masters, came to the conclusion that no blame attached to the Barque; that the whole blame attached to the Steamer ; that blame attached to the Pilot ; but that blame also attached to the crew, by reason of the want of a good look-out. At the close of the argument for the Appellants their Lordships intimated their opinion that no ground had been made for dis- turbing this judgment in so far as it found that as between the colliding vessels the Steamer was solely in fault. The conclusions which they drew from the evidence were, that the vessels were meeting port side to port side ; that the Steamer took no steps to avoid the Barque until the vessels were very near each other ; and that in these circumstances the Barque was justified in porting her helm when she did port it ; whilst, on the other hand, the star- boarding of the helm of the Steamer when it took place was a dangerous and improper manoeuvre, and the immediate cause of the collision. Upon the question whether the Court below was justified in holding that blame attached to the crew as well as to the Pilot, their Lordships having heard both sides, reserved their judgment ; and it is that question alone which we have now to determine. It has boon established by a long course of decisions, both in the H-s II. PRIVY C< [L.B. High Court of Admiralty and at this Hoard, that to entitle the >" owners of a ship which is n charge of a licensed Til ! the benefit of the provision in th<- Act \\lii.-h exempts them from '**' liability where the collision has been occasioned by the fan the Pilot, it lies upon them to prove that it was caused sold , his fault. To shew to what extent this general l.unl.-!. lies upon the owners, it is suflici. nt to cite the case of The Schwalbe (1). re the cause of collision was an improper starboarding of the helm ; an act of navigation presumably attributable to an order I ; the owners were held liable because th.-y h. 1 1 failed to prove expressly that the order to starboard was given by the Pilot. Lord Chelmsford, in delivering the judgment of Committee, said, "The owners, therefore, fail -ntin-ly in the evi- dence necessary to transfer the responsibility from themselves ; and without considering whether there was any negligent act or omission on the part of the crew of the Schwalbe, their Lordships think it sufficient to say, that the owners have not succeeded in establishing that the collision is to be attributed solely (if at all) to the fault of the Pilot." Again, the cases have clearly established that if, for any act or omission which contributed to the accident, the Master or crew is to blame, then, although the Pilot is also to blame, the owners are not exempted from liability. One of the strongest cases of this kind is that of The Christiana (2), for there every act of omission (and there were several of them) which contributed to the accident was an act for which the Pilot was to blame; yet, inasmuch as for one of them, viz., the omission to strike and haul down certain yards and masts, the Master was held to be also in fault, the owners were not exonerated from liability. On the other hand, such cases as The George (3) and The Atlas (4) seem to shew, that if it be proved on the part of th- owners that the Pilot was in fault, and there is no sufficient proof that the Master or crew were also in fault in any particular which contributed, or may have contributed, to the accident, the owners will have relieved themselves of the burthen of proof which th- law casts upon them. (1) 14 Moore a P. C. Case*, 241. (3) 4 Notes of Cases, 161. (-') 7 Moore's P. C. CMCS, 160. (4) 5 Ibid. 50. VOL. I.] CASES IN THE PKIVY COUNCIL. 499 If, however, the evidence shews that there were acts of negli- J. C. gence on the part of the Master and crew which may have con- 1867 tributed to the accident, as well as fault on the part of the Pilot, THE the duty of shewing that the former did not contribute in part to " VELASQTJEZ - > the accident seems to be involved in the obligation of the owners to prove that the causa causans of the collision was exclusively the fault of the Pilot. TJie lona (1), one of the most recent cases decided by this Committee, seems to go the full length of this proposition. We have now to apply these principles to the present case. What are the facts deposed to by the Pilot and crew of the Velasquez, who alone can speak to what passed on board that vessel ? The Pilot says that he was on the forepart of the bridge ; that he first saw a sail on his starboard bow when the Barque was about three-quarters of a mile off ; that he saw no light ; that he ordered the helm to be starboarded ; that the Velasquez obeyed her helm ; and that shortly after he had given this order he saw the red light of the Barque open. The look-out man (a Spaniard) says that he first saw the Barque on the starboard bow, and distant about a mile more or less ; that he too saw no light ; and that he reported the sail to the Mate (also a Spaniard). And the Mate, who was on the bridge with the Pilot, says, that when the look-out man sang out in Spanish, " a vessel on starboard," he looked towards the Pilot, who was then looking to starboard with his glasses ; that he (the witness) looking in the same direction, saw the Barque about three-quarters of a mile off; that thereupon the Pilot gave the signal for going to port ; and after that was done he (the witness) saw the red light of the Barque, having previously seen no light. Upon this evidence it is no doubt proved that the helm was starboarded by the order of the Pilot, given on his own observation of the Barque, and not upon any communication to him of its position. On the other hand, it is to be observed that this evidence, if strictly true and correct, would raise some inference of a negligent look-out. For nothing is seen of the Barque until she is within a (1) Law Rep. 1 P. C. 426. ;, QAfigft JN THI. ri;i\ mile of the Steamer, and nothing even tin -a is * li-ht-. 1867 although there is evidence in the cause, believed by the ' below, that her lights were burning well ; and the Pilot admits ^- ' that on that particular night a good light mi-lit hav<- been seen three miles off. The evidence, however, cannot be taken to be wholly true or correct For all these witnesses concur in representing' tin- I'M: as on the starboard bow of the Steamer ; whereas their Lordships have found, upon the other evidence in the cause, that the vessels were approaching each other port side to port side. the nv\v and the 1'ilot have combined consciously to put forward a false case, all that can be said is that the owners have Jailed to shew, by trustworthy evidence, that the fault was exelu- >iv ly the fault of the Pilot. But if it be assumed, as their I. ships would uillinirly assume, that the witnesses honestly mistook the position of the Barque, the natural inference from that is, that if there had been a proper look-out, not only would the Barque have been descried at a greater distance, but her true position would have been known. That it is the duty of the crew, by means of a sufficient look- out, to give to the Pilot the earliest possible information of an approaching vessel, and accurately to describe her position, was the principle enforced in the case of T7w lona ; and in the present case it may reasonably be inferred that if the Pilot had received earlier information of the Barque, or had been told that she was on the port side of his own vessel, he would not have given order to starboard at all, or would have given it at a time when on a starboard helm he could have gone clear of the Barque. Their Lordships are, therefore, unable to say that there is error in the finding of the very learned Judge of the Court of Admiralty, that blame attached to the crew as well as to the Pilot of tin Velasquez ; and they will humbly recommend to Her Majesty that this appeal be dismissed with costs. Proctors for the Appellants : Clarkson, Son, & Cooper. Proctors for the Respondents : Deacon, Son, & Eogers. VOL. L] CASES IN THE PRIVY COUNCIL. THE OWNERS OF THE " AGRA " APPELLANTS ; J. c.* AND 18U7 THE OWNERS OF THE "ELIZABETH JENKINS" RESPONDENTS. JuT^ THE "AGRA" AND "ELIZABETH JENKINS." ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. Shipping Collision Sailing rules, 18 & 19 of 1863 Vessel departing from her course Burthen of proof of necessity Both vessels to Name Eeversal Damages divided Costs. If a ship bound to keep her course, under the 18th sailing rule of 18G3, justifies her departure from that rule under the 19th rule, she takes upon, herself the obligation of shewing not only that her departure was at the time it took place necessary, in order to avoid immediate danger ; but also that the course adopted by her was reasonably calculated to avoid that danger. In reversing the decree of the Admiralty Court on the ground that both vessels were to Llame, the damages were directed to be equally divided ; each party to bear his own costs, both on appeal and in the Court below. IN this case the appeal was brought from a decree of the Court of Admiralty, made in a consolidated cause of damage instituted by the owners of the Barque, Elizabeth Jenkins and crew, and a cross suit by the owners of the ship, the Agra. The suits were tried upon oral evidence before the learned Judge of the Admiralty Court (The Right Hon. Dr. Lushington), assisted by two elder brethren of the Trinity House, and the Court found that the collision was caused solely by the Agra, and condemned her owners in damages and costs. Against this decree the owners of the Agra brought the present appeal. The facts were these : The collision between the Barque, Elizabeth Jenkins, and the ship, the Agra, took place about 8 o'clock, P.M., on the 10th of November, 1866, off the Ower's Light-ship, in the English Channel. The night was cloudy, but not thick. The Elizabeth Jenkins was heading * Present: LORD CAIRXS (LORD JUSTICE), SIB WILLIAM ERLE, SIR JAMES WILLIAM COLVILE, SIR EDWARD VAUQHAX WILLIAM?, and SIR RICHARD Toms KlNDERSLEY. ;,,,_ CASES IN TI1K PRIVY OOUK< [L.B. J. C. south-east, n if i<-r plain noil, close hauled on tho starboard tack, ;-: making six knots an hour. The Agra was steering west, close hauled on the port t.u-K. making about six and a-half knots an _ Ajn> hour. The wind was south-south-west. 1 .1 :. u I 'ii Under the 12th and 18th of the Regulations of 18G3 (1), it was, in these circumstances, the duty of the Ayra, having the wind on the port side, to keep out of the way of the Elizabeth Jenkins ; the Elizabeth Jenkins, on the other hand, ought to have kept her course, unless a departure from her course was warranted under the 19th rule, by the necessity of avoiding immediate danger. As the ships were nearing, and about to cross, the Agra gave way, porting her helm, squaring her after-yards, and letting go spanker. The Elizabeth Jenkins did not keep her course, but star- boarded her helm and hauled in her spanker ; and the result was a collision, the starboard bow of the Agra, near the stem, strikin being struck, by the stem of the Elizabeth Jenkins; the Elizabeth Jenkins foundering, and the Master and several seamen being drowned. It was contended for the owners of the Elizabeth Jenkins that the Agra so long delayed porting her helm and giving way that those on board the Elizabeth Jenkins were led to think she was trying, and intended, to cross the bows of the Elizabeth Jenkins, and that a collision must, if the Elizabeth Jenkins kept her course, take place ; and that the change in the course of the Elizabeth Jenkins was thus necessary in order to avoid immediate danger. For the Agra, on the other hand, it was alleged, that she ported and gave way as soon as she saw the red light (the only light that she admitted she did see) of the Elizabeth Jenkins. That she observed the loom of the Elizabeth Jenkins when about a mile or three-quarters of a mile distant That at that time the Elizabeth Jenkins had no lights visible ; for the Master and Pilot of the Agra, seeing the loom of the Elizabeth Jenkins before them, endeavoured to make out her lights, first with the naked eye, and then with glasses, and could not do so ; and, therefore, concluded she was on the same tack, with her stern towards the Agra. That they con- tinued watching, and after some little time saw the red light of the Jenkins, and immediately ported their helm ; and that it (1) See Regulations, Lush. App. bom. VOL. I.] CASES IN THE PRIVY COUNCIL. :>03 was thus the want of proper lights on board the Elizabeth Jenkins J. C. which made the Agra delay porting so long, and that the Agra was 1867 '^v^' free of all blame. It was further alleged for the Agra, that when THE * : AGRA " the Elizabeth Jenkins did depart from her course, she ought to have EL ^ ^ BCTH put down her helm and luffed up to the wind, in order to deaden JENKINS." her way, in place of starboarding, thereby accelerating her speed, and increasing the violence of a collision. The Solicitor-General (Sir J. Karslake, Q.C.), and Mr. Aspinatt, Q.C., and Mr. Butt, for the Appellants : It sufficiently appears from the evidence that when the Elizabeth Jenkins was first sighted by the Agra she exhibited no light ; it was concluded, therefore, by those on board the Agra, that she was on the same tack as the Agra, and so the Agra continued her course for a short time, but a red light becoming suddenly visible from on board the Elizabeth Jenkins, the helm of the Agra was put hard a-port, and her after-yards squared, and her spanker let go, by which means she would have gone clear of the A r essel port side to port side, had not the Elizabeth Jenkins improperly put her helm hard a-starboard, and thereby threw herself right under the bows of the Agra, the stem of which struck her on the starboard bow. Now, the fact that the Elizabeth Jenkins, the starboard tacked ship, bore away before the ships came, together, proves that had she kept her course, as by the Admiralty sailing rules, No. 12 and 18 of 1863, she was bound to have done, no collision could have happened, and she can only recover, by the true construction of No. 19 of those rules, by justifying, which she has failed to do, a departure from those rules. The collision could have been avoided if, instead of starboarding her helm, she had ported : The Lady Ann (1). To sanction such a manosuvre as that adopted by the Elizabeth Jenkins would be to counteract the efforts made by the Legislature to enforce the rule of the road. Mr. Brett, Q.C., and Mr. Clarkson, for the ^Respondents : As held by the Court below, we insist that the Agra was solely to blame. The Elizabeth Jenkins exhibited her lights; keeping her course as required by the 12th rule, and only altered her (1) 7 Xotcs of Cases, 3G9. ;HI i CASES r i'l:l\ V < [L.R course, und< r in instances which were justified 1>\ nil is : avoid a coll i- Tn - A..UA " "KwAiKTH 'I'h'-ir Lords!. ment having been reserved was t.luly -J<>) by n> W. CUI.MI .!: : After stating the facts, his Lordship proceeded : Th'-ir Lordships do not see any reason to disbeli precise and consistent evidence of the Master of the Agra, an Albert, the Pilot, corroborated as it is by that of Jones, tin- 31 and rendered probabl. by th statement of Tracey, tin.- Pilot, as to tli-- iliiniiess of tin- lights of the Elizabeth Jenkins, on tin- Ihul of N.VL-ml.MT pivvious; and they are disposed to think that when the loom of the Elizabeth Jenkins was first seen by the Master of the Agra, and examined through the night glasses, h r lights could not, for some reason or other, be made out. 1 think, IK>\M-VLT, that, between thut time and the moment >\lim the red light of the Elizabeth Jenkins \\us actually seen, an interval longer than these witnesses represent must have elapsed, and that luring this interval a more careful and continuous look-out on board the Agra would have enabled them to discover the red li^ht sooner, and would have shewn, even irrespective of the light, that the Elizabeth Jenkins was nearing them, and the course she was pursuing. Their Lordships, therefore, cannot acquit the Agra of blame. They think she might and ought to have ported sooner. Was, then, the Elizabeth Jenkins free from blame, or is blame to be attributed to her as well as to the Agra? That she !- parted from the 18th rule is clear, for she did not keep her con and that this departure had not the effect of avoiding danger is also clear, for a collision of a most disastrous character occurred. Now, their Lordships are clearly of opinion that if a ship, bound to keep her course under the 18th rule, justifies her depart from that rule under the words of the 19th rule, she takes upon herself the obligation of shewing both that her departure was at the time it took place necessary, in order to avoid immediate danger, and also that the course adopted by her was reasonably alculated to avoid that danger. Their Lordships find that this VOL. I.] CASES IN THE PRIVY COUNCIL. .505 has been the construction put upon the 19th rule in the cases of J. c. The George Dean v. Tlie Constitution (1); Holt, Eule of Boad, 1S67 p. 101; The Planet v. The Aura (2) ; and, inferentially, in the THE <; AGRA" case of The Great Eastern (3), before this Board. This obligation ,. E[ ^5 ETH the owners of the Elizabeth Jenkins have not, as their Lordships JENKINS." think, discharged. It is remarkable that no one of the witnesses for the Elizabeth Jenkins ventures to say that had she continued her course, the Agra porting when she did, the collision would not have been avoided. Robins, the Mate of the Elizabeth Jenkins, in his examination in chief, states that he thinks the collision would have taken place had his ship continued her course ; but he evi- dently speaks on the hypothesis of the Agra having continued her course also ; and it is clear that when the order to starboard was given by the Master of the Elizabeth Jenkins to Robins, the latter thought it an erroneous order, and remonstrated against it. Look- ing to all the evidence in the case, their Lordships think and it is also the opinion of the Nautical gentlemen by whom they are assisted that the Agra would have passed free of the Elizabeth Jenkins had the latter maintained her course ; and that even if the Elizabeth Jenkins had, from apprehension of danger, altered or interrupted her course, she should have done so by luffing up to the wind, thereby stopping her way, and mitigating, as far as possible, the effect of a collision, if a collision should take place. Their Lordships, therefore, have come to the conclusion that both vessels were to blame, and that the collision is attributable to both the Agra for not sooner observing and getting out of the way of the Elizabeth Jenkins ; and the Elizabeth Jenkins for de- parting from her course without sufficient necessity, and for departing from it in a manner calculated to increase, and not to diminish or avoid, danger. Their Lordships have referred to the testimony of Robins, the Mate of the Elizabeth Jenkins, and to the opinion which he ap- pears to have expressed at the time to the Master as to the course the latter was taking. They see no reason for looking at tin's evidence as otherwise than trustworthy ; and they cannot but con- (1) Admiralty Court, 1 Feb. 1865. (2) Admiralty Court, 7 Dec. 1865. (3) 3 Moore's P. C. Cases, (X.S.) 31. :,o.; OASES IN in i. ran trustworthy, as Inning an important l;uin- .i, 1M7 facts of the case. They agree with th Tfc* ""AGBA" rit'nced Judge from whose decision this appeal is brought, and who has SO long, and with such adumtap- to the pul.lic, pn -id- d o\.-i tli- Admiralty Court, as to the jealousy with which any att> t \\arji tin- e\i lence of a witness by communications between him and either of the liti^atint: jiarti.-s should bed and bated; but they cannot think that tin- evidence ,-hould, men l\ oj, the ground of such communication-, he entirely thrown alie use. endeavoured to get it adopted, and pointed out that a Telegraphic cable constructed on principle invented by him might be laid down between Great Britain and America: that in tin- year L856 irroat efforts were made by him to form a Company which would bring his inv -ntion into renrral use, by laying down a Telegraphic cable between Ireland and A,,r //(. lut tliat he did not receive the assistance he required, and that consequently no Company was formed ; that in the year 1858, in consequence of the efforts of the Petitioner, a Company was formed called the " Great Indian Submarine Tde- graph Oomptmy"- for the purpose of establishing telegraphic com- munication with the East Indies; that sufficient capital not 1> subscribed, such Company failed; that tin- !' titioner continued to make every effort to :_ r -t his invention known and adopted, and, in the year 1865, a Company was formed for the purpose of establishing telegraphic communication between England and mm, by means of his invention ; that for the purposes of such Company a large amount of capital was subscribed; Imt, in consequence of the disturbed state of financial afiairs, the full amount of capital requisite could not be raised, and the und.-rtnkinir was abandoned; that another Company had lately been formed, with a capital of 600,000, for the purpose of laying down, between England and Her Majesty's North American posses- sions, a Telegraphi-- oable, constructed according to the Petitioner's VOL. I.] CASES IN THE PRIVY COUNCIL. 509 invention; that the construction of a Telegraphic cable for that ' J. 0. purpose would occupy a considerable time, and that probably the 1867 cable so to be constructed would not be laid down until after the / re determination of the term granted by the Letters Patent; and A"^' 8 the Petitioner further alleged, that he had made every effort in his power to bring his invention into general use, but had hitherto failed, in consequence of the very large amount of capital required for the construction and laying down of Telegraphic cables, and also in consequence of the opposition which his inven- tion had received from persons interested in the manufacture of Telegraphic cables; that the Petitioner had hitherto gained no profit whatever from his invention, but had sustained losses ; but that he had a reasonable expectation that the difficulties that had been encountered in bringing this invention into public use had been removed, and if the term was renewed he would reap some reward for his outlay and exertion, and that the public would be benefited by the use of his invention, and he prayed for an exten- sion of the term for seven years. No caveats were entered against the application. Mr. Grove, Q.C., and Mr. C. Grove, for the Petitioner, and Mr. Hannen, appeared for the Crown. Evidence was given of the ingenious character of the Patent, and of the unsuccessful efforts made by the Patentee to induce Telegraph Companies to adopt the invention, and also of his in- effectual endeavours to form Companies to carry the invention into practice. There had been no user of the Patent, or profits derived from it. LORD KOMILLY : Has there been any case in which the term of a Patent has been prolonged by the Judicial Committee, where the Patent has not been brought into use during the term of fourteen years ? Mr. Grove : In Berrington's Patent (1) for improved Knapsacks, there was (1) P. C. 5 July, 1852. See case referred to, Corytvn's Law of Patents, 225. VOL. I. 3 2 T 510 CASES IN THE PRIVY COUNCIL. [L. B. j.O. ' no user daring the term, yr-t ft prolongation was grant- 1. Ji case of Wooforoff* Paitnt (1), Lord Brougham observed that, it is not enough to object that the Patent has been long in coming j nto operation, for the steam engine itself and many other dis- coveries are open to the samo observation. It is tnir, \\itlt respect to user, it has been hold at Common Law, that an In- ventor, after successful experiments in the presence of others, must not delay in applying for Letters Patent, or he will have given his Patent to the world: Newatt v. Ell [LoBD ROMILLT: In Bakeicefft Patent (3) this Court refused to pro- long the term of a very ingenious Patent on the sole ground of non-user.] The present case differs from that case. There the Patentee took no steps to bring the invention into use. Here it required a large capital to work the Patent, and every effort was made by the Patentee to get Companies to work the invention, though without success. LOBD ROMELLY : Their Lordships are of opinion, that a sufficient case has not been made out for an extension of this Patent. Early in the opening of the case their Lordships were doubtful whether, unless under the very peculiar circumstances of the case, the Judicial Committee of the Privy Council had ever recommended the exten- sion of a Patent of which there had been no user for a period of fourteen years, namely, during the whole of the duration of the Patent Mr. Grave, upon application being made to him to ascer- tain whether such a case could be found, referred to Berrington's Patent, which we now have before us, which was a Patent for Knapsacks. The judgment there given by Dr. Lwhington was in these words : " Their Lordships feel some surprise, considering the very high testimonials which have been produced to the useful- ness of this invention, to find that after the lapse of so great a period of time it does not seem to have been adopted in the service of any one of Her Majesty's regiments. It would, perhaps, almost lead their Lordships to doubt whether, or not, the invention was so (1) 2 Webs. Pat. Cases, 32. (2) 4 Jur. (N. S.) 562 ; 27 L. J. (C. P.) 337. (3) 15 Moore's P. C. Cases, 385. VOL. I.] CASES IN THE PEIVY COUNCIL. 51 meritorious as has been described by the witnesses ; but as there is J. C. no evidence to shew that this article has ever been tried and failed 1867 in attaining the objects which it is calculated to attain, their Lord- j^Te ships are of opinion, that they ought to give the Patentee the ALLAN'S benefit of any doubt of that kind. Their Lordships are, therefore, disposed to advise Her Majesty that this Patent should be ex- tended for a period of five years, under the hope that its utility will be displayed, and that, if that utility is clearly ascertained, then there will be no delay in introducing it into the Army, which it is said to be so well calculated to benefit." Their Lordships observe upon that case, that the introduction of the improved Knapsacks being in the year 1852, when there was no Volunteer corps in existence, they could only have been em- ployed by Her Majesty's Government, and, therefore, their Lord- ships seem to have thought that an extension of this Patent (which could affect nobody, and could only be beneficial in case Her Majesty's Government thought fit to use it, and if they did not, would be a dead letter) was in the proper exercise of their discre- tion. The same question came fully before their Lordships in the year 1862, in Bakewells Patent, in which Lord Chelmsford, in delivering their Lordship's judgment, said (1) : " In the course of the opening of the learned Counsel for the Petitioner, an inquiry was made by their Lordships whether he could refer to any case in which there had been a recommendation of an extension of the term of a Patent for an invention which, during the whole course of fourteen years, had not been in use, and it appears that no such case can be found. On the other hand, if it were necessary, it might be shewn that their Lordships have on more than one occasion intimated that the fact of a Patent not having been used would be one ground, at least, for refusing to recommend an extension of the term. Now, non-user of a Patent can hardly be said to be a ground why an extension of the term should be absolutely refused, but it must always amount to a very strong presumption as to the inven- tion not being useful. Of course that presumption may be re- butted, as all other presumptions may be, by evidence of the utility of the Patent, and if upon this occasion the Patentee has (1) 15 Moore's P. C. Cases, 386. 1 -2 GASES IN THE PBIYY COUNCIL. [L. It '. been able to give satisfactory reasons why his Put* nt, \\hi.-h was ]-: perfectly well known, bad not been introducl int > Mt, ^ coarse, would have answered the presumption, which is p> ALLAX*I fatit against him, on account of the non-user of the Patent Lordship goes on to state, that although the presumption n.L'l.t be rebutted, it must be by the very strongest, the most and clear evidence, and in that case, although their Lordships thought it a very remarkable and ingenious invention, they 1 *'-7 LetUn Paknt taken out in England br/orc Patent granted in a Foreign Country for '* "" Invention Co*ttmctwn< Act, 15 A 16 IV I'omr to front Prolongation nlships think that this is not tin- tru- construction of tlii- rbnisr. Th; clause is this: [ His Lordship lead the section, ante, \ nd proceeded.] Now, tln-ir 1 ships think, upon the due construction of that clause, that it :i]>j>li> s to the case where a Patent has been obtained in a For country before the Pati-nt \\a< ol>tnim-l in this country, coml>; with this further circiinistau.v, that th- invcnti-.n in respect of which the Patent here was granted was first invented . ith> T in a ft Foreign country or by the subject of a Foreign State. Tli-ir Lordships are of opinion, tli iiat thi< clause of the Sta; must apply to a case where a Patent has been previously obtained in X r n country. And it is obvious, from various considerations, that that must be the meaning of the clause, for, if n -t , an Kn_rlish- born subject who took out a Patent in this country for an ii invented here could not venture to take out a Patent in a For- ("iintry if th- Pat.-nt in the Foreign country was of shorter dura- tion than in this country, as, for instance, in Belgium, where the m appears to be ten years, as it would absolutely preclude his ever applying for a continuation of t nt here, inasmuch as the Patent for the same invention would previously have expin I in the Foreign country. Therefore, their Lordships think that tin.- section is not meant to apply to such cases, nor to prevent pers it they are natural-born English subjects, who have taken out a Patent here, from obtaining a continuation of th- though they have subsequently taken out a Patent in another country for the saint- invi-nti-iu. Th. ir lordships' view of this case is coafirmed by the case of Betf Patent (1). Thero it appears, that the Letters Patent for (1) 1 Moore's P. C. Cases (N. S.) 49. YOL. I.] CASES IN THE PRIVY COUNCIL. 519 an invention made in England were granted, in 1849, to Mr. J. 0. Beits, who was a British subjects In the following year a Patent 1867 was granted in France for the same invention for fifteen years, /JiTe and in the same year another Patent was granted in Belgium Pool's for ten years. The Belgian Patent of course expired before the English Patent, and before any application was made for a prolongation of the Patent. In that case the Judicial Com- mittee held that the section which I have read did not apply so as to deprive their Lordships of the power of entertaining an application for a prolongation of the Patent ; and their Lordships in that case decided that this section applied only to cases where the original Patent had been granted in a Foreign country, and not to those where the Patent had been first granted in the United Kingdom ; and in this decision no reference is made to the question by whom the Patent was taken out, whether by a foreigner or natural-born English subject. Their Lordships think that decision applies to this case. The Patent here was taken out in November, 1853, and the Patent in the United States was taken out in Novem- ber, 1854. The consequence of this is, that their Lordships, taking into consideration the whole of the matter, the remuneration re- ceived, the value of the invention, and the arrangement which has been entered into between the gentleman who applies here and the family of the inventor, who is deceased, think it fit that an extension should be granted for five years ; and their Lordships will, therefore, humbly report to Her Majesty as their opinion, that this Patent should be so extended. Solicitor for the Petitioner : Bristow Hunt. Solicitors to the Treasury, for the Crown. VOL. i. ax CASES IN THE PRIVY COUNCIL. [I* B. TJli: AJTORNET-OENEBAI Of ni u I.Al'Y leer Till: <>ri:i:.\ roETHzOOLONI - f.>nn< r trial, and that if the witness wished to r ' add anything to the evidence he had then given, or to alter or correct it in any way, he could do so. The Chief Justice uls.. th.-n informed the Counsel for the Prisoner an-1 the Counsel Crown, that if either of them wished to ask the witness any questions he could do so. No specific or definite consent was given by the Prisoner or his Counsel as to the proposed course being adopted, or as to any specific witness being thus examined ; but no objection was then made by the Prisoner or his Counsel, and they were considered by the Court to have assented to the course * proposed. On the first trial, at the close of the defence, the Counsel prose- cuting for the Crown claimed to reply, but upon objection being taken, the claim, at the suggestion of the Chief Justice, was with- drawn. But at the second trial, at the close of the defence. Counsel prosecuting for the Crown (and acting for the Attor: General), claimed and was allowed by the Chief Justice to reply, the Prisoner's Counsel having, as was alleged, been induced by the withdrawal on the former occasion of the claim to reply, to sup- pose that if he did not call witnesses no reply would be allowed, abstained from calling witnesses. On the 12th of March, 1866, the Supreme Court of New South JJrt/t-s sitting in Banco, upon the motion of the Counsel for the Prisoner, granted a rule nisi calling upon the Attorney-General to shew cause why the verdict of guilty should not be set aside, and why a new trial of the issue should not be had, or why the judgment should not be arrested on the ground (inter alia) that the evidence of some of the witnesses, called on behalf of the Crown upon the trial, had been read to the jury from the notes taken by the Chief Justice at the former trial, and that a reply had been permitted, contrary to the practice of the Court, by which the Prisoner had been prejudiced in his defence. The rule nisi came on for argument before the Court in Banco, on the 17th of March, 1800, when, upon hearing Counsel on the part of the Attorney-General, and also upon the part of the Respondent, the Judges of the Court sitting in Banco gave VOL. I] CASES IN THE PRIVY COUNCIL. judgment. Mr. Justice Hargrave and Mr. Justice Cheeke gave judgment to the effect, that at the second trial there had been a substantial miscarriage of justice, and that there ought to be a new trial. They were of opinion, that the jurisdiction of the Supreme Court of New South Wales being declared by the 9 Geo. 4, c. 83, s. 3, to be co-extensive in all civil and criminal matters with the jurisdiction of the Court of Queen's Bench at Westminster, and that Court having, in the recent case of TJie Queen v. Scaife (1), upon grounds analogous to the present case, granted a new trial, it was competent for the Supreme Court to do the like : as the mode adopted by the Chief Justice in submitting the evi- dence to the jury on the second trial was irregular, and amounted to such a miscarriage of justice as entitled the prisoner to a new trial. The Chief Justice was of opinion that, admitting the authority of the decision in The Queen v. Scaife, and the analogy of the Supreme Court to the Court of Queen's Bench at Westminster, yet that there had been no such miscarriage of justice as would entitle the Prisoner to a new trial, inasmuch as the evidence alleged to have been irregular had been so taken at the instance of the Prisoner personally, and upon the application of his Counsel, and as there was no ground whatever for supposing that the Prisoner had been injuriously affected thereby, therefore, that the rule asked for ought to be refused. Mr. Justice Faucett gave judgment in accordance with the opinion of the Chief Justice ; but subsequently withdrew his judgment in order that there might be an appeal to Her Majesty in Council, and the verdict so found by the jury, upon the trial of the Prisoner upon the 22nd of February, 1866, was thereupon set aside and a new trial granted. A petition for special leave to appeal against this judgment was presented by the Attorney-General of the Colony to Her Majesty in Council. The petition was heard ex parte. The Attorney-General (Sir E. Palmer, Q.C.) and Sir Hugh Cairns, Q.C., for the Petitioner : By the imperial Statute, 9 Geo. 4, c. 83, ss. 3, 4, the constitu- * Present: LORD WEXSLEYDALE, SIB JOHN TAYLOR COLERIDGE, and SIB EDWARD VAUGHAN WILLIAMS. (1) 17 Q. B. Rep. 238. J.O. 1867 REG. . BERTRAM). ISM v v*/ Jums 27." til I ES IN THE PRIVY COUNCIL. [L. B. i <>f ill.- Supreme Court in New South Wale* 'IB defined and i -: declared to be a Court of Record, and to possess the same jurisdiction t^~ and powers as the Courts of King's Bench, Common Pleas, and I Bjn(J Jj A5i) IJ.-.JU.T. in England. The English law of procedure, therefore, is the rule to govern the case. By that law no new trial lies in a case of 1'Vloiiy. It is tru- that in The Queen v. Scaife (1), a new trial. \vh.-p- th.-re had been a conviction for F>-l<>ny. was granted by the Court of Queen's Bench, but we submit that that case, when ez- amim t tin jn.\\. rot' granting an appeal in a criminal suit. This is a case of the Court below assuin authority to grant a new trial, a power it was not competent exercise, any more than the Courts at Westminster Hall. The only case to be found for such a proceeding is The Queen v. Scaife (IX which, however, when examined, is no authority ; the question of the power of the Court of Queen's I'M nch was, in fact, never argued. Granting new trials is a practice of comparati modern date. The history of its introduction is to be found in The King v. Mawbey (2), which was a case of misdemeanor only. In a note to the case of The King v. The InJidbitants of the County of Oxford (3), it is stated, that there is no instance of a new trial being granted in a capital case. All the authorities upon tin- j>oint are collected there. With regard to the merits, even if the Supreme Court possessed the power of granting a new trial in a criminal proceeding, \\hicii we deny, the power was wrongly exercised in this case, as the read- ing of the evidence of the witnesses taken at the former trial was regular and with the consent of the Prisoner. The same course was adopted by Mr. Justice Patteson in Rex v. Foster (4). K if there was an irregularity it was trivial, and in no way calculated to injure the Prisoner, and there was no miscarriage of justice oc- casioned by such a course. The cases of The King v. Edioards i The King v. Streek (6) ; Stokes s Case (7) Foster's Case (4), relied on by the Chief Justice of the Court below, are all cases before a single Judge, and have no binding authority as decisions on thN Tribunal. Neither the withdrawal of hi* judgment ly Mr. Justice Faucett, or the allowance of the reply to the Crown, formed any valid ground of objection; they are both consistent \\ith th- (1) 17 Q. B. 1U P . 888; 8. a a (4) 7 C. & P. 496. Den. C. C. 281, (5) 3 Camp. 207. (2) fi Term 1U T . G19. (G) 2 C. & P. (3) 13 East, 410, 415. (7) G C. & P. 151. VOL. L] CASES IN THE PEIVY COUNCIL. 527 practice of our Courts in criminal prosecutions, and upon difference j. c. of opinion among the Judges. The conviction of the Respondent ig67 was, therefore, right and legal, and such conviction ought to stand. ^ V. Mr. If. 8. Giffard, Q.C., Mr. F. H. Lewis, and Mr. E. Clarice, for 3E R the Respondent : By the Statutes and Charter of Justice of the Supreme Court at New South Wales, that Court is invested with all the jurisdiction and power that belong to the Court of Queen's Bench at West- minster. It has, therefore, a general power to order a new trial in favour of a Prisoner who has been convicted, where the trial has taken place before the Court itself. The Queen v. Scaife (1) is a direct authority on this point, that it is competent for the Court of Queen's Bench to grant a new trial in a case of Felony. The contention of the Appellant that the question of jurisdiction was overlooked cannot be sustained. Although the Prisoner in that case on the new trial received a heavier sentence, yet no attempt was made to quash the second conviction. Granting a new trial, in recent times, has been extended from civil cases to indictments for misdemeanors and Felony. The Queen v. Scaife was in accord- ance with the previous cases of The Queen v. Mawbey (2), and The Queen v. Gompertz (3) ; Bright v. Eynon (4) ; The King v. Davis (5) ; The King v. Eeynell (6). We do not contend that a right of appeal exists in a case where the Supreme Court, sitting as a Criminal Court, has exercised, under the jurisdiction given by ^Statute, the powers of the Court of Queen's Bench at West- minster ; that Court having no such jurisdiction. But the ordering a new trial is quite another thing, and is consistent with the course of practice of the Court of Queen's Bench. It is a discretionary act with which this Tribunal will not interfere, though we do not question the right of the Queen, by Her prerogative, to grant an appeal in criminal as well as civil suits, except where such right has been relinquished, or is re- stricted by Act of Parliament : The Queen v. Eduljee Byramjee (7) ; (1) 17 Q. B. Eep. 238. (4) 1 Bur. 393. (2) 6 Term Rep. 619. (5) 12 Mod. 9. (3) 9 Q. B. Eep. 831. (6) G East, 315. (7) 5 Moore's P. C. Cases, 276. CASES IN THE PRIVY COUNCIL. [L. R Jfya Haw? v. The Queen (1) ; Tta Queen v. 4#oo Paroo (2) ; Aya 1W7 /footo Mahomed v. Tta Qtusen (3); P0oni*tofy Moodeliar K, ~ T. Tta A'in<7 (4) : jet in Tte Ames (5), from Jersey, and The Queen v. Joykisaen Mookerjee (6), from the Sudder Niiamut Adatdut at jPen^o/,such right was shewn not to exist. From all these autho- rities it is clear that this is a case in which such rigl. .ists ought not to be exercised. The ordering a new trial by the Supreme Co urt was an exercise of its discretionary power, with wl neither this nor any other Court of appeal will interfere. It was, as we maintain, rightly exercised, for the proceedings in taking the evidence on the second trial were wholly irregular and contrary to law. The depositions of the witnesses taken at the former trial were in admissible as evidence : Taylor on Evidence, 442 [3rd Ed.]. By the old hn\ it w;ts only in the case of death or absence that they were admissible: 1 Hale, P. C. 305; so now by Act 11 & 12 Viet. c. 42, sec. 17. The allowance also of a reply on the part of the Crown was a surprise on the Counsel for the Prisoner, and produced a miscarriage of justice. The irregularity at the trial was prejudicial to the Respondent, and his presumed consent cannot cure it. As no Writ of Error wonM lie, nothing was open to him but to apply for a new trial. Again, the Judges : ng evenly divided in opinion the decision was in favour of the -pendent, and ho ought to have had the benefit of it, instead of being prejudiced by the course adopted by Mr. Justice Faucett of withdrawing his judgment. 1SC7 The consideration of the judgment having been reserved, was now P r B oim ced by SIB JOHN T. COLERIDGE: This is an appeal by the Attorney- General of New South Walts on behalf of Her Majesty, against an Order of the Supreme Court of that Colony, making absolute a rule nisi for a new trial, which had been obtained on behalf of the Respondent, against whom a verdict of guilty had passed on an information charging him with wilful murder. By the law of the Colony an information (1) 7 Moore's Ind. AH>. Cast (4) 3 Knapp's Rep. 348. (2) 5 Moore's P. C. Cases, 296. (5) 3 Moore's P. C. Cases, 409. (3) 4 Moore's T. C. Cases, 230. (6) 1 Moore's P.C. Cases (X.S.) 272. VOL. I] CASES IN THE PRIVY COUNCIL. 529 by the Attorney-General stands in the place of an indictment J. c. found by a Grand jury. The Appellant had been tried at the 1867 same sittings, and the jury not agreeing, had been discharged; EEG upon the second trial a new jury, taken from the same panel, B v - had found him guilty sentence of death had been pronounced, and the rule above mentioned had been subsequently obtained. The record, after mentioning that fact, stated, "That it had been made to appear to the said Court, that at the trial of the said Henry Louis Bertrand, certain of the witnesses for our Lady the Queen, after being duly sworn at the said last-mentioned trial, were allowed by the said Chief Justice, at the request of the said Henry Louis Bertrand, and of his Counsel, to be examined by reference to notes of the evidence given, or supposed to have been given, by those witnesses at the aforesaid first trial ; and that such notes, the same having been taken at that trial by the said Chief Justice, were then at such request, and by consent of the Counsel prosecuting for Her Majesty, read in open Court to such witnesses respectively, each of them thereupon being asked, and declaring on his oath, whether the matter so read to him was true ; and that thereupon as well the Counsel for the said Henry Louis Bertrand as the Counsel for Her Majesty, then and there examined, or were permitted to examine, each such witnesses orally in the ordinary manner." The record then concluded thus: "And because it appears to the said Court now here sitting in Bane as aforesaid, that the said last-mentioned trial, and the proceedings thereat in respect of the matters so suggested and appearing, were and are irregular, and contrary to law ; therefore on motion this day made to the Court on behalf of the said Henry Louis Bertrand, it is ordered by the said Court that, for the cause aforesaid, the verdict so given against him as aforesaid be set aside, and the judgment thereon vacated, and that the sheriff do cause a jury anew to come for the trial of the issue so joined upon the information aforesaid between Her Majesty's Attorney-General and the said Henry Louis Bertrand; and the prisoner is remanded to the custody of such sheriff in order to take his trial accordingly on that information." Upon this statement it was contended, first, on behalf of the Respondent that their Lordships ought not to entertain the appeal; but they do not accede to this. Upon principle, and CASES ix TIN: rnivY COUNCIL. [L.K. co to tlie decisions of this Committee, it seems un is, ,7 that in all cases, criminal us well us civil, arising in places from ^j~ \\hich on appeal would lie. uml \\h-re, either ly tip- t- nns of a Charter or Statute, the authority has not been parted with, it is the inherent pCOXOgftbve Fight, and, on all ]iri r occasions, the duty, of tin- Queen in Council to exercise an appellate jurisdirt \\ith a view not only to ensure, so fur as may be. the due udmini- tion of justice in the individual case, but also to presenre the due course of procedure generally. The interest of the Crown, duly considered, is at least as great in these respects in criminal as in eivil cases; but the exercise of this prerogative is to be regulated by a consideration of circumstances and consequences; and int r- ference by Her Majesty in Council in erirainal cases is likely in so many instances to lead to mischief and inconvenience, that in t! the Crown will be very slow to entertain an appeal by its Officers on behalf of itself or by individuals. The instances of such appeals being entertained are therefore very rare. The opinions stated by this Committee in the case of Ames and others (1) ; The Queen v.Joykissen Mookerjee (2) ; and The Falkland Islands Company \. The Queen (3), establish those positions. The result is, that any application to be all<>\v.-d to appeal in a criminal case comes to this Committee labouring under a great preliminary difficulty a difficulty not always overcome by the mere suggestion of hardship in the circumstances of the case ; yet the difficulty is not invincible. It is not necessary, and perhaps it would not be wise, to attempt to point out all the grounds which may be available for the purpose ; but it may safely be said, that when the suggestions, if true, raise questions of great and general importance, and likely to occur often, and also where, if true, they show the due and orderly administration of the law int- r- rupted, or diverted into a new course, which might create a prece- lent for the future; and also where there is no other means of preventing these consequences, then it will be proper for this Com- mittee to entertain an appeal, if referred to it for its decision. The present case appears to fall within this category, on the allegations of both parties ; on the one hand, it is clear that the (1) 3 Moore's P. C. Cases, 400. ('_') 1 Moore's P. C. Cases (N.S.) 272. (3) 1 Moore's P. C. Cases (N.S.) 209. VOL. L] CASES IN THE PKIVY COUNCIL. Court below has directed a new trial in a case of Felony ; it is J. C. alleged that no such trial can be had according to the uniform isc? practice in our Criminal Law ; if this allegation be correct, it is j^ obvious that an innovation has been made without authority, one c . r ' . of great importance, and establishing a precedent which may be expected to be frequently acted on. On the other hand, it is alleged that a serious departure has been made from the ordinary course of conducting a criminal trial before a jury ; and if this be true, it is obviously of the last importance to prevent this for the future ; and it has not been seriously contended on either side that any mode of redressing these alleged miscarriages exists but that which has been resorted to. Their Lordships therefore will not decline to entertain the present appeal; and they proceed accordingly to consider the first ground on which it is rested the grant of a new trial in a case of Felony. It is alleged, and, so far as their Lordships are aware, truly, that according to the universal impression among Lawyers, no such power exists as that which the Court below has exercised in this instance ; and further, that but a single case is reported in which an application for a new trial in felony has been made, and but one the same case, of course in which it has succeeded. That case occurred in 1851, and although, as is well known, the public attention has been very much drawn to the subject during the interval which has since occurred, and it cannot be doubted that verdicts have since been pronounced which might have seemed questionable, no attempt has been made in this country to press the authority of that case in support of a similar application. On a matter of so much importance, it is right to consider that case attentively, and it is fortunate as to the freedom with which their Lordships may deal with it, that two of them who have taken part in the hearing of this appeal, also took part in the decision then arrived at, The Queen v. Scaife, Smith, and Eooke (1), was a case of an indictment for felony, found at the Hull Borough Sessions, and removed by certiorari. The trial was at the York Assizes, before the late Mr. Justice Cresswell, and in the course of it a deposition of a living witness not produced, was tendered on the part of the prosecution ; there were grounds which applied only to (1) 17 Q. B. Eep. 238. CASES I PRIVY COUNCIL. [L. fc Smith, on >vhi-h it was admissible as against him ; tbo counsel 1807 tll;lt prisoiirr objected to its reception, l.ut tin* learned Judge c- T^ ruled the objection, and rightly, In- admitted it, as is said, "subject to the <>1 tin- meaning of which probably was, that he mi^ht. UJM.U consideration, have referred his ruling t> Court of Criminal Appeal. But in summing up he generally to the jury, omitting to tell them that tin- dq*>rv could affect Smith only. Singularly enough, tl, '-ted Scaife and Rooke, and acjui- /<. In tin- following Term a rule nm was obtained for a new trial, ou the grounds of inipr ption of evidence and misdirection. The case was argue some length, and neither in the course of the argument, nor in judgments which followed, was a syllable uttered on the point now in question ; the attention both of the Counsel and the Judges seems to have been exclusively confined to the questions of deuce and misdirection; but after the judgments pronounced making the rule absolute this occurred : the counsel for the 'rule suggested that there was a difficulty in ascertaining what rule should be drawn up, " no precedent having been found for a trial in Frlony." Upon which Lord Campbell is reported to have said " That ini^ht have been an argument against our hearing motion." Still, however, the rule was made absolute, and a new trial, in fact, took place. It appears, then, from this examination of the case, that a most important innovation in the practice of our Criminal Law was here made without a word of argument at the Bar upon it, or the at lion of the Court having been for a moment addressed to it, until after the opinions of all the Judges had been expressed on point really debated. And, as has been already stated, tin has taken no root in our law, and borne no fruit in our pnu Aro th-ir Lordships to be bound by it in the advice they are now to tender to Her Majesty? It is somewhat embarrassing, apparently, to disregard any judgment of the Court of Queen's Bench ; but, in truth, when examined this can scarcely be said to be a judgment upon the point now to be decided ; substantially the Court decided, and decided rightly, the only question directly for consideration, namely, that of the reception of evidence and misdirection, and for that alone the decision is properly an autho- VOL. I.] CASES IN THE PRIVY COUNCIL. 533 rity. That they adhered to it in spite of the consequence involved, j. c. after it was pointed out to them, is true ; and their Lordships now venture to say, to be regretted ; for, at all events, it would seem, that if such an innovation were to be made it should not have " BERTRAND. been made without argument, or indirectly. Their Lordships, therefore, will feel at liberty to consider the present case apart from this authority. The course of the general argument for the Respondent was of this sort : It seemed not to be very seriously denied that, except for the precedent of The Queen v. Seaife, the Court below, in making absolute the rule for a new trial, had introduced a new practice ; but it was said that this was in analogy with the whole proceeding of our Courts of Justice in regard to new trials ; that as to these, as in many other instances, a wholesome improvement in our law had been made and estab- lished ; that this improvement had been made in the exercise of a wise discretion, and perhaps inherent powers, for the advancement of justice ; that new trials had commenced in civil matters, and advanced in them gradually, and, upon consideration, from one class of cases to another ; that thence they had passed to criminal proceedings, first where the substance was civil, though the form was criminal, and thence to misdemeanors, such as perjury, bribery, and the like, where both form and substance were criminal. Hitherto it was admitted that they had, except in the instance of The Queen v. Seaife, stopped short of Felonies, but that the prin- ciple in all was the same; and that, where there was the same reason, the same course ought to be permitted. There may be much of truth in this historical account ; and if their Lordships were to pursue it into details, it might not be difficult to shew how irregular the course has been, and what anomalies, and even imperfections perhaps, still remain. But they need not do this ; it is enough to say they cannot accept the conclusion : what long usage has gradually established, however first introduced, becomes law ; and no Court, nor any more this Committee, has jurisdiction to alter it ; but, on the same principle, neither the one nor the other can, in the first instance, make that to be law which neither the Legislature nor usage has made to be so, however reasonable, or expedient, or just, or in analogy with the existing law it may seem to be. In saying this, their Lordships desire to be under- II IN 'I!!!: I'KIYY rnfNCIL. [L. R. stood as expressing no opinion that the introduction of new trial 1867 I'- lony would or would not lo expedient, or conduce to ft more just or more careful administration of tin- law. eonelusiun to \\liich tin ir I/trdshins have 1 .- on the J'.LI:; I.M>. power to grant the new trial BtJm it unnecessary for them to press any judicial opinion on the remaining point, whether, assuming the power to exist, it was exercised by the Court below on such insufficient grounds that, if the question were < rule could not bo sustained. Xor do they int< -ml to do so; trot, as they will liave humbly to advise Her Majesty tha- ought not to have the benefit of a new trial, and the vcrdi guilty and sentence thereupon will consequently remain in l against him, it may be not improper to add a very few remarks on the course taken at the trial. They are bound to adopt, and willingly adopt, tin- account which the record gives, and it appears that what was done was done at the request of the Respondent and his Counsel, and with the consent of the Counsel for Her Maj.-ty : th- witnesses were before the jury, were asked, all in turn, whether what was read was true, and were submitted the pleasure of the Counsel on either side, to fresh oral exam: :i and cross-examination ; and their Lordships have no douht that th- whole proceeding was conducted by the able and learned Judge who presided with due care for the interests of justice on both sides. In nothing that their Lordships shall say do they intend to make the slightest reflection on him, nor are th< -y iii a condition to say that any injustice to the Prisoner resulted from it. Yet it is one of the inconveniences of such a course, that no one iii their Lordships' position, and called to iwii-w the pro- ceeding, could be sure of the contrary. It is a mistake, moreover. to consider the question only with reference to the Prisoner. The object of a trial is the administration of justice in a course as free from doubt or chance of miscarriage as merely human ad- ministration of it can be not the interests of either party. This remark very much lessens the importance of a Prisoner's consent, even when he is advised by Counsel, and substantially, not, of course, literally, atHrms the wisdom of the common understanding in the profession, that a Prisoner can consent to nothing. For thus it will be seen that a most important consideration is for- VOL. L] CASES IN THE PEIVT COUNCIL. 535 gotten, that of the Jury charged with deciding on the effect of j. c. the evidence. It is essential that no unnecessary difficulty should isc? be thrown in the way of their understanding and rightly appre- j^T dating it The evidence in this case, taken in the usual way on the former trial, had occupied nearly three days. Those of their Lordships who have been used, on motions for new trials, to hear the Judge's notes of the evidence read, probably know well by experience how difficult it is to sustain the attention, or collect the value of particular parts, when that evidence is long ; and one cannot but feel how much more this difficulty must press upon twelve men of the ordinary rank, intelligence, and experience of common Jurymen. But this is far from all. The most careful note must often fail to convey the evidence fully in some of its most important elements, those for which the open oral examina- tion of the witness in presence of Prisoner, Judge, and jury, is so justly prized. It cannot give the look or manner of the wit- ness : his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration ; it can- not give the manner of the Prisoner, when that has been impor- tant, upon the statement of anything of particular moment ; nor could the Judge properly take on him to supply any of these de- fects ; who, indeed, will not necessarily be the same on both trials ; it is, in short, or it may be, the dead body of the evidence, without its spirit ; which is supplied, when given openly and orally, by the ear and eye of those who receive it. Their Lordships neither affirm nor deny that any of these in- conveniences in fact happened on the trial of the Kespondent. It is one of the evils incident to the cause that it makes such affir- mation and denial equally impossible. They do not pronounn ;* that anything amounting in law to a mistrial can be fairly charged on the course pursued. Neither, of course, do they intend to press their remarks in cases where a necessity exists (which is not alleged here), nor to the literal and entire exclusion of the reading any part of the evidence with the guards used on tliis occasion. The part may be so unequivocally formal, or so short, as to make their remarks inapplicable. But their Lordships do not hesitate to express their anxious wish to discourage generally the mode of laying the evidence before the jury which was adopted on this VOL. I. 3 2 Y CASES IN T! Y COUNCIL. (riiil. Th'-y have no doult that, upon an onbehali I M ~ the Respond. -lit, \\hi.-h th.-y recommend t<. I- mad.- t.. tl i:., ; . authorities, such w<-i_'l.t \\ill !> -ivn. t. th. * n marks as t may bo found to deserve. Thrir Lordships \\ill aid vis. JI-r Majr.-ty that t .il .-dii-uld be rastuim-d \sitlumt costs, and that the < r! r l'r. bo reversed. Solicitors for the Appellant ; Messrs. Oliveraon, Peachey, Denby, ct Peacliey. Solicitors for the Respondent : Messrs. Lewis & Lewis. MONEY LEVIEN ........... Am THE QUEEN ............ teran ON APPEAL FROM JAMAK A. Privy CmmcU Jurisdiction Prerogative of the Crown Appeal against conviction by Colonial Covrt for Mitdemeanor Practice Pardon granted "before hearing of appeal. Special" leave to appeal from a conviction of a Colonial Court for a mis- demeanor having been given, subject to tbc question of the jurisdiction of II' r Majesty to admit such an appeal ; and it appearing, at the opening of tlio appeal, that since such qualified leave had been granted the Prisoner had obtained a free pardon and been discharged from prison^ the Judicial Com- mittee declined to enter upon the merits of the case, or to pronounce an opinion upon the legal objections to the conviction, the prisoner having obtained the substantial benefit of a free pardon, and dismissed the appeal. 1 X this case leave to appeal had been granted by Her Majesty in Council, upon the recommendation of the Judicial Com- mittee (1), to the Appellant, from a judgment of a Court of Oyer and Terminer, held by virtue of a Special Commission issued by the Governor of the Island of Jamaica, at the City of Kingston, for * Present: LORD CAIRXS (LORD JUSTICE), SIB WILLIAM ERLE, SIR JAMES WILLIAM COL VILE, SIR EDWARD VAUOHAX WILLIAMS, and SIB RICHARD TORIN KlNDKBSLEY. (1) The Petition was heard on the leydale, Sir John Taylor Coleridge, and 27th of June, 1866, before Lord Wens- Sir Edward Vaughan Williams. VOL. L] CASES IN THE PRIVY COUNCIL. 537 the County of Surrey, in the Island of Jamaica, in the months of J. o. January and February, 1866, whereby the Appellant was sen- 1867 tenced to imprisonment for a misdemeanor in publishing a sedi- LEVIEN tious libel ; such leave was granted, however, without prejudice to j^ any objection that might be taken thereafter to Her Majesty's jurisdiction to grant leave to appeal in a criminal case. The leave to appeal so given was upon allegations contained in the petition, which, in substance, were objections to the constitution and juris- diction of the Court of Special Commission under the Jamaica Act, 29 Yict. c. 6, which it was alleged was absolutely void db initio ,' or, if not so, had been avoided and expired . through the super- seding of the Governor of the Island, and for errors in law and fact in striking the jury, as appeared upon the record. The Attorney-General put in a case on behalf of the Crown, raising the question, first, as to the jurisdiction of Her Majesty in Council to entertain the appeal ; and especially having regard to the fact that since the leave to appeal had been granted the Appel- lant, on his own memorial, had received a free pardon, and was no longer in prison under the sentence complained of. Other grounds were also stated, shewing the regularity of the proceedings and the validity of the conviction ; but, upon the appeal being opened, and the fact of the free pardon having been granted admitted, their Lordships stopped the case. Mr. McMahon (with whom was Mr. H. Payne), appeared for the Appellant. The Attorney-General (Sir J. B. KarslaJce, Q.C.), and Mr. Hannen, for the Crown. t LORD CAIRNS : In this case an application was made to Her Majesty, in the course of last year, for leave to appeal, and, upon the recommen- dation of their Lordships, Her Majesty was pleased, on the 6th of July, 1866, to make an Order, on the petition of the present Appellant, that he should have leave to appeal, without prejudice, however, to any objection that might be taken thereafter, on behalf of the Crown, to the jurisdiction of Her Majesty in Council in the matter. GASES IN TTTE PIUVY COUNCIL. fL. B. j.c. Af tin' tin. tition of t wag pneiMteil aad is- 7 thn Or tho land in question, derived from Ettice, and averred that the Defendant, about the year 1850, had taken possession of the land, and ever since kept it from the Plaintiff; received the rents and profits; cut down trees; and prayed that the Plaintiff be dcrlan d owner, and the Defendant adjudged to deliver up the land, and repay the rent and profits he had received, with 100 as damages. The Defendant pleaded in substance, first, a plea of chose jugfa, alleging a previous action by one Mary Ball against the Defendant to recover the same land, wherein judgment was given for the Defendant, and that the Plaintiff was the representative of Ball. Second, that neither the Plaintiff, nor any of those through whom he traced his title, had ever had possession of the land, or any de- livery or tradition of seisin of it, Imt that the Defendant and his predecessor had always had possession of the land adversely to them. Third, that the Plaintiff's predecessor in estate, Silas Baft, had not received any delivrance de leys from the legal representa- tives of Mary BaU. Fourth, that the Letters Patent only granted lands which Ettice had been previously possessed of, and was entitled to surrender ; that the Plaintiff had shewn no title in Ettice previous to the Letters Patent, and that the Defendant had been in possession of the land for more than twenty years previous to 1832, and that EHice, therefore, was not entitled to surrender them. Fifth, a plea setting out the original grant, by Louis XIV. of France, of the Seigneurie of Beanharnois, and alleging that the land in question did not come within the limits of the original grant, and concluding for a rule or judgment of Experts to determine whether the land in question did or did not come within such limits. Sixth, a plea traversing the title deeds alleged in the declaration and setting up a right by prescription of thirty years. Seventh, a denial that the Plaintiff had ever had possession of the land, or any tradition of it, VOL. I.] CASES IN THE PRIVY COUNCIL. 541 "reele ou feinte." Eighth, a plea setting up " impenses d amelio- J. C. rations," made by himself and his auteurs, and concluding that the 1867 Plaintiff should be ordered to repay them before being put in MACDONALD possession of the land, and lastly, the general issue. LAMBB. The Plaintiff filed general answers to the first seven pleas, and to the eighth a special answer, alleging that all the " impenses et ameliorations " had been made in bad faith, and praying that the rents and profits received by the Defendant might, if necessary, be set off against them, concluding for a rule or judgment of Expertise, and replied generally to the ninth plea. From the evidence it appeared, that the Seigneurie or Fief of Villechauve or Beauliarnois was originally granted by Louis XIV. of France to the Marquises De Beauliarnois and De Beaumont, in the year 1709. Contradictory evidence was adduced by the Plain- tiff' and Defendant respectively on the question whether Russeltown, of which the land claimed in the declaration formed part, was included within the limits of the Seigneurie so originally granted ; but from the view taken by the judgment of the Court below and on appeal, this point was immaterial. By the Imperial Statute, 6 Geo. 4, c. 59, for the extinction of Feudal and Seignioral rights in the Province of Lower Canada, it was enacted by section 1, that whenever any person holding of the Crown as proprietor any Fief or Seigniory, and having legally the power of alienating the same, which Fief or Seigniory lands had been granted and were held, " a Titre de Fief" in " Arriere Fief" or " d Titre de Cens " should by petition apply to the Crown for the com- mutation of, and release from, the Droit de Quint and other feudal burdens, and should surrender into the hands of the Crown all such parts of the Fief as should remain in his possession un- granted, it should be lawful for the Crown to commute the said feudal burdens, and to cause a fresh grant to be made to the per- son so applying of the lands, to be thenceforward holden in free and common socage, as lands are held in England. And by sec- tion 6 it was further provided, that public notice should be given for three months before such grant, calling on all persons who might have or claim to have " any present or contingent right, interest, security, charge, or iucumbrance, either by mortgage or under any other title, or by any other means whatever, in or upon the land," 3 2 Z 2 CASES IN THE PRIVY COUNCIL. [L to signify in \\riti:.- within three montlis their assent to, or dissent I-;: from, the surn ml. r, regrant, and change of f the lands. MACTH.X ALD Shortly after the passing of this Statute, EBice, the Seign- j ^ f, made uj>j>lirat ion to the Crown for a commutation of its f< hardens and a re-grant of such of tin- lands of as remained ungranted, to be h Id in free and common socage, and on the J'th <>f October, 1832, sum nd.-red to the Crown all the ungranted portions of T . < )n the loth of May, 1833, his then Majesty, King William IV., by Letters Patent under the Great S granted to Ellice the lands that had been surrendered, to be held by him in free and common socage. The Plaintiff founded his titl-- under a deed of sale, dated Septem- ber 25th, 1855, made between Silas Rozier Ball, Edward Ellice and 9 the Plaintiff, by which Ball sold to the Plaintiff a lot of land, form- ing part of Lot No. 17 in the 5th range of RusseUown, and all* by the Plaintiff to be one of the lots of land in dispute ; and that Ellice confirmed such sale, and conveyed to the Plaintiff all and every the title and interest which he, Ellice, might have in and to the land. Ellice s title was traced back to the Letters Patent of 10th ol May, 1833. The Defendant relied on his right to the land by prescription, admitting that neither he nor his predecessors in estate had obtained, or even asked for, any grant of the land, either from the proprietor of the Seigneurie of Villechauw or Beauharnois, or from the Crown. In support of this title by prescription, the Defendant gave evidence shewing, that in the year 1807 one Levy Petty was in possession of Lot No. 16 in the 5th range of RusseUown, and con- tinued in such possession till 1811, when he was succeeded in pos- session of it by one David Goodwin, who continued to occupy it till September, 1833, being a few mouths subsequently to the surrender of the land by Ellice to the Crown, and the re-grant of it ; that in September, 1833, Goodwin gave up possession of the land to the Defendant, who had continued to occupy it up to the commence- ment of the action. It was admitted that no legal conveyance of the land by Goodwin to the Defendant had been executed, but a certificate of sale in the following form was given in evidence : " Russeliown, Sept 21st, 1833. " This may certifey that I do this day sell, convay and give up, VOL. L] CASES IN THE PKIVY COUNCIL. 543 all right, title and clame that I have, or ever had, to the lot of J. C. land I know receide on to James Lamb, being lot No. seveneteneth 18G7 in the third section. MAC^ALD " David Goodwin. v. " James Richardson ") ... T> t 7 if 7 f Witeness." " Patrick Motion J in virtue of which certificate the Defendant claimed to be entitled to join the possession of the land by Goodwin to his own possession of it, for the purposes of the plea of prescription. It was admitted that " No. seveneteneth," in the above mentioned certificate, was put in mistake for 16th, and the Defendant called witnesses to prove, that there never was a Lot No. 17 in the 5th range of Eusseltown, but that the land in question formed part of Lot No. 16, which was so occupied by the Defendant and David Goodwin, and that the possession of the Defendant and David Goodwin extended over the whole of the land in question. The Plaintiff also admitted that, previously to the year 1834, the land called Lot No. 17 formed parts of Lots Nos. 15 and 16 which then extended to the boundary between Russeltown and the Township of Hemmingford, and that the number had been altered by Livingstone, a Surveyor employed by the Seigneur. The case came on for hearing on the 27th of May, 1861, and on the 28th of June, 1862, the Judge of the Superior Court (The Hon. Mr. Justice Smith"), gave judgment, dismissing the action with costs, on the grounds : first, that Edward Ellice was not in possession of the land in question at the time of the alleged sur- render of it, but that David Goodwin had been so for twenty years ; and that, therefore, Ellice could not legally surrender it, or obtain a re-grant of it from the Crown ; secondly, that the grant by the Crown to that extent was null and void ; thirdly, that by the law of Lower Canada, Ellice, having allowed Goodwin to settle on the land, could not eject him from it, but only claim from him the accus- tomed dues ; fourthly, that the Plaintiff traced his title only to the Letters Patent, which conferred no new title on him, and that the Defendant had proved his plea of prescription; fifthly, that as the Plaintiff claimed through Mary Ball, he was estopped by the judgment given against her as set out in the Defendant's first plea. ;, 1 1 CASES IN THE FBIYT COUNCIL. [L. R. A similar judgment was given in the other action. if -;: From this jun,thel' -caled to the Court of Queen's Bench at Montreal, and 01 'th of December, 1864, that Court (consisting of the Chief Justice Duval, and the Judges, Aylwin, Meredith, Drummond, and Mon- delet) gave : lament of the Court below, on the single ground that the Defendant had proved his plea of Mr. .Iu>tice Meredith dissented from the majority of the Judges, on the ground that the certificate of sale < September, 1833, operated as a conveyance by the law of Lower Canada. As there was a difference of opinion on this point, Court pronounced the following judgment : " Considering that the Defendant's plea of peremptory exception filed in the Su- perior Court, alleging that he, the Defendant, hath held and possessed publicly, and in good faith, for more than thirty years immediately before the institution of this action of the said James Macdonald, hath been proved by the evidence adduced in this cause, and that by reason of such possession the Defendant, Respondent in this Court, hath acquired a title by prescription to the said land, and that in the judgment pronounced by the Superior Court at Montreal on the 28th of June, 18G2, dismissing the action of the Plaintiff, Appellant in this Court, with costs, there is no error, this Court doth confirm the said judgment, and doth condemn the Appellant to pay to the Respondent the costs by him incurred in this Court (the Honourable Mr. Justice Mere- dith dissenting)." Against these judgments the present appeals were brought, and were heard together. SiriJ. Palmer, Q.C., and Mr. H. M. Bompat, for the Appellant : First, as to the Appellant's title. The Letters Patent of the 10th of May, 1833, are sufficient primd facie evidence of the facts stated in them, and conclusive on all points, if not contradicted or bad on the face of them : Jackson v. Latdon (1) ; The People v. Mauran (2) ; The Case of the Alton Woods (3); BuUers N. P. p. 76; especially as (1) 10 Johns. Amr. Rep. 23. (2) 5 Denio's Rep. 398. (3) Co.Bep. Pt 1, pp. 51-3. VOL. L] CASES IN THE PRIVY COUNCIL. 545 in the recitals in the grant it is stated that the lands in question J. C. formed part of the Seigneurie of Beauharnois or Vttlechauve, and 1867 remained ungranted at the date of the surrender to the Crown by MAC-DONALD Ellice. In the answer of the Sei^neurial Court to question, No. 17, T * c LAMBK. all the Judges, except Mr. Justice Mondelet, adjudged that the Seigneurs "had full and entire property (dominiiim plenum} in the ungranted lands in their Seigneuries (1) : Ordonnance of Louis XIV., 6th July, 1711 ; Edicts and Ordonhances of Seigneurial Tenure in Canada, p. 272 [Quebec, 1852]. These facts not having been disproved by the Defendant, the Crown must be held on the surrender to have been entitled to grant, and to have granted an absolute title to the lands in dispute to Ellice. But an im- portant question arises with respect to the governing law of prescription to be applied, we contend that the Court below miscarried in applying the ancient French law to the case. The law that governs it is the English law. The Proclamation made on the cession of Canada in the year 1763 introduced the English law by right of conquest : Campbell v. Hall (2). It is true the effect of the Proclamation, as to the full extent of the intro- duction of that law, has been doubted, as it does not mention in express words " English law." The Statute, 14 Geo. 4, c. 83, however, by implication, makes the Proclamation to this extent apply to English law, even if it had not been so before. The Statute, 6 Geo. 4, c. 59, was passed to remove doubts as to certain matters, but section 8 does not abrogate the English law, being the governing law. So the preamble to the Colonial Ad, 9 & 10 Geo. 4, c. 77, implies the English law to be the rule. The Court in Lower Canada, in the case of Paterson v. McCattum (3), held, upon an investigation of the Proclamation of 1763, that the English law relating to mortgages applied to Lower Canada. The Colonial Act, 20 Viet, c. 45, does not apply, as, first, it con- travenes the Imperial Statute ; and, secondly, it was subsequent to the date when these actions were brought. These points are fully discussed in Stuart v. Bowman (4) ; Wilson v. Wilson (5). That being so, the lands in dispute, subsequently to the change of tenure, (1) Low. Can. Eep. Seign. Ques. (3) Stuart's Low. Can. Kep. 429. vol. A. p. 62a. (4) 3 Low. Can. Eep. 310. (2) 1 Cowp. 204. (5) 8 Ibid. 34. .Vl; CAEBS IN THE PRIVY COUNCIL. [L, B. must be held to have been subje*- !ish law of precrij>- u.-ii u> it .-xM .1 ut tin- tim.-ot' the Act, 6 Geo. 4, c, 59, and it isclcar no pr< *'Tiptiv. right could have been acquired by the ll> under that law. Under the English law there was no title in Respondent Prescription must be proved, orpren rially by holding, or a lost grant, I ut tli.-ri/M \\< uld not bebarn- 1 under sixty years : Shd/or-l. \i. 1'. St.it.. p. 1 !". II- n th- all.-ged adverse possession was not continuous, as requin <1 l>\ the Engli Statute of Limitations, 3 & 4 Will. I, c. 27, sees. 2, 7, 34 : Doe d. Carter v. Barnard (1) ; Dixon v. Cray 'fere (2) ; and the prescription was hr.'k.-n by the grant of the Letters Patent So by th. law prescription must be continuous and uninterrupted : Troplony, Traite de la Pres, Tom. i., p. 568, Nos. 400, &c. ; Duration, Tom. xxi. No. 240, p. 563; Pothier, Traite de la Pres, No. Ill; Dunod, Traite de la Pres, pp. 19, 20 ; Marcade, Traite de la Pres, p. 100; Nos. 435, 119, 123, 124, Code Civil, B. iii., tit. xx., Art. Coutume de Paris, Tom. ii., p. 299 ; Herrick v. Siseby (3). Second, assuming the French law to apply, what is the effect of the plea of prescription? The mere possession of waste land forming part of a Fief without a grant, for less than thirty years, the time required by the old French law of prescription, does not, by the law of Lower Canada, give any right to the land as against the Seigneur, but, as in this case, was a mere holding for him. Goodwin, not having received any grant of the land in question, nor held it for the time required by the law of prescription, Eflice lawfully surrendered it to the Crown, and by the Letters Patent the Crown re-granted it to Ettice free from any right of Goodwin. Neither the Defendant nor Goodwin entered on the land under a just title, or held it bond fide, and a possession of thirty years was, therefore, necessary to give them a title to the land, which neither Goodwin nor the Defendant held for that time. Next, the Defendant is not entitled to join the possession of Goodwin to his own for the purpose of prescription, without proving a good legal conveyance of the land to him by Goodwin. The cer- tificate of sale produced by the Defendant, being "sous seing prive" has no date as to third parties, and there is, therefore, no proof (1) 13 Q. B. Rep. 945. (2) 17 Beav. 421, 429. (3) Antf, p. 436. VOL. I.] CASES IN THE PEIVT COUNCIL. 547 that the date referred to therein took place at the time the De- j. c. fendant entered on the land, or that, during his possession, he was 1867 the successor " a titre particulier " of Goodwin. Again, the sur- n ACDONALD render of the Seigneurie to the Crown, and the holding of it by _ * the Crown for seven months, prevented the Defendant being en- titled to join the possession of Goodwin, before that surrender to the possession of Goodwin and the Defendant, subsequent to the sur- render, so as to make up the thirty years' prescription required. So again, previous to the change of tenure, Goodwin could only pre- scribe for the " domaine utile " over the land, the land itself being inalienable ; and, after the change of tenure into common socage, Goodwin could only prescribe for the absolute ownership of the land ; subinfeudation being unlawful, and possession in two differ- ent rights cannot be united to form the period required by the law of prescription. Now, the Defendant's plea of prescription alleges a right acquired by prescription to the absolute ownership of the land, and a right to hold it of the Seigneur. No such prescriptive right has been proved, or could be, the land having been inalienable till within the thirty years at the commencement of the actions. Mr. Manisty, Q.C., and Mr. Wills, for the Respondent : Although the lands formed part of the Seigneurie of Beauhar- nois, yet the Appellant has failed to establish a title to the lands in question, or possession of the lots in Ellice anterior to or since Good- wins possession, which was necessary to maintain the action : Pothier, tit. Propriety No. 317. On the other hand, the evidence of uninter- rupted possession by Goodwin and the Respondent is conclusive. He must, by the French law, be presumed proprietor : Code Civil, B. III. tit. xx., Art. 2230 ; and can join possession : 11. Art. 2235 ; Code Civil du Bas Canada, tit. Prescription," Art. 2195, p. 599. By the English law a purchaser must shew seisin within thirty years. No writ of right applies ; Statute, 32 Hen. 8, c. 2. It was proved that Lamle was entitled at the time the actions were commenced. No serious doubt can be entertained that the law to govern the case is the old French law prevailing in Lower Canada. Such a point was never before taken in the numerous appeals to this Tribunal from Lower Canada, where the rights of the parties have always been regulated by the old French law. As prescription was 548 CASES IN THE PBIVT COUNCIL. [L. B. J. c. established according to the principles of the ancient French law, IVT tli-- t to recover the he, or those through whom ho claims, ever had a right to it, was barred by lapse of time, and by advene enjoyment by Goodwin and the Respondent, which was continuous, for upwards of thirty years next before the commencement of the present actions. As to prescription, the law is clearly stated in Ferriere, Art 118, Coui. p. 425; 1 Duptessi*, p. 500; Troplong, "Privileges," p. 919, Nos. 119, 187; Vazeitb, Pres. p. 42, as relied upon in the Court below. Herrick v. Sixty (1) is in point, and was decided by this Court upon the French law. LORD CAIRNS: The actions in which these appeals are brought were petitory actions to recover possession of two pieces of ground in tfie 5th range of Russeltown, in the Seigneurie of Beauhamois. t These pieces of ground have been stated in the proceedings, and in the arguments, as Lots 16 and 17 ; but it is clear tlmt the whole formerly went by the description of Lot 16, and that the division into two lots did not take place until some time about the year 1834, at which time the division was made by Livingstone, the Agent of the Seigneur, in his own plans. It was admitted in the argument before us on behalf of the Respondent, that the land in question formed a part of the Seigneurie of Beauhamois, as originally granted in 1729 by the French King, Louis XIV. ; and one of the points in dispute in the Court below has thus been removed. The judgment delivered in the primary Court of Lower Canada by Mr. Justice Smith in favour of the Respondents proceeds upon the principle that the Respondent and Goodwin, his predecessor, had been in possession of this land from 1807, and that this pos- session must be taken to have been by permission of the Seigneur, and that, therefore, the Seigneur could not eject the Respondent, but only claim from him rights and dues such as a tenant should render to his Seigneur. This view of the case was again pressed in argument upon these appeals, but their Lordships are of opinion that, although there may be some facts appearing in the evidence (1) Ante, p. i VOL. I] CASES IN THE PRIVY COUNCIL. 549 which would form a ground for such an argument, the pleadings J. C. between the parties render the argument inadmissible. The 1867 Appellants in both the appeals allege in their declaration that the Kesponclent wrongfully, and without any title, took and obtained possession of the land, and has kept illegal possession of it, and pray delivery of the land. The Respondent, on the other hand, after certain objections to the Plaintiffs' title, which are now out of the case, alleges a seisin of the lands in 1807 by Goodwin, a transfer in 1833 from Goodwin to the Respondent, and that the land has been peaceably, openly, and uninterruptedly possessed and enjoyed by Goodwin and the Respondent, animo Domini, from 1807 to the present date, and that the Respondent has a right to be declared proprietor and owner of the land. Their Lordships are of opinion, with the Court of Queen's Bench of Lower Canada, that the case is thus put on both sides as one of adverse possession, and that what the Respondent has undertaken to prove is not a tenure, express or implied, under the Seigneur, but a title by prescription, for thirty years and upwards, against the Seigneur. The first question, therefore, is one of fact : in whom has the possession of the land meaning thereby Lots 16 and 17 (formerly styled Lot 16) been for thirty years prior to 1855? If posses- sion has been de facto in Goodwin and the Respondent, that possession is admitted to be an adverse possession. The piece of land which, before the year 183-i, had been known as Lot 16, had on the north and east, or, more accurately, on the north-west and north-east, the natural boundary of the Black River and English River. On the west, or south-west, it was bounded by Lot 15, and on the south it extended, according to the evidence, to the line called the Hemmingford Line. Taking the parol evi- dence in the case, and more particularly that of the witnesses, Stafford, Allard, and Porcheron, it appears that one Levy Petty was in possession of the lot in 1 807, in which year Goodwin took pos- session of it ; that a house was built upon it in Petty 's time, which Goodwin at first occupied, but afterwards built a house for himself ; that there was a pretty large clearing when Goodwin came ; that Goodwin laboured and cropped the land, and was a married man living with his family ; that Goodwin paid the bridge-tax for the ; ( ;,0 CASES IN THE PRIVY COUNCIL. [L. B. J. a l"t ; that uli n ;i road .-roaring Lot 16 wa projected by th- inl i- : tants Goodwin was asked, and upon .* consented, to ' ve tn<> ' a1 ' th<- north -nd of it to t he Hemmingford Line was known fr- aud as the Goodwin Lot. The possession of the whole by the Respondent from 1833 is still more clearly proved, and was, in fact, little, if at all, disputed. There i-. r, a piece of evidence coming from the Scignewr himself, <>r his Agents, which their Lonkhips look upon as still more < <>n the fa-t of possession. It appears that in the year 1828 steps were taken, upon the death of Mr. George Ellice the former Seigneur, t> n ijuire from the persons then holding the lands an exhibition of the titles under \\hirh they h.M. A list is given of the persons then found in possession of the lots in Russd- town on whom circular notices from the Agents of the Sei gn eur were served, and the name of David Goodwin is there entered as the person in possession of Lot 16 of the third section ; service being stated to have been made by delivery of the circular to his wife, and speaking to himself afterwards. His possession i> tn-ated as a possession of the \\hole lot, for a distinction is made in o: cases where a lot is possessed in halves by different persons; and the proceedings in 1828 are upon the footing of the persons men- tioned in the list having been in possession for some time. The result of these proceedings is, for this purpose, immaterial; but what has been stated is evidence of the most satisfactory descrij>- tion that the Agents of the Seigneur in the year 1828 found Goodwin in possession of the whole Lot (then known as Lot 16), and this evidence, coupled with the testimony in the case, establishes, to the entire satisfaction of their Lordships, a possession by Goodwin and the Respondent of the whole lot for upwards of thirty years. The other questions in the case are questions of law. Goodwin gave up possession to the Respondent in 1833, making over his title by the document dated the 21st of September, 1833 : [His Lordship read it (1).] It is admitted on both sides that it must be taken that the word " seventeenth " is in this document to be read as " sixteenth," but it was contended that the document was insufficient to connect the (1) Ante, p. 542. VOL.'L] CASES IN THE PRIVY COUNCIL. 551 possession of Goodwin with that of the Respondent : First, because J. C. it was a document sous seing prive, and, therefore, without date as 1867 regards third parties ; and, secondly, because it was not an instru- MACDONALD ment amounting to a conveyance and translatif de propriety. , " Both these objections were overruled by the Court of Queen's Bench, and, as their Lordships think, rightly. The first of the objections, viz., that the document is sous seing prive, was little argued by the Appellant; and their Lordships do not think it necessary to add anything to the reasons for disallowing it given by Mr. Justice Meredith. As to the objection that the paper is not a conveyance translatif de propriety it would, their Lordships think, be somewhat remark- able if, where the real object is to shew that an incoming occupier claims under and by way of direct continuation of the occupation of an outgoer, and where at the time there is no real title to be conveyed, an instrument adapted to pass a real title should be required. Their Lordships think, however, as did the Court below, that there is no foundation for this objection in any of the autho- rities which have been cited. The authorities speak of a prede- cessor and successor, of the successor claiming by contract or by Will, and of a legitimate continuation of possession ; and they are careful to negative as a sufficient connection the mere fact that one possession has immediately preceded the other, and they do no more than this. There is in the present case ample proof from the paper, and from the parol testimony, of a bond fide sale from Good- win to the Respondent, and of possession taken and continued under that sale ; and this, in their Lordships' opinion, is sufficient. The Appellants contended, however, that inasmuch as under the Statute, 6 Geo. 4, c. 59, Mr. Edward Ellice, the Seigneur, had, by the surrender of the 20th of October, 1832, vested the Seigneurie, and the ungranted lands thereof, including, as was said, those now in question, in the Crown, to be re-granted in common socage, there was an interruption in the prescription, since no prescription would run against the Crown. Their Lordships do not think it necessary to consider how far, under any circumstances, this argument could be maintained, inasmuch as in the present case they find that no acceptance of the surrender by the Crown was made until the grant of the 10th of May, 1833, so that the land was surrendered ;,;,.> GASES IN THE PRIVY COUNCIL. fL. R J. a and re-granted 'unojiatu, and merely as a mode - ting the LM1 tenure, and there never was any possession or ownership of the land by the Crown. Their Lordships have assumed, as was ultimately conceded by the Couns. 1 t' **- MARIE MARGUERITE MAURICE PAQUET,) , AND OTHERS '. j ** ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA. Lower Canada, law of Ordonnance 1639, Art. 6, construction of Marriage in extremis. Art. 6 of the Ordonnance of Louis XIIL (26th November, 1639), in force in Lower Canada, is in these terms : " Voulons que la meme peine (de la privation des successions) ait lieu centre les enfans qui sont nes defemmes que les p&res ont entretenues, et quils epousent lorsqu'Hs sont a Tcxtremitt de la vie:" II til, first, that as the above article of the Ordonnunce was a restrict of natural liberty and penal in its nature, it was to be strictly interpreted, and only when the fact of a party being in extremis at the time of the solemnization of the marriage was clear and beyond doubt could* it be applied. Second, that although death had taken place two days after a marriage had been celebrated, such Article of the Ordonnance did not affect the validity * Present: SIB Jomr TAYLOR COLERIDGE, SIB JAKES WILLIAM COLVILE, SIB EDWARD VArr.iiAX WILLIAMS, SIR Firz-RoY KELLY (THE LOHD CHIEF BAKOS), and SIR RICHARD TURIN KIXDERSLKY. VOL. L] CASES IN THE PRIVY COUNCIL. 5 of the marriage, unless the party was at the time sensible that he was in J. c. his last illness, and in immediate danger of dying. Suit for nullity of marriage, and to set aside a marriage contract, on the v~/ ground that at the time of its celebration the husband was delirious and of SCOTT unsound mind, arising from an attack of delirium tremens, from which p *' disorder he died two days afterwards. The evidence in chief of one of his medical attendants being to the effect that he was unconscious, and, in his opinion, from the nature of the disease, incapable at any time of contracting such marriage : Held, on a general review of the evidence, to be rebutted, especially, by the conduct of the same medical witness in speaking of the probability of deceased's recovery ; and by the evidence of the Priest, Notary, and wit- nesses at the marriage, of his capacity ; and the judgments of the Courts in Lower Canada sustained. X HIS was an action brought by the Appellant in the Superior Court for Lower Canada, District of Montreal, against the Respon- dents, Paquet and others, the Widow and children of William Henry Scott, late of the Village of St. Eustache, in the county of Two Mountains, Lower Canada, Merchant, deceased, to have the marriage of Scott with the Respondent, Paquet, declared null and void, as re- garded its civil effects, and also to set aside the marriage contract executed on the occasion thereof. The Appellant claimed as his sister and heiress-at-law. The Superior Court, by its judgment, sustained the marriage and contract, and that judgment was confirmed on appeal by the Court of Queen's Bench in Lower Canada. Hence the present appeal. The facts were these : Scott, a member of the Presbyterian Church, had for many years cohabited with the Respondent, Madame Paquet, a Roman Catholic, by whom he had a family of five children, whom he recognised and treated as his own children. In 18-45 a marriage was con- templated and intended between Scott and Madame Paquet, which was to be celebrated according to the rites of the Roman Catholic Church, and all necessary preparations were made for that purpose, but the completion was prevented by Scott's refusal to give a pre- liminary engagement, required by the Priest before celebration^ that he would cause his children to be educated in the Roman Catholic religion. On the 15th of December, 1851, Scott went to the house of Madame Paquet, who resided in the Village of St. Eustacfa, just 1 CASES IN THE PRIVY COUNCIL. [L. B. J. 0. opposite to IIH own, and thoro Rent for a Roman Call ..-at, i*''~ for tin- purpose of proceeding to a marriage; n SCOTT no Ljagement was now demande 1 of him ii..,:, t!..it he ir wouM leave hi* wife and chiMr i-m, he caused a marriage to be celebrated between 1 ind Madame Paquet on th<- <>f the following day, tin- 1'ith, according to the rites of the Roman Catholic Church. By of mar- riage, the consorts acknowledged as legitimate their five chill The marriage was accompanied by a contract or settlement pre- pared by a Notary. Scott was of intemperate habits, and had indulged in driii' during the course of a contested election which took place three days previous to his marriage. He was unwell at the time, and his Physician, Dr. Jamieson, was with him during the greater part of the day of his marriage. His illness increased, and, according to the medical testimony, although the nature of his disorder had not been originally understood, yet it ultimately declared itself to be delirium tremens. As late as the 17th of December, Dr. Jamieson considered that the disease, though of an aggravated chara- would give way to the treatment which he and Dr. Fisher, another Physician, recommended. But the prescribed treatment was not followed, and Scott sank and expired on the 18th of that month. From the death of Scott to the period of the institution of the action, his children publicly enjoyed the character of being his legitimate heirs, and were judicially admitted to accept his succes- sion with benefit of inventory. The Respondent, Paquet, had also, since Scott's death, been in possession of the immovable property which he by the marriage contract settled on her in case of her surviving him, and which contract was, in April, 1852, duly regis- tered. On the 4th of 3Iarch, 1854, the Appellant brought an action against the Respondent, Paquet, and the five children of Scott, in the Superior Court for Lower Canada, in the District of Montreal. The declaration stated, that Scott had died intestate, leaving three sisters, his only surviving relations and heirs-at-law, two of whom had renounced his estate, the Appellant accepting it as sole heiress- at-law ; that in December, 1851, he fell ill of the malady that caused his death ; that his disease became so aggravated that, on the 15th VOL. L] CASES IN THE PEIVY COUNCIL. 555 of December he was delirious, and so continued up to his death ; J. 0. and that, while in that state, he was quite incapable of entering 1867 into any contract or granting any valid consent ; that he had lived g^, many years in a state of concubinage with the Respondent, Paquet, p v ' without marrying her or acknowledging her as his wife ; that - while in a state of delirium, and incapable of consent, she, pro- fiting by his condition, on the 16th of December, 1851, procured a pretended marriage to be solemnized between her and Scott, and, on the same day, procured a pretended marriage contract to be exe- cuted ; that by the register of the marriage it was endeavoured to recognise as legitimate the children of the illicit connection and the provisions of the contract ; that Scott was at the time of the marriage in a state of delirium, and in extremis, and afflicted with the malady whereof he died ; and the pretended marriage was clandestine, celebrated without the knowledge or consent of Scott's relations, and was neither publicly solemnized, nor accompanied by the necessary formalities, nor followed by consent on his part, and that the Respondent, Paquet, and the other Respondents, had assumed to be the heirs of Scott, and had taken his estate into their possession, and the declaration prayed that the pretended marriage and contract of marriage might be declared null and void. The Respondents filed their pleas, consisting of two sets of exceptions peremptoires and a defense en fait. The first set of exceptions referred to the capacity of the Appellant to maintain her action, and was, in substance, to the following effect : That the Appellant being only a collateral relation, could not maintain such an action ; that ever since the death of Scott the Respondents had assumed the character of his representatives, and that their right to that character had been publicly recognised, and had been acquiesced in by the Appellant; that the Appellant had recognised their right to such character by transferring to Barbara, and Jane Scott her rights as one of the legatees of Scott's father, in a sum of money due on a judgment obtained by Scott's father, on the 24th of April, 1824, against Scott and another, and that the Appellant could not maintain her action without joining her sisters as co-Plaintiffs. The second set of exceptions referred to the merits, and was to the following effect : That for many years Scott VOL. I. 3 3 A >; CASES IN THE PRIVY COUNCIL. [L. R. J. 0. and the Respondent, Paquet, li\ as husband m is.-,? under promises frequently reiterated byfibott that he would m. ^^ her; that the Appellant ami her sisters were aware and recognised the position of the Respond. -nt. Faquet, and II-T children ; that about twelve years previously Sctt had int< : to fullil his promise of marriage, and had awemU.-d his in and the Priest for that purpose, but was prevented from so doing by understanding that the Priest required him to make oath he \M>uld allow hi* children to be brought up as Roman Catholics ; that it was with the view of carrying this intention into < that he contracted the marriage complained of; that such marriage was contracted legitimately and lawfully in the presence of a Roman Catholic Priest duly authorized to celebrate such marriage ; and that Scott was at the time sound in mind. The defense en fait put in issue all the statements contained in the Appellant's declaration. AY it nesses were examined on behalf of the Appellant and Re- spondents. The Appellant objected to the reception of the dence of the Respondents' witnesses, so far as it went to prove that a marriage had been celebrated, on the ground that verbal ; dence of a marriage was inadmissible by law, and such objec- tions were reserved, but the evidence was afterwards admit The evidence as to the capacity of Scott was conflicting. On the part of the Appellant, Scotfs medical attendants, Dr. Jamieson and Dr. Fisher, declared as their opinion, that in the case of a person suffering from delirium tremens there could be no lucid interval during which he could have the use of his faculties, or be fit to contract any kind of business ; that Scott was in a state of deli- rium tremens just before and immediately after the alleged cere- mony, and that it was a scientific fact that this disease never leaves the patient until it leaves him finally ; that there may be times at which it is more intense than at others, but that the patient is never perfectly sane. The evidence for the Respon- dents consisted of the depositions of the Notary, Priest, and others who were present at the marriage ceremony, and they deposed to the perfect sanity of Scott at that time. It was proved that Dr. Jamieson had said, when attending the deceased, that he con- sidered that the disease would give way to the treatment he and VOL. L] CASES IN THE PRIVY COUNCIL. 557 Dr. Fislier recommended. No medical evidence was produced by J. C. the Kespondents in answer to evidence given by Drs. Jamieson 1867 and Fisher. SCOTT The cause came on to be heard, and by the judgment of the p A r ^E?r Superior Court, delivered on the 30th of May, 1856, the action was dismissed with costs, on the ground that the Appellant had failed to establish the material allegations of her declaration. The Appellant appealed from this judgment to the Court of Queen's Bench for Lower Canada. The appeal was heard before the Justices Aylwin, Duval, Caron, and Meredith, and on the 5th of October, 1857, the Court delivered judgment, dismissing the appeal with costs. Mr. Justice Duval and Mr. Justice Caron con- sidered that all the questions raised by the pleadings ought to be decided in favour of the Respondents, and Mr. Justice Meredith agreed with them so far as related to the questions put in issue by the declaration. Mr. Justice Aylwin dissented from the opinion of the rest of the Court, and considered that all the questions raised on the pleadings ought to have been decided in favour of the Appellant (1). The present appeal was brought from this judgment of affirmance. It was twice argued (2). Mr. Garth, Q.C., and Mr. A. T. Watson, for the Appellant : Three questions arise : First, we insist that the marriage has never been celebrated with the forms and ceremonies required by the ancient law of France, in force in Lower Canada, so as to con- (1) See case reported, Low. Can. Jur. tion was made by the Counsel for the vol. iv. p. 149. Appellant for the admission of fresh evi- (2) This appeal was twice argued, dence said to have been obtained since first, on the 24th, 25th, and 26th of the former hearing, relative to the June, 1861, before Lord Kingsdown, mental capacity of Scott. A petition, Dr. Lushinyton, Sir Frederick Pollock shortly after the first hearing, had been (The Lord Chief Baron), and Sir John lodged in the Council Office for that Romilly (The Master of the Rolls), but object. The Respondents' Counsel ob- their Lordships not being satisfied, jected to the affidavit in support of the directed the case to be re-argued. It application being read, or the reception was stated at the Bar that the re- of new evidence after the long delay, argument was delayed by the poverty and their Lordships were of opinion of the parties not enabling them to that in the circumcumstanccs such an bring it on for hearing. application could not be entertained. On the case now coming on, applica- >8 OASES IN THE PRIYY COUNCIL. [L. R. ftitut> a vjili-1 marriage. * [The : If there was is'? a marriage de facto, it lies < ua*- invalid in law.] gj^ To be valid it ought to have been performed by the I p *: Priest: Dagussfau, Tom. v. pp. IT.n. I.M. i.vj. i:,.l; Pothier, verbo "Manage" Partie I. ( h. i. ^ -Mfcr, rfu Control fa Mariage, Par',. IV. .-,,,. 1. sec. 3, Art. 1. pur. 5, No. 350 [U. 1781]; Danty, p. 102; Durand deMaillanne, Diet. C&n.voce" Mandeft Tom. i. p. :._':: [ 1!!. 7,y> *. 1770]; De Hericourt, Loix, Ecdes. Cl Art. 1, Nn. '11, p. 171. [The Respondents' Counsel objected to point being now raised, as in the declaration the Appellant had admitted the marriage, and only sought to avoid it as being < brut. (1 when Scott was in extremis and unconscious, and submitted that it was not for the Respondents to give formal proof of the factum of such marriage; but that if it were necessary the proofs were sufficient according to the Provincial Statute, 35 Geo. 3, c. 4, sec. 4, \\hirh only requires the presence of two witnesses.] This point was not further argui-1. Second, the evidence of the medical attendants of Scott s 1 that at the time the marriage took place between Scott and the Respondent, Pt. \\liich was only two days before his death, Scott was d Textremite de la vie, so as to render such marriage null and void by the Ordonnance of Louis XIII. of 1639, Art. 6, and the Edict of the year 1697; depriving of civil effect marriages in extremis: Pothier, Tom. v. p. 238, Partie 5, Ch. ii. p. -PJ'.' : //-. : Merlins Rep. de Jur. verbo " Mariage" Tom. xix. s t. 3 ; Ib. Tom. viii. i ,-. 19, par. I. No. 3, p. 47; [Quarto Ed.]. Third, the evidence establishes the fact, that at the time of the pretended marriage Scott was delirious and unconscious from an attack of delirium tremens, and then incapable of entering into any valid contract. In Dimes v. Dimes (1); The Attorney-General v. ParntJier (2) ; Dew v. Clark (3), the principles relating to lucid intervals are fully explained, and those authorities shew that the party claiming must establish that fact. Sir R. Palmer, Q.C., and Mr. Westlake, appeared for the Re- spondents, but were not called upon. (1) 10 Moore's P. C. Cases. 422. (2) 3 Bro. C. C. 440. (3) 1 Add. Ecc. Rep. 279. VOL. L] CASES IN THE PRIVY COUNCIL. 559 July 10. Their Lordships' judgment having been reserved, was J. C. now pronounced as follows by 1867 THE LORD CHIEF BARON : ^ ran . . PAQUBT. This is an appeal from a judgment by the Court of Queen's Bench for Lower Canada affirming a decision of the Superior Court of that Province in an action brought by the Appellant against the Eespondents, and in which the question to be deter- mined was, whether a marriage between William Henry Scott, deceased, and the Respondent, Marie Marguerite Maurice Paquet, on the 16th of December, 1851, was valid or void, Several questions were raised (but disposed of during the argu- ment) upon the alleged non-compliance with the formalities essential to the validity of a marriage by the law of France, which prevails in Lower Canada. The objections to the marriage upon these grounds (which appeared when duly considered to be unsup- ported by the authorities) were abandoned by the Counsel for the Appellant Two questions alone remain : The first, whether this marriage was contracted while Mr. Scott was "a Textremite de la vie," within the meaning of the 6th Article of the Ordon- nance of 1639 ; the second is, whether, at the time when the marriage was so contracted, Mr. Scott was of sound mind and in possession of his faculties. Both these questions have been decided in favour of the Re- spondents, unanimously by the three Judges of the Superior Court, and by three Judges out of four of the Court of Queen's Bench in Lower Canada. And we think that this Court ought not, unless there be manifest error in the judgments under appeal, to overrule these decisions so pronounced in the Country in which the law of France, by which the first question must be determined, prevails, and must be known and continually acted upon by the Courts of Law ; and in which also the witnesses on both sides reside, and may have been more or less known to, or seen, when under examination, by the Judges, or some of them, who likewise are familiar with the usages and customs of the place in which all the circum- stances which formed the subject of the evidence occurred. The language of the Ordonnance is this : " Voulons que la meme peine (de la privation dea successions) ait lieu contre les enfans qui CASKS IN. THE PRIVY COfNriL. j c. *>ni n/ de femmet que let pert* oni entretenuet, el qufls fpousent is.:? Jonquils sont a Teaetremiie de la vie." t Pothier (No. 430) says: "II faui que ceux qui attaquent ce r mortage* pouvent deux choses " 1. Le mauvais commerce qui a precede le mariage. Que la personne etait in extremis lorsque le mariage contract*". " Le mariage est cense 1 contract^ in extremis lorsque la personne ttait au hi, malade d'une maladie qvi avail un trait prochain a la mort, quoiquelle ne soit morte que quelques mots apres" Several cases appear to have been decided upon this Ordonnance t the effect of which is well expressed in M> rlins "Repertoire" verlo ' "Mariage" sect. 19, par. 1, No. 3, p. 47, vol. viii. in quarto: " Le veritable, Tunique cos dappliquer TOrdonnance est lorsquun homme te marie dans un terns ou il se sent frappe de mort, on la violence du mal et Timpuissance des remedes luifait sentir que la vie eat prete d lui echapper." It seems, from this commentary upon the law, that the pnli nt must himself feel that he is dying, or that the violence of the disease, and the inefficacy of all rrine itln r Dr. Jamicson nor Mademoiselle Paquet thought so at least, until after the day of the marriage. Dr. Jamteson liimsrlf says: "From the beginning of his disease I expected that he would recover from his disease." " On the first, second, and third day I did not look upon the disease as a decidedly mortal one." " I never conveyed to Scott the idea that he was or might be in danger." And in another part of his deposition he says : " On the morning of the 17th, the Defendant, Miss Paquet, inquired of me as to the state of the late Mr. Scott. I informed her that he was in a dangerous condition, and she appeared surprised that the disease was at all connected with danger." Besides, this law is in restraint of natural liberty, and it must, therefore, be clear, beyond doubt, that it is applicable to the par- ticular case, before a Court of Justice can hold it to be of force and effect to avoid a marriage. VOL. L] CASES IN THE PEIVY COUNCIL. 561 The great question in the case, however, is, whether Mr. Scott J. C. was in a state of mind, memory, and understanding, to enable him 1867 lawfully to contract marriage. Soorr On the one hand, we have the evidence of Dr. Jamieson, who ~ r- "AQUKT. visited him first on the afternoon of the 15th of December, and found him suffering under erysipelatous inflammation in the face, arising, as it appears, from his having come in contact with a heated stove while dozing or sleeping in a chair. Strong aperients were administered, and at a later period of the afternoon the Doctor concluded that delirium tremens was approaching. At this time he quitted the house in which he resided with his sister, and proceeded to the house of the Respondent, Paquet, shewing signs of great excitement and irritability, with delusions, as he went along. At a later hour he was again visited by the Doctor, who remained with him during the greater part of the night. Saw him again the next morning, and left him about two in the afternoon, when, as he says, he was labouring under delirium tremens, developing itself by mental hallucinations. He then again left him in the house of the Eespondent for some hours, and returned in the evening ; and from this time until the morning of the 18th, it is asserted he was wholly incapacitated by this disease from doing any act whatever requiring the exercise of his faculties ; and in the night of that day, the 18th, he died. If Dr. Jamieson be correct as to the existence of delirium tremens, and the consequent incapacity of Mr. Scott, although he does not expressly declare that it was impossible he should have been com- petent to exercise his faculties in a rational manner either on the afternoon of the 15th, or during an hour or more on the 16th, it is certainly to be inferred from the whole of his evidence, taken together, that no such intervals of capacity could have existed, and that it was only during the time necessary to answer one or two questions, or some' other very short period of tranquillity, that he can be said to have been capable of exercising his reason and understanding. On the other hand, we have the testimony of at least three witnesses of unimpeached character, and having no interest what- ever in the perpetration of a fraud, or in the misrepresentation or y OASES IN THE PRIVT COUNCIL. [L. B. J.C. suppression of the truth, who depose to * tenet of acts done by i is~ deoaMed, which, if truly narrated and described, I>H'\ incontestaUy ^^, tliat Mr. Scott was during the space of an hour and mun -, within r - which the marriage was sol . unl the marriage contract prepared und T his in-t ructions and ex<-<-utl ly himself, in a JM rtrct state of capacity, memory, and int-llip-mM?. We may pass by the communication between Ancey, the Roman Catholic 1'riest, and Mr. Scott on the afternoon of the 15th, merely observ. the deceased upon this occasion expressed himself rationally while informing the Priest of his having had an altercation *ith his gist* T, that he was desirous that he should marry him to Made- moiselle Faquet, that he had sent to him for that purpose, and when told that a dispensation was necessary, he desired that a Bishop should be written to immediately in order that it might be obtained. The following day, the 16th, upon the arrival of the dispensation, the Priest proceeded again to the house of Mr. Scott, and found him, as he positively and distinctly swears, in perfect possession of his understanding; and here begins a series of acts on the part of the deceased, which, if really done, prove to demonstration a state of perfect mental competency and capacity. He received the Priest's explanation of the oath or engagement required, that his wife should be left to the free exercise of her religion, and that the children might be brought up in the Roman Catholic faith; he observed that at a former period (and in this state- ment he is confirmed by Mont. Pere Martin, the Priest), he was about to marry Mademoiselle Paquet, but objected to this engagement ou the ground that he was required to pledge himself that the children should be so brought up, and not merely that he would permit them to use their own free will as to their religion ; he gave the necessary information as to the names of his relatives, and the ages of his children, in order that the usual registration should be made ; he took the pen in his hand and wrote the name of one of his Parents, because the Priest was unable to spell it; he sent for a Notary and his Clerk ; he gave instructions for the marriage contract, informing the Notary that his wife was to be required to give up the commu- nanft ; de liens, and that in consideration of this renunciation he con- ferred upon her and her heirs all his immoveable or real estate, which he described as situate in the several parishes of St. Eustace, VOL. I] CASES IN THE PEIVY COUNCIL. 563 and St. Martin ; he gave also to his wife, but in trust only, in equal J. C. thirds, for two of his sisters, Anne Scott and Jane Scott, and his 1867 daughter by Paquet, Caroline Scott, a large sum of compensation SCOTT money to which he was entitled by reason of losses sustained in P A QCET the rebellion of 1837 ; and, besides disposing of the remainder of his property under this marriage contract, it is sworn upon the evidence of Archambaud, the Notary, that upon a suggestion that he should dispose of his property by Will, he himself declared that he had determined to do so by a marriage contract ; and the contract was drawn up and executed accordingly. All this, together with the celebration of the marriage itself, is confirmed by the independent testimony of M. Fere, a friend of the deceased residing at St. Eustache. It is impossible, unless these witnesses are guilty of deliberate perjury, that the deceased was at this time otherwise than in perfect possession of his mind, memory, and understanding, and of perfect capacity to contract a lawful marriage. It is true that, during this proceeding, upon a noise being heard from the agitation of the shutters by the wind, he is proved to have cried out, " They are coming ! they are coming !" If this were, as suggested by the Respondents, an expression uttered under an idea that the intelligence of the result of his election had arrived, it requires no comment. But if it were, as insisted by the Plaintiff, the manifestation of a delusion created by delirium tremens, it appears to have been dispelled, and to have ceased upon his being convinced, a few moments afterwards, that the noise was occasioned by the wind. "We think, therefore, on the whole, that whatever degree of suspicion may naturally arise from the very cogent and circum- stantial evidence of Dr. Jamieson, coupled with the testimony of the witnesses who spoke to the wildness and excitement of his demeanour during certain portions of the three days in question, that all this together is insufficient to outweigh the positive and distinct evidence of so many witnesses to the whole scene of the solemnization of the marriage, and the preparation and execution of the marriage contract, or to warrant us in setting aside the united decisions of the Superior Court and the Court of Queen's Bench in Lower Canada, by which the judgment in favour of the Respondents, and now under appeal, has been pronounced. VOL. I. 3 3 B CASES IN THE PRIVY COUNCIL. [L. B. J. c. Their Lordships will, therefore, humbly report to Her Majesty as their opinion that tin- ju-lgments of the Court of Queen's Bench of Lower Canada and of th- r < '"urt ooght to be aflirmed, and this appeal dismissed ; but under all the circumstances of the - ease, without costs of this appeal on either side. Solicitors for the Respondent : Wilde, Bees, Humphrey, < Wilde. Solicitors for the Appellant : Ashursi, Morris & Co. KM- i'F \ INDEX. PACE ACCOUNTS: See PATENT, 1, 5. ACTES OF STATES OF JERSEY of the 24tli June, 1851, relating to Wills of real estate Construction of Arts. 8 and 10. Monger v. Le Gallais 470 ACTION 1. To recover the difference between the original price bid at public auction, and the sum realized upon a re-sale, for the hull of a stranded vessel, sold by the Master and purchased by the Defendant, upon conditions of sale, which were appended to the memorandum of purchase, and signed after the sale by the Defendant's agent on his behalf; which conditions differed materially from those appended to the catalogue of sale, and which were the conditions read out at the time of sale. The Defendant paid the deposit upon the terms of the conditions of sale read at the auction, and took possession of the vessel, without having any formal transfer made to him. The vessel was laden with rice, and was soon afterwards, by order of the Board of Health, de- stroyed as a nuisance. The Defendant having declined to complete the purchase, the vendor resumed possession of the vessel, and re-sold it at a loss. The form of the action was by libel, according to the Roman-Dutch Law. The Defendant, in his answer, among other defences, denied that he had purchased under the conditions appended to the memo- randum of sale, and prayed the dismissal of the action with costs ; and in reconvention, for payment of the amount of the deposit, and damages he had sustained, to the amount of 1000, for loss of profits and advantages from the vessel, her tackle and implements. The judgment of the District Court was in favour of the Plaintiff, the Judge of that Court being of opinion, that the Defendant pur- chased on the conditions of sale appended to the memorandum of pur- chase, and that, according to those conditions, the Plaintiff had rightly resumed possession and re-sold the vessel. The Supreme Court on appeal reversed that judgment, and ordered judgment to be entered for the Defendant, being of opinion, that the Plaintiff having founded his claim upon an agreement which gave, among other things, a right of re-sale, with conditions different from those read at the auction, and, having in consequence repossessed himself of the vessel and re- sold her, had thereby deprived himself of the right to recover from the Defendant, and awarded the Defendant the damages claimed by his answer : Held, by the Judicial Committee, (1), that though the merits of the case were with the Plaintiff, neither the judgment of the District or Supreme Court could be sustained, as there was no other agreement between the parties than the one founded on the conditions read out in the auction room at the sale ; and that, the Plaintiff having sued 3 3 B 2 !- N upon a different contract, wa> '.*! to recover, and ought to hare been non-suited : u he abeence of any evidence of daman, the Defendant was not entitled Btfd hat although the act of the Plm hull of the ship and telling her was wrongful and entitled ti dant to bring an action of tn nut amount to a rcacbak contract. Page v. Couxtfjee Eduljre '.'. A.-ainst Speaker and Members of the Legislative AMCI. of / ;'r false imprisonment for contempt of that Assen/ Doyle v. Falconer .. .. .. .. .. .. NO 3. By Rink in- Company against their late Manager and Ca and misconduct in application of the Banking funds. The Bai< . 'idshaw .. .. .. .. -173 ACTK >N I.N ! . : : See BOUNDARIES. ADMIRALTY RKiM'LATlnXS: See SHIP AND SHI ,8, . ADVERSE POSSESSION : See COLONIAL LAW, 9, 10. AMUIuriTY IN DKF.DS: See BOUNDARIES. Ai'l'i'.A I. 1 . Sj)ccial leave to appeal granted, notwithstanding tL application had been made for such leave to the Court below : i: though the amount di-crevd was much under apixnlahlu value, the original demand being necessarily limit* jurisdiction of the Court in which the suit was originally instituted, the subject matter at issue exceeded in value the appealable- amount. Sltiltuuwmy Jagavera ; . v. Vencatasu- tt* 1 2. Sect. 23 of t t. c. 24, which limits the time for appealing from tiie Vice- Admiralty Courts abroad to six months, vesta, , by the same section, a discretion in the Judicial Committee to admit an appeal notwithstanding six months have elapsed. Circumstances show; re was no wilful laches in not lc . a petition of appeal in the Registry of the High Court of Admiralty i in the prescribed time, and that the delay arose from the parties waiting a decision on a pending appeal, which involved a similar ques- tion, held sufficient for the exercise of the discretion vested in the Judicial Committee to admit an appeal under that section, upon pay- ment of the costs of the application, and giving security for further costs. Casanova v. The Queen .. .. .. .. .. 115 3. Several actions, in the nature of Petitions of Right, were brought against the Crown in Victoria under the Colonial Act, 28 Viet. , and judgments obtained against the Crown ; but the Supreme Court of that Colony refused leave to appeal to in some cases, because the amount recovered was under 500, the appealable value prescribed by the Order in Council of the 9th of June, 1860, and in other cases, except upon terms of the Attorney-General in the Colony paying the amount of the verdicts with costs. In giving leave to appeal, upon special petition for that purpose, the Judicial Committee refused to sanction the terms imposed by the Supreme Court on the Attorney-General of finding security for costs of the appeals, and admitted the appeals without security being given. Appeals directed to be consolidated and heard as one case. In re The Attorney-General of Victoria .. .. .. .. .. 147 4. By an order of the Supreme Court of Victoria leave to appeal to Her Majesty in Council, pursuant to the Colonial Ad, 1"> Viet. c. 10, was allowed on condition of the Appellant giving security within INDEX. 5C7 PAGE three months for costs of appeal. The Appellant at first offered to deposit money to the amount of the security required, but afterwards a security Bond was approved by the Master of the Court, and, with- out objection .by the Defendants, filed as of record ; but in consequence of objections afterwards taken by the Defendants' Solicitors to the competency of the proposed sureties, the Bond was not filed within three months. Upon a motion by the Defendants to set aside the leave to appeal upon that ground, the Supreme Court made an Order revoking the leave given. In such circumstances their Lordships, upon petition, gave special leave to appeal, on security being given for costs in England, with liberty for the Petitioners to apply to the Court at Victoria to cancel the security Bond. Webster v. Power .. .. .. .. 150 5. Leave to adduce fresh evidence upon appeal refused : it appear- ing that the matters to which such evidence referred regarded, first, the loss of insurance by reason of the deviation of a vessel from her course in effecting the salvage services, which fact was sufficiently be- fore the Court below to enable it to apportion the amount of salvage.; and, secondly, that the further evidence went to meet a charge affecting character, which might have been met by an application to the Court below : their Lordships being of opinion that, if requisite, sufficient opportunity would be afforded the parties to produce such evidence at the hearing of the appeal. The " Scindia." .. .. .. .. 241 6. Leave to appeal from an Order of the Supreme Court of Civil Justice of British Guiana, committing the publisher of a local journal to prison for six months for an alleged contempt of Court, in publish- ing in such journal comments on the administration of justice by that Court, with liberty to the Judges of the Supreme Court to object to the competency of such appeal at the hearing. In re McDermott .. 260 7. Permission given to appeal in forma pauper is in a case in which the Appellant was not heard in the Court below and refused leave to appeal to Her Majesty in Council, the decision being in fact ex parle. (.ieorgev. The Queen " .. .. .. .. .. .. .. 389 8. No appeal is given by the Act, 3 & 4 Viet. c. 86, either to the Arches Court, or thence to her Majesty in Council, from the decision of the Commissioners on the regularity or irregularity of the proceed- ings. Simpson v. Flamank .. .. .. .. .. .. 463 9. Admitted in criminal cases from the Colonies. Beg. v. Sertrand, Levien v. Keg. .. .. .. .. .. .. .. 520,536 APPEAL, REHEARING OF: -See PRACTICE, 4. APPEALABLE VALUE : See APPEAL, 1, 3. ASSIGNEE OF MORTGAGEE : See MORTGAGE. ATTESTATION CLAUSE : See COLONIAL LAW, 8. ATTORNEY, Suspension for Contempt of Court: See CONTEMPT OF COURT, 1. , Right to recover Fees in his own Cause : See COLONIAL LAW, 8. ATTORNEY-GENERAL FOR VICTORIA, allowed to appeal to the Queen in Council without giving security for costs. Jn re The Attor- ney-General of Victoria .. .. .. 1^7 AUCTION SALE : See ACTION, 1. AUSTRALIA : -See COLONIAL LAW, 1 ; CROWS GRANTS. 568 INDEX. Y : SM COLOVUL LAW, 6 ; INSOLVEV ispeusion for Contempt of Court: 8e COSTWOT or UT, 1. BAST. MM >: > ( OMB M. I.v BILL F LAI UNO -1. A Bill ofUvi cry of goods to order and assigns, is a negotiable instrument, which by indorsement and losses the :i the goods to the indorsee, subject only lit of the unpaid vendor to stop them in re may deprive the v -rsing the Bill of lading for valuable consideration, alti goods are not paid for; even if Bills have been given which are certain to be dis- honoured, provided the indorsee for value has acted bond fide and >ut notice. A firm (J/. <(. /'.) in J-'nmct, sold, through their agent in England, to : firm was drawn up and admitted by all the partners. The new firm continued to trade, up to the jierioa of its insolvency, upon the same footing and with the same books as the old firm no di- ma payments, or balances, or between the debts or assets of new, or what was the old firm. / to deal '.lil firm. Ji. /'. .1 II. having becoroc* insoh .( Co., creditors to a Urge amount, proved against the estate of the new firm. /'. it //., also creditors of the new firm, proved against their estate, and sought to expunge the proof of Around that their debt having accrued previous to .t w partners being taki-u in, was due from the old, and not from the new firm : -.- Judicial Committee (affirming the judgment of the Supreme Court), that there was sufficient proof in the deaUngs and .-actions of the several parties to shew that the new firm on its formation adopted the liabilities of the old firm, and that F. 8. & Co. had consented to accept the liability of the new firm, and to discharge the old firm, their original debtors. The Act, 5 ot 17 (the principal Insolvent Act of the Colony of Victoria), sect. 39, enacts, " that any creditor who shall have or hold any. .security or Urn upon any part of the insoh estate, shall, when he is the \ >r, be obliged upon oath, in the affidavit accompanying the Petition ; and when he is not the petition;: . in the affidavit produced by him at the time of pn> 't, to put a value upon such security, so far as his debt may be thereby covered, and to deduct such value from the debt proved by lum, and to give his vote in all matters respecting the insolvent estate as creditor only for the balance, &c. And in case any creditor shall hold .any security or lien for jKiyment of his debt, &c., upon any part of the said estate, the amount or value of such security or lien shall be deducted from his debt, and he shall only be ranked for, or receive payment of, or a dividend for, the balance after such deduction :'' Jl> /'/, that this enactment does not destroy the distinction between the joint and separate estate of an insolvent, so as to compel a cre- ditor so holding a mortgage security on the separate estate, to estimate and deduct it> value before he can be allowed to prove against the joint estate. The Kn-lish law of Bankruptcy, which allows a joint creditor, though holding a security on the separate estate, to prove against the joint estate wither/ up his security, prevails in the colony of 'oria, and is not alter.-d or varied by'tl. .t Acts of the Colony. Itolfc and The Bank of Australasia v. Flower .. .. 27 ^cording to the law of New Brunswick, freehold lands of debtor, if the personal estate is exhausted, may be sold under a/i. fa. Wickham v. The \ew Bruntwick and Canada llailway Company .. Ci 4. By Art. 1314 of the Code Civil, the law prevailing in Mauritius, it is provided that " Let maitres et Ies Commettanis [sont responsoJfes] du dommage cause par leurs domestiques et proposes dans Ies /auctions auxqueJles i7s Ies ont employes :" INDEX. 571 PAGE Held, that in order to make the " Commettant " responsible for damage occasioned by the negligence of the " Frepose," it is necessary to establish that the " Prepose" was acting "sous les ordres, sous la direction et la surveillance du Commtttant." " Prepose? in Art. 1384, means a person who stands in the same relation to the " Commettant " as " Domestique " does to " Maitre " namely, a person whom the " Commettant " has instructed to perform certain things on his behalf. A. hired certain Indians, who were the heads of gangs of labourers, to clear a piece of land of weeds and brushwood, at a job price, to bo paid to their gangs. Through the negligence of the persons employed, the sparks of fire kindled on A.'s land set fire to and burnt down a house in the immediate neighbourhood belonging to B. It was proved in evidence that A. interfered with the work, and directed the Indians where to work : Held, affirming the judgment of the Supreme Court at Mattritius, that A. was the " Commettant " and the labourers " Proposes" within the meaning of the Art. 1384 of the Code Civil, and that as the fire was occasioned by the men employed by A. he was responsible for their negligence, and liable to B. for the damage sustained by the fire. Serandat v. Sa'isse .. .. .. .. .. .. .. 152 5. The Code Civil of France, which is in force in the Island of Mauritius, Liv. III. Ch. IV. tit. i. " Des successions irreyulieres," Art. 705, provides as follows : " La succession de Venfant naturel de'cede sans posterite est devalue au pere ou a la mere qui Ta reconnu ; ou par moitie a tons les deux, s'il a etc reconnu par Fun et par Tautre :" and Art. 76 provides, " En cas de prede'ces des pere et mere de Venfant naturel, les biens qu'il en ava.it re$us passent aux freres ou scntrs legitimes, s'ils se retrouvent en nature dans la succession : les actions en reprise, s'il en existc, ou le prix de ces biens alie'nes, s'il est encore du, retournent egalement aux freres et sceurs leyitimes. Tous lesautres biens passent aux freres et sceurs naturels, ou a leurs descendants :" field, that the word " descendants " in Art. 766, is not limited to legitimate descendants, so as to preclude the natural children of a natural brother succeeding to their natural uncle's property : Held, further, that there is no restriction with respect to the word " descendants" in Art. 766 : that natural children are "descendants" 1 within the meaning of Arts. 765 and 766, which constitute a special law for determining the succession of natural children dying without posterity; and that "posterite" and "descendant*" in those Articles are convertible terms. B., an illegitimate child duly acknowledged, survived his parents, and died domiciled in the Island of Mauritius, of which he was a native, intestate, leaving self-acquired property. He had no legitimate relations, but had two nieces, illegitimate daughters of an only ille- gitimate brother, who predeceased him, by whom they were duly acknowledged, as also by B. One of the nieces died shortly after B. t having previously constituted her sister Le'gataire universelle. The Government claimed the succession of B. : Held, that the surviving niece was entitled to succeed to B's t>ro- perty in preference to the claim of the Government on the ground of bastardy. Her Majesty's Procureur and Advocate-General v. Bruneau. .. .. .. .. .. .. .. .. .. 169 6. It is no answer to the rule, that persons standing in the situation of Trustees or Agents must account to their Cvstui y the Judicial Committee on appeal, overruling th t of the Court of Queen's Bench (on the appeal side) in Lower Canada, and the authorities relied on by that Court for a contrary rule. Qugyv.Sroum .. .. .. .. ill 8. Article 8 of the Acte of the States of Jersey, of the 24th of June, 1851, confirmed by the Order of Her Majesty in Council of the 7th of August, 1851, containing the law relating to Wills, provides as lows : " Pour que les leg* d'immeubles contemn dam un Testament soient valables, iV faitt que It Testateur, en presence des deux temoins, nit oppose so. signature a la fin, ou ait reconnu sa signature ainti appotte, et q tie' let deux temoins present en meme terns aient alar* oppose' leurs tignature* au Testament, en presence du Testateur. Si le Testament n'est pas olographe, la lecture en sera faite en presence du Testateur et de* deux temoins. P< I'estament olographe Kit valable, f attestation des temoins devra et Article 10 declares : M Le* leg* d' immeubUt, fait* dan* Us quarante * jour* qui ont precede" la mart du Testateur, teront nuls, a moint que la mart n'orrtVe pur catfoi' To a holograph Will, disposing of both real and personal estate, dated and signed by the Testator in the presence of two witnesses, an attestation clause was appended, in the following terms : " Le present Testament olographe a te signe" par le Testateur en notre prrsenc> nous y avons oppose notre signature, comme temoins, en presence du dit Testateur, et en presence Tun de Fautre, le dit jour :" Held, affirming the judgments of the Inferior, as well as the Superior Number of the Royal Court of Jersey, that the words " le dit jour? in the attestation clause, referred sufficiently to the date contained in the Will to comply with the requisition of the 8th Article ; and that the Will being holograph was, notwithstanding the provisions of Ar- ticle 10 of the Acte 1851, a valid and efficient instrument. Maugcr \. LfGattais 470 9. Action en lornagc to ascertain the boundary line between the contiguous properties of the Plaintiff and Defendant, which property ' was formerly one Lot, and described as containing between 140 or 150 acres. This was afterwards sold in two Lots. The Plaintiff's, the eastern portion, was described in the deeds as containing " 90 acres, more or less." The Defendant's, the western portion, " about fifty acres ;" but the descriptions in the deeds did not agree as to the way the line of boundary was to run. The effect of a surveyor's report, which the Court in Canada homologated, was to make a boundary line, by which the Defendant got sixty-one acres, and reduced the Plaintiff's to eighty-two acres. Upon appeal, held (reversing the decrees of the Superior Court and the Court of Queen's Bench), that INDEX. PACK those Courts were wrong in their construction of the deeds and evidence as to the boundaries, the rule being that, if in a deed con- veying land the description of the land intended to be conveyed is couched in such ambiguous terms that it is very doubtful what was intended to be the boundaries of the laud, and the language of the description equally admits of two different constructions, the one making the quantity conveyed agree with the quantity mentioned in the deed, and the other making the quantity altogether different, the former construction must prevail. Held, further, that the case differed from a conveyance of a certain ascertained piece of land accurately described by its boundaries on all sides, with a statement that it contained so many acres, " or there- abouts," when, if the quantity was inaccurately stated, it did not affect the transaction. By the law of Lower Canada the term of prescription is thirty years. To sustain a plea of prescription, the evidence must shew peaceable uninterrupted possession and ownership for upwards of thirty years. Herrick v. Sixly 436 10. Action by Seigneur to recover possession of a piece of ungranted land forming part of his Seigneurie, against a party claiming under an informal deed from one who had no title deed, but who, with the Defendant, had been in undisturbed possession for thirty years : Held (affirming the judgment of the Court of Queen's Bench for Lower Canada), that a plea of prescription of thirty years' possession was a bar to the action, as : first, that it made no difference that during the time of % such adverse possession the Seigneur had, under the Statute, 6 Geo. 4, c. 59, for the extinction of Feudal and Seignioral rights in the province of Lower Canada, surrendered the Seigneurie to the Crown for the purpose of commuting the tenure into free and common socage, the issuing of the Letters Patent regranting the same being uno flatu with the surrender to the Crown, and that, both by the ancient French law in force in Lower Canada as by the English law, prescription ran in favour of a party in actual possession for thirty years ; and, secondly, that such adverse possession enured in favour of a party deriving title to the land through his predecessor in pos- session : Held, further, that such junction of possession did not require a title, in itself trandatif de proprie'te, from one possessor to the other ; but that any kind of informal writing, sous seing privt, supported by verbal evidence, was sufficient to establish the transfer. Macdonuld v. Lambe .. .. .. .. .. .. .. .. .. 539 11. Art. 6 of the Ordonnance of Louis XIII. (26th November, 1639), in force in Lower Canada, is in these terms: " Voidons que la meme peine (de la privation des successions) ait lieu contre les ertfans fjui sont nes defemmes que lesperes out entretenues, et qu'tts epousent lorsqu'ils sont a Vextremite de la vie :" Held, first, that as the above article of the Ordonnance was a restrict of natural liberty and penal in its nature, it was to be strictly interpreted, and only when the fact of a party being in extremis at the time of the solemnization of the marriage was clear and beyond doubt could it be applied. Second, that although death had taken place two days after a marriage had been celebrated, such article of the Ordonnance did not affect the validity of the marriage, unless the party was at the time sensible that he was in his last illness, and in immediate danger of dying. Suit for nullity of marriage, and to set aside a marriage contract, on the ground that at the time of its celebration the husband was delirious and of unsound mind, arising from an attack of delirium tremens, :,:i INDEX. from which disorder he died two days afterwards. The evident- f of one of his medical attendants being to the effect that be was unconscious, and, in bis opinion, from the nature of the disease, incamble at any time of contract ing such marriage : , on a general review of the evidence, to be rebutted, especially by the conduct of the same medical witness in speaking of the pro- bability of deceased's recovery ; and by the evidence < -at, ary, and witnesses at the marriage, of his capacity; and the judgment* of the Courts in Lower Canada sustained. '. .......... COLONIAL I.lJilSl.ATIVi: IK- 1 SK MF i.ojps- l.uive Assembly oi I does not possess the power of punish: a contempt, though committed in its presence and by one of Members; such authority does not belong to a Colonial House of Assembly by analogy to the lex ct which is inherent in the two Houses of to a Court of Justice, which is a Court of Record ; a Colonial House of Assembly having unjudicial functions. refore, a Member of the Ix>wer House of AssenYll Dominica, who had been taken into custody by the Serjeant-at-Arms, and committed to the common ^aol, l>y virtue of the Speaker's war- rants, for a contempt commit' .ice of the Assembly, brought an action for trespass and false imprisonment, and obtained damages : it was held by the Judicial Committee (aflinnin<: the judgment of the Court of Common Pleas of the IsLi mirrer to pleas of justifi- cation, that the House of Assembly had no such power to commit and punish as had been assumed, and that the Sneaker and Members were liable. The cases of Kielley v. Carton (4 Moore's P. C. Cases, 63), and Fenton v. Hampton (11 Moore's P. C. Cases, 347) decide cone that Legislative Assemblies in the British Colonies have, in the absence of express grant, no |x>wer to adjudicate upon, or punish for, contempts when committed beyond their walls. Doyle v. Falconer .. 328 COMMKTTANT AND I'KKI'usf. DKFlNiTK ;. KM: Sec COLONIAL LAW, 4. COMPULSORY PILOTAGE: See PIL..T. CONDITIONS OF SALE, VARIATION* OF: See ACTION, 1. CONSECRATION OF CHURCH : -See ECCLESIASTICAL LAW, 1. rn.NSHJNF.I-: AND MORTGAGEE: See Li CONSOLIDATION OF APPEALS? See APPEAL, 3. CONSTITUTION OF THE ROYAL COURT OF JERSEY By the constitution and law of the Island of Jersey, the Royal Court is com- posed of a Bailiff and twelve Jurats, and upon the voluntary resigna- tion of a Jurat it is the prerogative of the Crown to admit such resignation, and to authorize a new election to fill up the vacancy so occasioned. Secus, on a vacancy occurring by the death of a Jurat, when the Royal Court have power alone to order a new election. The States of Jersey passed two Actes accepting the resignation of two Jurats on the ground of their length of service and inability to continue to perform the duties of their office. These Actes were ob- jected to by certain landowners and others in the Island, who peti- tioned the Crown against confirming the same, and to suspend the filling up of those offices until a reform, long in contemplation, of the Royal Court had taken place ; but, although it was considered by the INDEX. 575 PAGE Lords of the Committee that a complete change in the constitution of the Royal Court was necessary, yet, as the suspension of new elections of Jurats would not effect any improvements in the constitution of that Court, Her Majesty was advised to permit such resignations, coupled with directions that the same privileges and distinctions that the retiring Jurats had enjoyed as Jurats should continue to them during their lives, and ordering new elections to supply the place of such vacancies. In the matter of the Jersey Jurats .. .. .. 94 CONSTRUCTION Of Sec. 25 of the 15 & 16 Viet. c. 83, relating to exten- sion of English Letters Patent, where a patent has previously been taken out in a foreign country for a similar invention. In re Poolers Patent 514 See BILL OF LADING, 2 ; BOUNDARIES ; CODE CIVIL ; COLOKIAL LAW, 5 ; DEBENTURE BOND. CONTEMPT OF COURT 1. An Order suspending an Attorney and Barrister of the Supreme Court of Nova Scotia from practising in that Court, for having addressed a letter to the Chief Justice, reflecting on the Judges and the administration of justice generally in the Court, discharged by the Judicial Committee, as it substituted a penalty and mode of punishment which was not the appropriate and fitting punish- ment for the offence. The letter, though a contempt of Court, and punishable by fine and imprisonment, having been written by a Practitioner in his individual and private capacity as a suitor, in respect of a supposed grievance as suitor, of an injury done to him as such suitor, and having no con- nection whatever with his professional character, or anything done by him professionally, either as an Attorney or Barrister, it was not com- petent for the Supreme Court to go further than award to the offence the customary punishment for contempt of Court ; or to inflict a per- fessional punishment of indefinite suspension for an act not done professionally, and which, per sc, did not render the party committing it unfit to remain a Practitioner of the Court. In re Wallace .. 283 2. Committal of publisher of Newspaper for alleged contempt of Court in commenting on the administration of justice in the Supreme Court of British Guiana. In re McDermott .. .. .. 260 CONTRACT, RESCISSION OF : See ACTION ; VENDOR AND PURCHASER. COSTS 1. Where there had been delay in lodging petition of appeal within the prescribed time, and the right of appeal gone, leave was given to appeal on payment of costs. Casanova v. The Queen .. 115 2. Leave given to the Attorney-General of Victoria to appeal with- out giving security for costs. In re Tin- Attarney-General of Victoria 147 3. Security for costs in a cause of forfeiture and penalties for breach of revenue laws, not necessary, as far as regards penalties. George v. The Queen .. .. 389 4. No appeal for costs alone will be entertained. Wilson v. The Queen 405 5. Attorney in Lower Canatla acting in his own cause, and on his own behalf, entitled to fees as Attorney on record. Guyy v. Brown 411 6. Costs on reversal of decree of Court below in a cause of damage; both parties being held to blame. The "Agra " and The "Elizabeth Jenkins" 501 CRIMINAL SENTENCE OF COURTS IN THE COLONIES, APPEALS FROM : See APPEAL, 9 ; PREROGATIVE. INDEX. :: AVi IX-MOS granted by the Goreraor of Soul* Ami ior powers conferred on him by the Colot. sec. ^ulating the tale and other disposal of watte lands belonging to the Crown, sealed wit c seal of 1 ut iit enrolled or recorded in any Court, are Records ; and, though bad on the fact larger qua: iud than allowed by the Act, cannot be annulloi quashed by a writ < Such writ is a pren H Inch must be founded on a Record, and cam of the Supreme ' South Australia issue out of that ('< ;horizcd possession of lands : Crown in the Coloi. formation in Chancery, or Writ aion. Tht Qurrn \. Ilityhe* .. .. .. ( i:iWN I. A M>< P. ALIA: &e COLONIAL LA Clli'WX, ri:Ki:n<;ATIV: .ITDTIOH or TBS ROTAL -f.f ; PREBOGA i TnMS- oKI'INV - c HABBOCB DUES ; REVEXUK. DAMAGES 1. Exemption of owners having a licensed Pilot on board from damage-. tlasquez" L'. Win ;- both vessels were to blame in causing a collision damages were directed to be equally divided. The "Ayra " ani . be th Jenkins " 501 See ACTION ; COLONIAL LAW, 4. DAMAGES AND COSTS 1. Awarded by appellate Court on reversal of sentence of condemnation and forfeiture for alleged infraction of Sierra Leone Customs Ordinance*. !;<( t\. Tl V"" 2. Where there was no probabHis causa for seizure of a Foreign Teasel for an alleged infraction of the Mnve Trade Act, 5 Geo. 4, c. 1 upon appeal damages and costs, which had been refused by the Court below, awarded. The " Hicanlv .Sc/t//Wc " 3. When there was probable cause for seizure the Vice-Admiralty Court refused to certify for damages and costs. Wilson v. The Queen DATE OF WILL : See COLONIAL LAW, 7. hKr.KNTl'RE BOND The St. A. ,t ^.incorporated by a local Act, being also a land coinj>any, transterred by ai: together with the undertaking, all its j.ro]<-rty, lands, rights, and ap- purtenances to the N. B. & ' y, also inc>rpor.. such agreement being confirmed by a private Act of the Imperial Parlianv The N. B. & C. Ruilivay Company having borrowed money, issued Debentures to secure the same; these were termed Mortgage De- bentures, the principal and interest thereon being secured on the undertaking, and all moneys to arise from the sale of the lands of Company, all future calls on Shareholders, and all tolls and sums of money which should become due with the plant and rolling-stock, and with power of entry and possession of the same, in failure by the Company of payment of principal and interest as therein specified, with a proviso that nothing therein contained should be held to limit the power of sale or appropriation by the company of any of the lands of the Company, nor constitute a charge on the same. These bonds were not registered : //'/'/, by the Judicial Committee, first, that st:ch Debentures did not constitute a charge in the nature of an equitabh Kortgage oil the INDEX. 577 PAGE lands of the Company, so as to give the holders of such Debentures a right to restrain the sale of the lands by Judgment creditors of the Company, or any title to the proceeds of the lands when sold. Secondly, that as Judgment creditors under an execution take the precise interest, and no more, which the debtor possesses in the pro- perty seized, the sale being a sale by the law, and not by the Com- pany, such Judgment creditors took the lands subject to any incum- brances, legal or equitable, that they were subject to in the hands of the Company. Wickham v. The New Brunsunck and Canada Kail- way Company .. .. .. .. .. .. .. .. C4 DEBTOR AND CREDITOR : See INSOLVENCY. DEBTS, LIABILITY OF NEW FIRM FOR DEBTS OF OLD FIRM : See INSOLVENCY, 1. DECISIONS, OBSERVED UPON, OVERRULED, &c. 1. THE QUKEN v. CLARKE (7 Moore's P. C. Cases, 77), commented on and explained. Tlie Queen v. Hughes .. .. .. .. .. .. .. 81 2. The case of THE QUEEN v. SCAIFE (17 Q. B. Rep. 238), in which a new trial was granted, after conviction for Felony by the Court of Queen's Bench, examined and not followed. Heg. v. Bertrand .. .. .. .. .. .. .. .. .. 520 DERELICT : See SALVAGE. DESCENDANTS construction used in Articles 765 and 766 in Code Civil ; held to include natural children. Her Majesty's Procnreur v. Bruneau .. .. .. .. .. .. .. .. .. I';'.' DEPOSITIONS OF WITNESSES at former trial for Felony read over to witnesses, and improperly received as evidence at fresh trial. Reg. v. Bertrand 520 DEVIATION OF SHIFS COURSE in performing salvage services ren- dering policies on salving vessels void, effect of, in estimating salvage reward. The " Scindia." The " Sir lialph Abercrombie " .. "241,454 DOMINICA Power of the Legislative Assembly to commit a Member of that House for contempt. Doyle v. Falconer .. .. .. .. 328 DUTCH REFORMED CHURCH, constitution of, under Cape of Good Hope Ordinances of 1843 and 1847. Murray v. Buryers .. .. 362 ECCLESIASTICAL LAW 1. />., the tenant and occupier of the Manor- house in the parish of TT., instituted a suit in the Chancery Court of York against P., the Incumbent and perpetual Curate, for perturba- tion of a pew, held by L. as appurtenant to the Manor-house, and occupied by him therewith for nearly forty years. P., the Incum- bent, admitted the destruction of the pew by his orders and direction, but pleaded first, to the jurisdiction of the Court, on the ground that the Church was not in law a Church, ne-ver having been re-consecrated since its general repair in 1825 ; and, secondly, that the permissive occupation of the pew was not sufficient to entitle L. to sue: Held, by the Judicial Committee, First, that, it appearing from the evidence, that the Church of W. having been repaired and rebuilt under a Faculty, upon its old founda- tion, the Tower and eastern wall and windows never having been re- moved, and some of the Offices of the Church performed during tin- repairs, it had never ceased to be a Parish Church so as to require rc- consecration, but remained subject to the authority of the Diocesan ; and that the judgment of the Court below overruling the protest to the jurisdiction was ri^ht : and, Secondly, that as a i ew being in the Chancel may legally belong to 578 INDEX. respect of the ownership of a house, the title by occupation pew WM rightly pleaded, and, if proved, would entitle L. to If a Church be rebuilt on the old lines of foundation eluding within it the aune originally consecrated ground and no more, the EOTlfffMtir* 1 lw does not require t .urch should l> consecrated. Parker \. Leach .. 2. The Dutch Reformed Church in ;# of Good Hope ! a voluntary society, constituted and subsisting by inn: agreement The regulation of its Ecclesiastical affaire depends upon contract; and the authority of it* governing Bodies is derived wholly from the admission and agreement of the members, Ecclesiastical anil lay, which c . ety. This contract or agree- ment is embodied in certain laws and regulations, which were settle! ( >rdinance No. 7, in 1843 ; and subsequently altered, in 1847, by virtue of authority contained in the Ordinance of 1843. By Article 187 of the Ordinance of 1843, the Synod or General Assembly wa organized, and made the sole and exclusive Tribunal fur the trinl of charges of false doctrine against Ministers. By one of the alterations made in 1847, the jurisdiction and authority thus given to the Synod as a Court of first instance was transferred to the Presbytery, with an appeal to the Synod ; with liberty, where a case which concerns the ' welfare of the Church in general had been decided in the Superior Court, and, being capable of appeal, no appeal had been br the Synod to take cognizance of it; though incapable of exercising or an original or primary jurisdiction. So Held by the Judicial Committee, on the construction of the Ordinances of 1843 and 1" and the Laws and Regulations for the direction of the Dutch formed Church appended thereto, upon an appeal from a sentence of the Supreme Court of the Cape of Good Hope, in a case where a suit had been brought in that Court against the Members composing a Sy nodical Commission, to reverse and annul a sentence of suspension of a Minister of that Church pronounced by the Synod : Sftnblf, that since the alteration made by the Ordinance of 1847, the Synod has no discretionary power of assuming primary jurisdic- tion in a charge of false doctrine against a Minister ; such charge must be made and determined in the first instance by the Presbytery. Murray v. liurgen .. .. .. .. .. .. .. 362 ELECTION OF JURATS : See CONSTITUTION OF THK ROYAL COUBT OF JERSEY. EQUITABLE MORTGAGE : See DEBENTURE BOND. EVIDENCE 1. The burthen of proving that goods are not liable to Custom duties lies on the party claiming exemption, llolet v. The Queen ...... *.. .. .. ...... 198 J. What is necessary to prove a charge of fraudulent transfer in contemplation of Insolvency. Nunes v. Carter .. .. .. 342 3. Admission of fresh evidence on appeal refused. The " Scindia " 241 4. A foreign vessel was seized in an English harbour under the Slave Trade Act, 5 Geo. 4, c. 113, and proceeded against under that Act :Hetd, that rule of evidence in Statute, 5 & 6 Will. 4, c. GO, could not be admitted. Presumptive evidence of vessel being engaged in the Slave Trade. The " Jiicardo Schmidt " ...... 268 5. A Prisoner was tried by the Court in Xew South Wdlet for Felony, the jury, not agreeing, were discharged, and a fresh trial had. On the second trial, at the same sittings, before another jury, some of INDEX. 579 PAGE the witnesses having been re-sworn, the evidence given by them at the first trial was read over to them from the Judge's notes, liberty being given both to the prosecution and to the Prisoner to examine and cross-examine : Held, that the course adopted by the Judge at the fresh trial was irregular, and could not be cured even by the con- sent of the prisoner. Meg. v. Bertrand .. .. .. .. 520 EXTENSION OF TERMS OP LETTERS PATENT : See PATENT. FALSE DOCTRINE Proceedings against Minister of the Dutch Re- formed Church in the Cape of Good Hope on charges of false doctrine. Murray v. Burgers .. .. .. .. .. .. .. 362 FEES ALLOWED AN ATTORNEY in Lower Canada, acting in his own cause as Attorney on Record. Gugy v. Brown .. .. .. 411 FELONY Xo new trial from conviction lies. Beg. v. Bertrand .. 520 FIEF, action to recover part of ungranted land of: See COLONIAL LAW, 10. FIERI FACIAS According to the law of New Brunswick, freehold lands of debtor, if the personal estate is exhausted, may be sold under &fi.fa. Wickham v. The New Brunswick and Canada Railway .. 64 FIRE, LIABILITY OF MASTER FOR NEGLIGENCE OF SER- VANT : See COLONIAL LAW, 4. FOREIGN LAW : -See COLONIAL LAW, passim. FOREIGN PATENT: -See PATENT, 5. FORMA PAUPERIS, appeal in : See APPEAL, 7. FRAUDULENT POSSESSION : See BILL OF LADING, 1. FRAUDULENT PREFERENCE : See INSOLVENCY. FRENCH LAW : See COLONIAL LAW, 4, 5, 7, 9, 10, 11 . HARBOUR DUES Sentence of the Vice-Admiralty Court of Sierra Leone, condemning goods and boats seized for breach of the Customs Ordinances of the Colony, reversed, with damages and costs : it being proved that the vessel from which the goods were unshipped, though off the harbour of Freetown, was not within three miles (the limit of jurisdiction) from the shore at the time of the unloading, and conse- quently not liable to the harbour dues payable under the Customs Ordinances. Bolet v. The Queen .. .. .. .. 198 HOLOGRAPH WILL : See COLONIAL LAW, 8. ILLEGITIMATE NIECE : See COLONIAL LAW, 5. INJUNCTION : See MORTGAGE. INSOLVENCY 1. R., .F.,and S., partners in business, and dealing with F., S., & Co., took T. and S., clerks in their employment, into part- nership with them. The partnership was constituted by deea, to continue for throe years, and a balance-sheet shewing the liabilities and assets of the existing firm was drawn up and admitted by all the partners. The new firm continued to trade, up to the period of ita insolvency, upon the same footing and with the same books as the old firm no distinction being made in their payments, or balances, or between the debts or assets of the new, or what was the old firm* F., S., & Co., continued to deal with the new as they had done with the old firm. E., F., and R. having become insolvent, F., S. t & Co^ creditors to a large amount, proved against the estate of the new firm. VOL. I. 3 3 C am Jt and fl., alto creditor* of the new firm, proved against their estate : and sought to expunge the proof o: their debt having accrued pn- . new (rtnen being taker WM doe from the old, and not from the new fir: . by the Judicial Committee (affirming the judgment of the Supreme Court), that there wa* sufficient proof in the dealings and transactions of the several parties, to shew that the new firm on its formation adopted the liabilities of the old firm, and that /'., ,S., { had consented to accept the liability of the new firm, and to discharge the old firm, their original debtors. I 1 Insolvent Act of the Colony of Victoria), sec. 39, enacts, " that an;. who shall have, hold, any security or lien uim any part of the insolvent estate, shall, when he is t :or, be obliged upon oath, in the affidavit accompaiu :iti>n; and win i the petit i ing creditor, iu the affidavit produced by him at the time of proving his debt, to put a value upon such security, so far as his debt may be reby covered, and to deduct such value from the debt proved by him, and to give his vote in all matters respe< ..HI! vent estate as creditor only for the balance, &c. And in case any creditor shall bold any security or lien for payment of his debt, & curity, prevails in the Colony of 'oria, and is not altered or varied b vent Acts of that Colony. Rolf e and Ttte Bank (/Australasia v. Flower it J. The Jamaica Insolvent Act, 11 Viet. c. 28, s. 67, provides that if any person in contemplation of insolvency shall transfer any of his estate to any Creditor for the benefit of such Creditor, such transfer shall be deemed fraudulent and void against the Official Assignee : provided always, that no such transfer shall be so deemed fraudulent and void unless made within six months be fore a declaration of insolvency : /A/-/, that a transfer of property made by a party in insolvent circumstances within a period of six months before a declaration of insolvency, was absolutely void, although there was no evidence of any fraudulent preference. Nune* v. Carter .. .. .. .. 312 INSURANCE OF VESSEL To be taken into account in Salvage service when salving vessel deviates from her course : See SALVAGE .. IRREGULAR SUCCESSION: See COLONIAL LAW, 5. JAMAICA INSOLVENT ACT 11 . wtraction of: See INSOLVENCY. KY : See CONSTITUTION OF THE ROYAL COUBT OF ; COLONIAL LAW, 8. JolX^ ESTATE : See INSOLVENCY, 1. JOINT NEGLIGENCE OF PILOT, MASTER, AND CREW. See TILOT. JUDGMENT CREDITOR : See DEBENTUBE BOND. INDEX. 581 PAGE JURATS : See CONSTITUTION OF THE ROYAL COUBT OF JERSEY. JURISDICTION OF THE QUEEN IN COUNCIL, to entertain appeals from sentences of Colonial Courts in criminal matters. Beg. v. Bertrand .. .. .. .. .. .. .. .. ' .. 520 LEAKAGE OF CARGO: -See BILL OF LADING, 2. LEASES UNDER COLONIAL ACT, 21 Viet. No. 5, sec. 13: See CBOWN GRANT. LEAVE AND LICENSE: See PLEADING, 1. LEAVE TO APPEAL : See APPEAL, 1, 2, 3, 4, 6. LETTERS OF REQUEST :' See PLEADING, 2. LETTERS PATENT : See PATENT, 1. LICENSES : See PATENT, 1. LIEN The right of a Consignee of a West India Estate gives him a lien on the plantation in respect of the balance-due to him, and is an ex- ception to the general rule which applies to Principal and Agent. Such lien not being the result of an express contract, but given by implica- cation of law, if created by written contract, is excluded. Therefore, if a Consignee takes an express security, such security being the stipulation and agreement of the parties, it excludes his general lien. So held by the Judicial Committee *vhere the party claiming a general lien as Consignee, was also a Mortgagee of certain estates, and had, by deed, stipulated for the consignment of their produce, as well as that of other Plantations, subject to the rights and interests of existing Mortgagees then subsisting thereon. Chambers v. Davidson .. .. .. .. .. .. .. .. .. 296 LIMITATION OF SUIT against a Clergyman, under the Church Dis- cipline Act, 3 & 4 Viet. c. 86, sec. 20. Simpson v. Flamank .. 463 LOWER CANADA, LAW OF: See COLONIAL LAW, 9, 10, 11. MANAGER OF BANK, scope of authority of: -See PRINCIPAL AND AGENT. MARRIAGE : See COLONIAL LAW, 11 ; NULLITY OF MARRIAGE. MASTER AND SERVANT Liability under Code Civil for negligence of servant : See COLONIAL LAW, 4. MAURITIUS, LAW OF : See COLONIAL LAW, 4, 5. MERCHANT SHIPPING ACT, 17 & 18 Viet. c. 104, sec. 388, as to ex- emption of Owner of ship for damage caused by default of Pilot. The "lona" 426 MORTGAGE The assignee of a mortgagee cannot stand in any different character, or hold any different position, from that of the mortgagee himself, although the mortgagor may not have been a party to the assignment. Every mortgagor has the right to have a re-conveyance of the mortgaged property upon payment of the money due upon the mortgage, and the mortgagee is charged with the duty of making such re-conveyance upon such payment being made. Where, therefore, a mortgagee having, besides the property mort- gaged, certain promissory notes made by the mortgagor as collateral security for his debt, transferred the mortgage without assigning the collateral securities : Held, that he was not entitled so to sever the debt from the security, INDKX and an Injunction, printed again* his proceeding at law to recover the amount of one of his notes pending a suit instituted by the mort- gagor, to redeem and to settle the equities of the parties, sustained, WaUctr r. Jo*ct 50 NATURAL CHILDREN : Sw COLOVUL LAW, 5. NAVIGATION: See PILOT; SHIP AKD SHIPPING. -1. Liability of Master under Code Civil, Art. 1314, in force in Maun rgligenoe of servant. SJnmdat v. Sai$te .. 162 J. Liability of Ship-owner for negligence in stowage of cargo. The u llc'lci,- 3. Of Manager of a Banking Company. The Bank of Upper Canada \.Bradshaw 479 4. Of 1'ilot, Master, and crew in causing collision. The " Jona" The Velatque; 426,494 NEGLI'iKNCK, LIABILITY FOR: See BILL OF LADISO, 2 ; COLONIAL LAW, 4. TKI'MKNT A Bill of lading for delivery of goods to order or ^g". passes by indorsement and deli verv. The " Marie J<*eph n .. .. 219 NEW I'.i:rXS\\H K, LAW OF: SecYimi FACIAS. NL\Y TRIAL According to the Englidt law prevailing in Xew South 's, the Supreme Court has no power to grant a new trial in a case of Felony. Keg. v. Bertrand 520 KR OF LETTERS PATENT: See PATEST, 3, 4. NOVA SCOTIA : See CONTEMPT OF COUBT, 1. NULLITY OF MARIMA" ;K. Suit for nullity of marriage, and to set aside a marriage contract, on the ground that at thf time of its celebra- the husband was delirious and of unsound mind, arising from an attack of delirium tremens, from which disorder he died two days afterwards. The evidence in chief of one of his medical attendants being to the effect that he was unconscious, and, in his opinion, from the nature of the decease, incapable at any time of contracting such mmisjpg . ral review of the evidence, to be rebutted, especially, the conduct of the same medical witness in speaking lia- bility of deceased's recovery ; and by the evidence of the 1 try, and witnesses at the marriage, of his capacity ; and the judgments of the Courts in Lower C'in>i
  • , MO. 25, does not deprive the Judicial < the Privy Council of the power to entertain an application for an extension of the term of Letters Patent taken ou . I'ntftit has been obtained for the same invention in a for. : and the Foreign Patent would expire before the expiration of Stettt, il the Patent was first obtained abroad by a Foreign u and afterwards taken out in England. in America, for the purpose of petting the patented article into general use in arranged with an A:: in Kiiyl-iml, and in consideration gave him a moiety of the royalties: JMm liability when a collision has occurred by fault of the Pilot, it lies on them to prove that it was occasioned solely by the Pilot. If the Master and crew have contributed to the accident, alt] the Pilot is also to blame, the owners are not exempted from liability for the damage. The Velasquez " 494 PLEADING 1. When the conduct of the shippers as to the stowage was such as by the Bills of Lading Act, 18 & 19 Viet. c. Ill, would support a plea of leave and license in an action by the indorsees of the Bill of lading, quart. The/#&ne" 231 2. A citation or decree issued by the Court under Letters of Request being in the form prescribed by the rules made pursuant to sect. 13 of the Act, it is no valid objection that it does not state the offences com- plained' of to have been committed within two years, the time pre- scribed. It is sufficient if the Letters of Request, which are the foundation of the suit, allege that fact. Simpson v. Flamank . . 463 fiRTTE, INTERPRETATION OF TERM IN ART. 765: See COLONIAL LAW, 5. PRACTICE 1. Application to stay proceedings in a cause in which an appeal from an order in the nature of an interlocutory order is pending before Her Majesty in Council, ought satisfactorily to shew that a INDEX. 585 serious injury will be the result to the party applying, unless the delay asked lor be granted, and that the party applying has come promptly to make the application. Where, therefore, an Appellant from an order of the High Court of Judicature which remitted a cause, appealed to that Court from the Zittah Court, back for the trial of issues framed in accordance with the provisions of Act, No. 8 of 1859, s. 139, having failed in obtaining an order from the High Court to stay proceedings in the Zillah Court, pending the appeal, but not having appealed from that decision ; pre- sented a petition to Her Majesty in Council praying that all proceed- ings in the remanded suit might be stayed till the pending appeal had been heard ; the Judicial Committee, without determining the ques- tion of their right to interfere in such circumstances, held that the petitioner had not shewn any such injury, or used such expedition as entitled him to ask for a stay of proceedings. Quaere, whether, where an order has been made by the Superior Court below refusing to stay proceedings, and such order is not . specially appealed from, the Judicial Committee have any authority to interfere, though an appeal is pending before them from a previous order of the Superior Court made in the same suit, remitting the cause back to the inferior Court before which it is pending. Nawab Sidli/ee Nuzur Ally Khan v. Rajah Oojoodhyaram K/ian .. .. 8 2. Admission of fresh evidence on hearing of appeal refused. The " ticindia " 241 3. Special leave to appeal granted subject to the Respondents objecting to the competency of such appeal at hearing. In re McDer- mott 260 4. A petition having been presented for a re-hearing of the appeal, before the report of the Judicial Committee had been confirmed by Her Majesty in Council, which stated that evidence had been received at the hearing of the appeal which was not called for or produced in the Court below, and which the Petitioner alleged contradicted the case made by the pleadings on both sides, was dismissed, the Judicial Committee, without deciding that they were not competent to grant a re-hearing, being of opinion, that the grounds relied on in the petition did not bring the case within any principle on which such an application could be supported. The " Singapore " and " Hebe " .. 378 5. Appeal in formd pauperis is allowed. The {wrty had not been heard in the Court below, as the Court required security for costs, which, by reason of his poverty, he could not give. George v. The Queen .. .. 389 6. After presentation of petition by Patentee and Assignees of a moiety of the Patent for prolongation of term of Letters Patent, tho Patentee died. Extension granted to Assignees alone in trust for the Widow of the Patentee. In re Herbert's Patent 399 7. An appeal involving a sole question of costs cannot be admitted. Wilson v. The Queen .. ... .. .. .. .. .. 406 8. Special leave to appeal from a conviction of a Colonial Court for a misdemeanor having been given, subject to the question of the juris- diction of Her Majesty to admit such an appeal ; and it api>eariiiou the merits of the case, or to pronounce an opinion upon the legal objections to the conviction, the prisoner having obtained the substantial benefit of a free pardon, and dismissed the appeal. Lev it n v. lieg. .. , . 536 INDEX PREROGATIVE It la the inherent prerogative right, and, on all proper occasion*, the duty, of the Queen in Council to exercise an appellate :i all cases, criminal aa well aa civil, a; Colonies, It an appeal lice, and where, either by the term* of Barter or Statute, the power of the Crown ha* not been parted with, with a \ :, aa far aa may be, the due adm in ist na- tion of justice in an individual case, but alao to preserve generally the due course of procedure. The exercise of this branch of the prerogative in criminal cases is to be cautiously admitted, and is regulated by consideration of circum- stances and consequences. Leave to appeal will only be granted in special circumstances, such as where a oaae raises questions of great and general importance in the administration of justice, when it be proper for the Judicial Committee to advise the allowance of such an appeal Rrg. v. Bertraml See CONSTITUTION OF TUB ROYAL COUBT or JERSEY. u, LAW, 9, 10. MITIOX If I'ATKNT A! I'THIM, THE TERM 01 re Allan's Patent 507 PRINCIPAL ANH AGENT In an action brought by a Banking Com- pany against their late Manager and Cashier to recover moneys ...:::._: to the Bank, alleged to have been improperly applied in discounting Bills, &c., for his own advantage, for the benefit of parties and Companies with whom he was connected, and in which he was interested, it appeared that such transactions were all in the ordi- nary course of the business of the Bank ; that he had not exceeded the power and authority with which he was intrusted ; and that no case of bad faith could be proved against him ; the Judicial Committee, affirming the judgment of the Superior Court and Court of Queen's Bench of Lower Canada, held, under such circumstances, that no such action could be sustained, and dismissed the appeal with costs. The Bank of Upper Canada v. Bradtha .. .. .. .. 479 PROBAI'.I. OB r.KKACH OF CUSTOMS OR1MN ticate of Vice-Admiralty Judge refusing damages and costs. Wilson \. The Queen .. .. .. .. 405 PROCUREUR GEXERALE ET SPECIAL Answerable to Cettui que trust for profit made as Procureur. Williams v. Stevens .. .. 352 PROFITS: See PATENT, 1. PROOF OF l>i:i;TS: See INSOLVENCY, 1. PROLONGATION OF TERM OF LETTERS PATENT: See PATENT. PRESBYTERY : See ECCLESIASTICAL LAW, 2. RAILWAY ANT) LAND COMPANY : Set DEBENTURE BOND. REAL ESTATE IN JERSEY devise of: See COLONIAL LAW, 2. RE-CONSECRATION OF CHURCH, when necessary : See ECCLESIAS- TICAL LAW, 1. RECONVENTION : See ACTION, 1. RECORD : See CBOWX GRANT. REGISTRATION : See DEBENTURE BOND. RE-HEARING OF APPEAL: See PRACTICE, 4. RE-SALE BY VENDOR : See ACTION, 1 ; VENDOR A>*D PUBCHASEB. 1XDEX. 587 PAGE REVENUE 1. Decree of the Vice-Admiralty Court of Sierra Leone in a proceeding in rtm for breach of the revenue laws of the Colony, con- demning the goods seized, and the owners in penalties, reversed by the Judicial Committee, so far as the penalties were concerned, with costs, it appearing that though the claim of the owner of the goods was rightly rejected, because he failed to comply with the rule of the Vice-Admiralty Court requiring security for costs, yet that such rule did not apply as regarded the penalties, against which he was entitled to be heard in the Court below without giving any such security. George v. The Queen .. .. .. .. .. .. .. 389 2. Appeal from a decree' of the Vice- Admiralty Court of Sierra Leone, restoring property seized for breach of the Customs Laws, but without damages or costs, the Judge below being of opinion, that there was probable cause for the seizure ; dismissed by the Judicial Committee with costs : their Lordships being of opinion : (1) that as regarded one of the Appellants, who proved not to be the owner of the goods, though so proceeded against, the appeal was for costs alone, and, therefore, could not be entertained ; and (2) that it appearing from the evidence that there was probable cause for the seizure, the Judge of the Admiralty Court was justified in refusing to decree damages and costs to the other Appellants, the owners of the goods seized. The case of Xenos v. Alderdey (12 Moore's P. C. Cases, 359) referred to, and the criterion there applied in considering whether there was probable cause for seizure, recognised and approved. Wilson v. The Queen 405 110 YAL COURT OF JERSEY : See CONSTITUTION OF ROYAL COURTS. SAILING RULES, 18 & 19 OF 1863. If a vessel departs from her course to avoid immediate danger, the burthen of proving the necessity lies on her. The " Velasquez. The "Ayra" and "Elizabeth Jenkins" 494, 501 SALE : See ACTION, 1 ; VENDOR AND PURCHASER. SALE OF CROWN LANDS IN COLONIES : See CROWN LANDS. SALVAGE 1. The Judicial Committee is always reluctant to review cases of salvage, which involve the exercise of the discretion of the Judge of the Court below, but, being a final Court of appeal, will, if the justice of the case requires it, increase the amount. The question how far a deviation in a vessel's course, in the per- formance of salvage services to life or property, may be the voidance of a Policy of Insurance, is not satisfactorily settled, though the risk may operate on the Judge's mind in detcrminiug the amount to be awarded for salvage services. A moiety of the value of the vessel and cargo, in a case of the salvage of a derelict, was formerly the amount awarded, but the Maritime Courts now give only sucluuiuount as is fit and proper with reference to all the circumstances of the case, having regard especially to the value of the property salved. In a case where the vessel was derelict, and her value, with the cargo on board, exceeded 30,000, was salved by two vessels, one of which, with her cargo on board, was worth 150,000, and the other above 3000, and a tender of 2000 for salvage services had been refused, which sum was awarded by the Vice- Admiralty Court : the Judicial Committee, looking at the respective values, and taking into consideration the additional risk to the salvors from having to make a deviation in their course, held that sum insufficient, and increased the amount of salvage by 1000. The " Scindia" 241 VOL. I. 3 3 D :,ss INI' I A .f i a case where a ssel and cargo of the value of i wo Mired by a steamer. ih lit r c.ir. ... wu of the value of 80,000, the Vice-Admiralty Court awarded 300 for alvap : by the Judicial Comm. nder the was not .- uid the same increased to 450. 11 260 : salvage reward to the owners of the salving TMK!, tho circumstances that the salving vee.- .^ from her course cargo for . <>n,and the exposure todm of the Kit . in P i,,;.-nn_' salvnge lerrioea, are elements to be taken into 0011* .A Abercrombie " .. .. 454 SCIRE FACIAS: See CROWN GRANT. ::l IV 1 i :; < IS, in a Cause of Forfeiture and Penal ties for Breach of Revenue Laws, not necessary, as far as regards penalties. Qevrge v. The Queen ................ a-'-j See APPEAL, 2, 3, 4. SEIG X I : I" 1 : 1 1 : : See COLONIAL LAW, 1 0. OF SBCURITIKS i .T: See MORTGAGE. SHIP AND SHIPPING 1. Judgment of the IIL'l. Admiralty in a cause of collision, which imput. 1 mutual blame, and condeiu: each j>artv in a moiety of the damages and coats; revered ly the Judicial Committee upon a review of the evidence and tin- opinion of the Nautical Assessors. The " Singapore * and the " lid* " . . . . 378 2. A Steamer was si i sailing vessel at a sufficient distance to have avoided a collision. The Steamer took no steps until the vessels were very near each other, when she starboarded her helm, and the sailing vessel ported her helm to avoid a collision, which, notwith- standing, took place : /A//, tint the Steamer was alone to blame, as it was the duty of a steamer to keep out of the way of the sailing vessel, provided she could do it, cither by starboarding or porting her helm, and that, on the other hand, it was the duty of the sailing vessel to keep her course, and that she could only be excused from deviating from it by shtv. that it was necessary to do so in order to avoid immediate dan . ............... 494 3. If a ship bound to keep her course, under the 18th Sailing Rule of 1863, justifies herdepartiire from that rule under the 19th rule, she takes upon herself the obligation of shewing not only that her de- parture was at the time it took place necessary, in order to avoid immediate danger ; but also that the course adopted by her was reasonably calculated to avoid that danger. In reversing the decree of the Admiralty Court on the ground that both vessels were to blame, the damages were directed to be equally divided ; each party to bear his own costs, both on appeal and in the Court below. The " Agra " and " Elizabeth Jenkint* . ..501 See BILL OF LADING ; PILOT ; SALVAGE. SIERRA LEONE, Revenue Laws of: See HARBOUR DUES ; REVKHUB. SLAVE TRADE Seizure of a Foreign vessel in an English harbour for violation of the provisions of the 5 Geo. 4, c. 113, having been admitted, and proceedings taken thereon, the Judicial Committee held themselves not required to give an opinion whether such con- struction of the Statute was ri<4ht or not, but that statute having pro- vided (&. 35) that costs and damages shall be given where it shall appear to the Court that the capture, seizure, or prosecution, shall not be justified by the circumstances of the case, the Court below is not at INDEX. 589 PAGE liberty to use the rule of evidence introduced by the Statute, 5 & 6 Will. 4, c. 60, contained in Arts. 6 and VII. of the Treaty between Limit JJrifm'n, France, and Sardinia, embodied in that Statute, as a ground for refusing, on the restoration of a vessel seized under the Statute, 5 Geo. 4, c. 113, to decree damages and costs. Where, therefore, a Foreign vessel had been seized and afterwards decreed by the Vice- Admiralty Court of Sierra Leone to be rest<>: but without damages and costs, the Judge of that Court being of opinion, that there was probable cause for the seizure, from having an apparently unusual number of empty water-casks found in her (which articles are by the above Treaty specified and made conclusive as a ground sufficient to warrant detention, and to preclude compensation, even if no sentence of condemnation has been pronounced), and that as a Judge of a Foreign Court, had she been taken there, would have been precluded, under the circumstances, by the terms of the Treaty from awarding costs and damages, the Court was precluded ftoin giving such : It was Held by the Judicial Committee, that though the Judge of the Vice-Admiralty Court was at liberty to use the circumstances relied on as a ground to justify the seizure under the Statute, 5 Geo. 4, c. 113, yet it was not comjx;tent for the Court, after a satisfactory explanation of the purposes for which the casks were used, to apply the rule regarding the refusal of damages and costs enacted in the Statute, 5 & 6 Will. 4, c. GO, to a vessel seized under the 5 Geo. 4, c. 113, and his sentence in that respect overruled. A vessel of 600 tons, capable of carrying 900 tons, lying in the harbour of Sierra Leone, having been examined and released by the Custom House Officers, was afterwards hauled over and seized by D. t a Lieut, in H. M. Navy, accidentally at Sierra Leone. She had on board a cargo fit for the purpose of trading upon the African coast, with some thousand of gallons of palm oil stored in casks on board. Of 111 casks found empty, sixty-five were clean new casks, and the others had been used for carrying oil. The ship's pipers were delivered up to the Seizor, and every information regarding the history and ownership of the vessel afforded him. At the time of her seizure her Captain was engaged on shore in the sale of the residue of the outward cargo, and was in the act of purchasing a return cargo. Tliu alleged suspicious circumstances of the vessel having a second deck, and more than the requisite quantity of cooking utensils, was satisfac- torily accounted for, by the fact of the size of the vessel requiring for stowage a second deck, as, when loaded, she was not safe or insurable without such, and the evidence that the amount of the ship's vessels for cooking was less than requisite for the wants of the Captain and crew. Under such circumstances, it was held by the Judicial Com- mittee, that there was no jrrohubUis causa for seizure ; that so much of the sentence of the Vice-Admiralty Court as held that there was probable cause should be reversed, and that the vessel ought not only to have been restored, but with damages and costs, which their Lord- ships awarded on appeal, together with costs of the appellate Court. The " Eicardo Schmidt " 268 SOLICITOR AND CLIENT : -See COLONIAL LAW, 7. SPECIAL APPEAL : -See APPEAL, 1, 2, 3, 4, 6. STAYING PROCEEDINGS IN COURT BELOW PENDING AP- PEAL : See PRACTICE, 1. STOPPAGE IN TRANS1TU : See BILL OF LADING, 1. STOWAGE, LIABILITY OF SHIPOWNER FOR NEGLIGENCE: See BILL OF LADING, 2. PAGE : Set COL. ,5. - for breach of Revenue Laws : & RXVEM SM EccucMABTi TIMK Toll AITKAUXG: See A. nxi; SFATKITY FH COSTS: SAm^ T1TLF. // of powe*M . kind of informal writing wu stint/ jiriftf, KMpj r rbal , was sufficient to establish tin- tr.mMer. .!/./.-< A '/ v. /.I//,/- .................. 688 TITI.I: IY ION OF 1 i I. ASM. 1 ' X DI'.KTA K 1 N't i Construction of word : Sc> re an Iiivmtiuii is not bnm^lit into practical u.- Hiunptiuii is against the utility nf the inu-utimi. hi re Herbert* 1'nto.t .. .. ............ 3i9 :.t raises a prcsunij)ti.n rvjninst utili 1 I'attnt ............ ..507 AND IT l:t '! 1 ASK,; If, k-forc the actual doli very, the V. 1. 1- ]>rii|itTty while the 1'ureha.vr is in default, the re-sale will not authori/.r : consider the contract rescinded, so as to entitle him to recover back any dejmsit of the price, or to resist pay ;.ich may lw still due. rule applies when th< iv has been a delivery, and the Vendor afterwards ta. ut of the possession of a Purchaser, and resells it. L'uuMijee Edulj .. .. .. .. 127 AKMlKAI.l Y COURT ACT: 26 & 27 Viet. c. 24 : See APPEAL, 1. )RIA Appeals from : See APPEAL, 3, 4. WAI! KANT of Committal by Speaker of a Colonial House of Legislature oii^ht to shew on the face of it that the contempt \V;LS committed in the presence of the House. Doyle v. Falconer .. .. .. 328 \V.\STK LAND IX AUSTRALIA : See CBOWX GRANT; CBOWN WF.ST INDIAN KSTATKS: 8* I WILL Devising real estate in Jersey: See COLONIAL LAW, 8. WRIT OF INTRUSION : See CBOWN GRANT. LAW LIBRARY UNIVERSITY OF CALIFORNU LOS ANGELES