N WM, Priniers 27, THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW )KS LIMITED, ES, ?/ Law Reporting ON, E.C, )th, 38J. lESENT LAWS ster-at-Law, LL.B. London Dlin ; Exhibitioner in Real jlmas, 1869 ; Joint Author of ruptcy Acts, 1883 ; " and of I Incorporated Law Society, ent and living law, and only cessary to enable the reader Ve are able confidently to predict they will become ihensive, and we have little . , . We are of opinion BRETT'; OF ENG Universitj Property ; " Gierke : " Leading %* The ma to deal with p to understand The Law recommend t deservedly po but praise for that Mr. Bret ,, cloth, 16^. LEADI] By Thomas Brett, of the M ke and Brett's Conveyancing Acts," aiiu lai.. .^^v.u...«,. ... —I— J - y, &c., &c. Third Edition revised to date. By J. D. Rogers, B.C.L., and J. M. Dixon, of the Inner Temple, Barristers-at-Law. " There is no better book or one so good from which the student can learn the most important decisions of Courts of Equity during recent years." — Jurist, Specially recommended as a Text Book for " The Final " by the Solicitors' Journal. Now ready, price 32.?. 6d. ; cash, 26$. ; postage gd. THOMSON'S PRINCIPLES OF EQUITY AND EQUITY practice of the county COURT: for the use of Practitioners in the Chancery Division of the High Court, and in the County Court. With Precedents of Particulars of Claim, Defences, Notices of Motion, Affidavits, Judgments, Orders, &c. By Andrew Thomson, Esq., B.A., LL.D., Barrister-at-Law ; formerly Lecturer and Reader on Equity to the Incorporated Law Society, and afterwards Professor of Equity to the Inns of Court. Just published, demy Svo., cloth, loj. 6d. THE LAW RELATING TO FRIENDLY SOCIETIES. Com- prising the Friendly Societies Acts, 1875 to 1893, as Amended by the Friendly Society's Act, 1895 : together with an Appendix containing Model Rules and the Forms appended to the Treasury Regu- lations, 1896. By Frank Baden Fuller, B.A. (Oxon.), of the Inner Temple, Barrister-at-Law. THE TRANSVAAL. Just published, crown 8vo., cloth, 3^. 6d. net. THE POLITICAL LAWS OF THE SOUTH AFRICAN RE- PUBLIC. With an Appendix containing the Constitution of the Orange Free State. Translated by W. A. Mackadven, B.A., LL B., late Scholar of Brasenose College, Oxford ; Advocate of the Supreme Court, Cape Colony, and of the High Court, South African Republic. Just published, demy 8vo, 882 pages, cloth, 281'. ; cash price 22s. 6d, (postage Zd.). EMDEN'S PRACTICE AND FORMS IN WINDING-UP COMPANIES AND RECONSTRUCTION. Fifth Edition. With chapters on Reduction of Capita], Alterations of the Memorandum of Association, and Debenture-holders' Remedies. By D. Stewart Smith, LL.B. (Lond.). of the Middle Temple, Barrister-at-Law, assisted by Henrv Johnston, Scott Scholar, I.L.S., of the Middle Temple,' Barrister-at-Law. Just published, royal 8vo, cloth, 25^. NORMAN'S DEATH DUTY TABLES, comprising in an expanded form Tables I., II,, III., appended to the Succession Duty Act, 1853 (16 & 17 Vict. c. 51), for valuing Successions and Annuities ; also Discount, Interest, Rate per cent., and other Tables, with numerous examples to illustrate their use and appHcation. By A. W. NORMAN, B.A., B.Sc. (Lond.), of the Legacy and Succession Duty OiSce, Author of "A Digest of the Death Duties." 27, FLEET STREET, LONDON, E.C. WM. CLOWES AND SONS, Limited, LAW PUBLISHERS, WOLSTENHOLME'S CONVEYANCING ACTS. Now ready. Seventh Edition, thoroughly revised, clotli, 20s. THE CONVEYANCING ACTS, 1881, 1882, and 1892: the Vendor and Purchaser Act, 1874 ; the Land Charges Registration and Searches Act, 1888 ; the Trustee Acts, 1893 and 1894 ; the Married Women's Property Acts, 1882 and 1893 ; and the Settled Land Acts, 1882 to 1890. With Notes and Rules of Court. By Edward Parkek Wolstknholme, M.A., of Lincoln's Inn, Earrister-at-Law, one of the Conveyancing Counsel of the Court : Wilfrid Brinton, M.A., of the Inner Temple, Barrister-at Law ; and 15knjamin Lennard Cherry, LL.B., of Lincoln's Inn, Barrister-at-Law. Second Edition, royal 8vo, 1,100 pages, cloth, 25^. THE PRINCIPLES OP RATING as applied to Railways, Docks, Tramways, Gas and Water Works, Coal and other Mines, Electric Lighting Works, Manufactories, and other Hereditaments. With a complete Digest of Cases and all the important Statutes dealing with Local Rating. By Edward Bovi.e, of the Inner Temple, Barrister-at-Law, and G. Humi-hreys- Davies, Fellow of the Surveyors' Institute, &c. 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With Notes and Cross References and an Appendix containing such existing Statutes as still affect building operations within the Administrative County of London ; also the Bye-Laws, Regulations and Or.iers uf the London County Council and of the Commissioners of Sewers of the City of London. By W. Rissell- Griffiths, LL.B. of the Inner Temple and Midland Circuit, Editor of "The Statutes Regulating London Building ;" and Francis W. Pf.mber. M.A., of Lincoln's Inn, Fellow of All Souls' College, and late Eldon Law Scholar, Draftsman uf the Bill as originally introduced into the House of Commons. Second Edltit)n, demy 8vo, 800 pages, cloth, 30J. THE MERCHANT SHIPPING ACT, 1894. With Copious Notes and References to decided Cases, and an exhaustive Index. By T. E. Scrutton, Esq., of the Middle Temple, Barrister-at-Law, Author of " Charter Parties and Bills of Lading," &c. 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Second Edition. By F. A. Bosanquet, Q.C, and J. R. V, Marchant, Barrister- at-Law. Demy 8vo, cloth, 20s. THE LAW OF HUSBAND AND WIPE. By Charles Crawley, M.A., of Lincoln's Inn, Barrister-at-Law, late Fellow of Downing College, Cambridge, and Author of " The Law of Life Insurance." " This book is the most comprehensive and valuable one on the law of husband and wife with which we are acquainted." — Athenaum. Demy 8vo, cloth, 12^'. CATHOLICS. A Manual of the Law Specially Affecting Catholics. By W. S. Lilly, LL. M., of the Inner Temple, Barrister-at-Law, Secretary to the Catholic Union of Great Britain, and J. P. Wallis, M.A., of the Middle Temple, Barrister-at-Law. 27, FLEET STREET, LONDON, E.G. MUi U^ (XcUA.^(9^' (Z-t^^^^fM^^^L^^^-^ ^. G. HEMMERDE, K.C., 1, HARE COURT, TEMPLE, A TREATISE ON THE ADMIRALTY JURISDICTION AND PRACTICE IN COUNTY COURTS. BY FEANCIS WILLIAM JiAIKES, LL.D. Cantab., OP THE INNER TEMPLE, ONE OF HER majesty's COUNSEL, AND BURLEIGH DUNBAR KILBURN, M.A. Oxon., OF THE INNER TEMPLE, BARRISTER AT LAW. LONDON: WILLIAM CLOWES AND SONS, LIMITED, 27, FLEET STREET 1896. LONDON : PEntTED BT WILUAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHAEIXG CROSS. T l^ 1307 CONTENTS. PAGE Statutes referred to ... ... ... ... ... v Names of Cases ... ... ... ... ... xiii Table of Abbreviations ... ... ... ... xxvii Introduction ... ... ... ... ... ... xxix Jurisdiction ... ... ... ... ... ... 1 Practice ... ... ... ... ... ... 157 Appendix — C. C. Ad. Jur. Act, 1868 197 0. C. Ad. Jur. Amend. Act, 1869 ... ... ... 205 Orders in Council conferring Admiralty Jurisdiction on County Courts ... ... ... ... ... 207 County Courts Act, 1888 ... ... ... ... 218 County Court Rules in Admiralty Actions ... ... 288 Other County Court Rules specially referred to in the Text ... ... ... ... ... 302 Admiralty Forms ... ... ... ... ... 307 Other County Court Forms referred to in the Text 323 Miscellaneous Forms ... ... ... ... 331 Scales op Costs ... ... ... ... ... 335 Court Fees ... ... ... ... ... 350 Historical Survey of Enactments relating to County Court Appeals in Admiralty ... ... ... 359 Supplement — Courts of Survey ... ... ... ... ... 363 Dangerous Goods ... ... ... ... ... 390 Appeals from Pilotage Authorities ... ... 392 Index ... ... ... ... ... ... ... 397 y^j /I ?491G8 STATUTES REFERRED TO. PAGE 28 Hen. VIII. c. 15 (The Offences at Sea Act, 1536) . . . xv 8 Anne, c. xii. (The Liverpool Dock Act) .95 1 & 2 Geo. IV. c. 75 (repealed) sec. 24 xiii I & 2 Geo. IV. c. 76 (Cinque Ports Act, 1821) sec. 4 112 sec. 5 112 sec. 19 112 sec. 21 112 9 Geo. IV. c. 37 (Cinque Ports Act, 1828) 112 5 & G Will. IV. c. 76 sec. 108 ix 3 &4 Vict. c. 65 (The Admiralty Court Act, 1840) . . . . xviii sec. 6 . . . . 7, 12. 21, 24, 43, 117, 119, 121 9 & 10 Vict. c. 93 (Fatal Accidents Act, 1846) (Lord Campbell's Act) 45, 142 9 & 10 Vict. c. 95 (County Courts Act, 1846) (repealed) ... 5 9 & 10 Vict. c. 99 (Wreck and Salvage Act, 1846) (repealed) sec. 21 xiii sec. 40 xiii 10 Vict. c. 27 (Harbours, Docks, and Piers Clauses Act, 1847) sec. 74 47, 122 sec. 75 47 II & 12 Vict. c. 43 (Summary Jurisdiction Act, 1848) . . .174 13 & 14 Vict. c. 61 (County Courts Act, 1850) (repealed) sec. 14 105 16 & 17 Vict. c. xxi. (Liverpool Court of Passage Procedure Act, 1853) 94 17 & 18 Vict. c. 78 (Admiralty Court Act, 1854) (repealed) . . xviii 17 & 18 Vict. c. 104 (M. S. Act, 1854) (repealed) .... xviii sec. 2 30 sec. 167 28 sec. 169 31 sec. 182 . . 17 sec. 187 . . . . . . . 29, 30 sec. 189 31 sec. 191 120 sec. 233 18, 19 sec. 290 38 sec. 449 131 sec. 460 112 sec. 468 17 sec. 498 16, 17 sec. 527 43 17 & 18 Vict. c. 120 (M. S. Eepea^Act, 1854) 112 VI STATUTES REFERRED TO. PAG". 18 & 10 Vict. c. 48 (Cinque Ports Act, 1855) 112 18 & 19 Vict. c. 90 (Crown Suits Act, 1855) 52 18 & 19 Vict. c. Ill (Bills of Lading Act, 1855) .... 47 19 & 20 Vict. c. 97 (Mercantile Law Amend. Act, 1856) sec. 5 143 19 & 20 Vict. c. 108 (County Courts Act, 1856) (repealed) . . 115 sec. 44 154 21 & 22 Vict. c. 106 (Government of India Act, 1858) sec. 65 55 23 & 24 Vict. c. 127 (The Solicitors Act, 1860) sec. 28 125 24 Vict. c. 10 (The Admiralty Court Act, 1861) .... xviii see. 2 30, 44 sec. 4 27,122 sec. 5 25, 117, 121 sec. 6 40, 42. 48, 121 sec. 7 43,45,46, 117 sec. 10 27, 30, 117, 120, 121 sec. 18 177, 178 sec. 35 . . . 121 25 & 26 Vict. c. 63 (M* S. Amend. Act, 1862) (repealed) sec. 18 17, 18, 19 27 & 28 Vict. c. 95 (Fatal Accidents Act, 1864) (Lord Campbell's Amend. Act) 45, 142 31 & 32 Vict. c. 71 (C. 0. Ad. Jur. Act, 1868) sec. 1 1 sec. 2 2 sec. 3 5, 16, 162 sub-s. (1) 6 sub-s. (2) 21 sub-s. (3) 39, 42 sub-s. (4) 57 sec. 4 4 sec. 5 4 sec. 6 60, 63, 68, 172 sec. 7 59, 63, 172 sec. 8 61, 63, 85, 172 sec. 9 14, 64, 65, 6S sec. 10 69, 71 sec. 11 69 sec. 12 74 sec. 13 75, 173 sec. 14 76 sec. 15 76 sec. 16 76 sec. 17 78 sec. 18 78 sec. 19 78 sec. 20 79, 173 sec. 21 SO, 157 sec. 22 84 sec. 23 90, 184 sec. 24 92 sec. 25 94 sec. 26 96,97,100,101 sec. 27 96, 104 sec. 28 106 sec. 29 106, 112 sec. 30 107 sec. 31 96, 108, 186 Bee. 32 110, 184 STATUTES REFERRED TO. vii 31 & 32 Vict. 71 (0. C. Ad. Jur. Act, 18G8) r^c'o sec. 33 xvi. 111 sec. 34 1, 70, 113 sec. 35 115 sec. 30 115 31 & 32 Vict. c. 78 (Admiralty Suits Act, 18G8) sec. 2 52 sec. 5 53 sec. G 53 32 & 33 Vict. c. 51 (C. C. Ad. Jur. Amend. Act, 18G9) sec. 1 1, 72, 81, lU sec. 2 5, 42 sub-s. (1) 39 sub-s. (2) 57 sec. 3 81 sec. 4 42 sec. 5 69, 72 sec. G 94 35 & 3G Vict. c. 86 (Borough Local Court of Twccord Act, 1872) sec. 6 97 36 & 37 Vict. c. 66 (Judicature Act, 1873) sec. 3 6 sec. 5 6 sec. 8 xvi sec. 16 154 sec. 18, sub-s. (5) 107 sec. 19 • . . 155, 156 sec. 24, sub-s. (5) 6 sec. 25, sub-s. (9) 46, 141 sec. 33 359 sec. 34 359 sec. 42 359 sec. 45 107, 111, 300 sec. 50 155, 156 sec. 52 98 sec. 56 73, 103 sec. 89 59 sec. 90 57 38 & 39 Vict. c. 17 (Explosives Act, 1875) sees. 87-96 392 sec. 91 392 sec. 94 392 sec. 95 392 38 & 39 Vict. c. 50 (C. C. Acts, 1875) (repealed) sec. 6 105, 114 sec. 8 115 sec. 10 106, 107 sec. 12 106 38 & 39 Vict. c. 77 (Judicature Act, 1875) sec. 21 159 sec. 33, sub-s. (2) 64 39 & 40 Vict. c. 59 (Appellate Jurisdiction Act, 1870) sec. 17 97, 100, 361 39 & 40 Vict. c. 80 (M. S. Act, 1876) (repealed) sec. 6 372 sec. 10 372 sec. 13 371 sec. 14 365 sec. 34 371 sec. 37 371 40 & 41 Vict, c. 16 (Removal of Wrecks Act, 1877) . . . .122 VIU STATUTES REFERRED TO. FAOK 4-2 & 43 Vict. c. 49 (Summary Jurisdiction Act, 1879) . . .174 43 & 44 Vict. c. IG (Mer. Seamen (Payment of Wages and Rating) Act, 1880) 29, 30 43 & 44 Vict. c. 42 (Employers Liability Act, 1880) .... 46 44 & 45 Vict. c. 68 (Judicature Act, 1881) sec. 19 97, 100, 116, 362 sec. 27 115, 117 46 & 47 Vict. c. 41 (M. S. (Fialiing Boats) Acts, 1883) (repealed) sec. 13 18 sec. 22 19 sec. 27 28 47 & 48 Vict. c. 61 (Judicature Act, 1884) sec. 18 58 sec. 24 115 51 & 52 Vict. c. 43 (County Courts Act, 1888) 5 sec. 9 69 sec. 10 173 sec. 45 78 sec. 48 185 sec. 52 185 sec. 56 66 sec. 62 68 sec. 65 67, 173 sec. 66 67 sec. 68 63 sec. 69 67 sec. 74 80, 82, 114, 157 sec. 78 166 sec. 79 166 sec. 80 22 sec. 82 167 sec. 83 88 sec. 85 63 sec. 87 22, 145, 160 sec. 88 145, 160 sec. 89 145, 160 sec. 91 145, 166 sec. 92 79, 180 sec. 97 158 sec. 100 73 sec. 101 70, 115 sec. 103 72, 73, 77 sec. 104 180 sec. 106 178 sec. 108 101 sec. 109 101 sees. 110-112 373 sec. Ill 174 sec. 113 145 sec. 114 60, 146 sec. 115 146 sec. 116 66,67,96,146 sec. 117 96, 113, 146 sec. 118 188, 190 sec. 119 . . . . . . . .192 sec. 120 ". '. 99, 100, 101, 104, 109, 110, 115 sec. 122 74, 102 sec. 123 106 sec. 125 103 sec. 126 63, 154 sec. 127 . . ... 99, 154, 156 STATUTES REFERRED TO. IX 51 & 52 Vict. c. 43 (Countv Courts Act, 1888) tagr sec. 128 09, 154, 15G sec. 12'J 154 sec. 182 154, 15G sec. 14G 90 sec. 152 184, 185 sec. 164 98, IIG sec. 1G5 116 sec. 179 75 sec. 183 93 sec. 18G 71, 166 sec. 188, sub-s. (3) 70 52 Vict. c. G (Eemoval of Wrecks Act, 1877, Amend. Act, 1889) . 122 52 & 53 Vict. c. 4G (M. S. Act, 1889) (repealed) sec. 1 . 52 & 53 Vict. c. 68 (M. S. (Pilotage) Act, 1889) (repealed) 53 & 54 Vict. c. 44 (Judicature Act, 1890) sec. 5 56 Vict. 5G&57 c. 14 (Statute Law Revision Act, 1893) (3) Vict. c. 37 (Liverpool Court of P; sec. 8 sec. 10 57 & 58 Vict. c. 16 (Judicature Act, 1894) sec. 1, sub-8. (4) sec. 1, sub-s. (5) sec. 4 57 & 58 Vict. c. GO (M. S. Act, 1894) sec. 2, sub-s. (2) sec. 3 . sec. 33 . sec. 64, sub-ss. (2) sec. 100 see. 123 sec. 134 sec. 135 sec. 136 sec. 137 sec. 156 sec. 160 sec. 162 sec. 164 sec. 165 sec. 167, sub-ss. (2), (3) sub-s. (3) sec. 168 see. 171, sub-s. (3) sec. 174, sub-s. (1) sub-ss. (2), (3) sec. 186 sub-s. (4) sec. 189, sub-s. (4) sec. 193 sec. 196 sec. 198 sec. 199 sec. 207, sub-s. (4) sec. 208 sub-s. (3) sec. 212 sec. 221 sec. 228 assage Act, 1893 155, 156, 157 107, 155, 156, 187 . 116 . 27 . 394 . 67 2, 14, 64, 115 . 96 . 96 . 96 . 50 . 50 . 126 92, 127 . 133 . 129 . 29 . 29 . 129 . 129 17,18 . 36 . 28 . 32 . 32 27, 117, 120 . 41 38 . 3" 33, 130 . 130 . i';5 . 130 34, 130 . 34 . 131 . 34 . 35 . 35 . 131 . IS . 36 . 37 STATUTES REFERRED TO. 57 & 58 Vict. c. 60 (M. S. Act, 1894) rAG". sec. 229 ?>1 sec. 281 . 129 sec. 232 . 37 sec. 233 . 38 sec. 239 . 133 sec. 240 . 134 sec. 260 . 38 sec. 2(31 . 38 sec. 204 . 38 sec. 205 . 38 sec. 206 . 39 sec. 207 . 365 sec. 268 . 366 sec. 271 . 363, 365 sec. 272 4 sec. 275 363, 365, 371 sec. 314 . 364 sec. 318 . 364, 366 sec. 374 . 128 sec. 387, sub- B9.(l ). (2), (3), (4) 35 sec. 399 18, 28 sec. 400 . 18 sec. 407 . 19 sec. 411 . 28 sec. 420 4. 364, 366 sees. 432-435 . 371 sec. 431 . 371 sec. 434 . 11 sec. 439 . 871 sec. 446 . 390, 392 sec. 447 . 391, 392 sec. 448 . 391, 392 sec. 449 . 391, 392 sec. 450 . 363, 391 sec. 451 . 372 sec. 457 . 372 sec. 458 . 372 sec. 459 366, 371, 372 sec. 460 . 368, 372 sub-s •(2) . 21 sec. 461 . 368 sec. 462 . 369, 371 sec. 463 . 369 feub-s (7) . 373 sec. 487 4, 363, 373 sec. 488 . 373, 374 sec. 489 . 375 sec. 490 . 375 sec. 491 . 375 sec. 502 48, 49 sec. 503 48, 49, 150 sec. 504 48, 147, 150 sec. 508 . 50 sec. 510 , 9 sec. 513 . 20 sec. 516 , 20 sec. 518 , 21 sec. 525 , 21 sec. 526 , , 21 aec. 541 . 54 STATUTES REFERRED TO. XI 57 & 58 Vict. c. CO (M. S. Act, 1894) rAf:r, sec. 544 7, H, 17 sub-s. (2) . 9, l(t, 119 8Ub-8. Qi) . J(» sec. 54G . 7, 9, 2(i sec. 547 13 sub-s. (2) . • 7, 14,65, 113 sub-s. (5) , 14,89 sec. 548 . 13 sec. 551, sub-s. (1) J5, 88 sub-ss. (2), (.3) . 89 sec. 552 . 15, 17, 89 sec. 55:* . 15 sec. 555 16, 17 sec. 55() 16, 17 sec. 557 . 19 sec. 5(35 8 sec. 567 20 sec. 571 14,113 sec. 572 . 51 sec. 57:5 . 395 sec. GOO ... . 395 sec. GOl .... . 395 sees. GOG-GOt) . 395 sec. 610 4, 3(j 3, 392, 395 sec. G2G . 15 sec. G33 . 51 sees. 680-G87 . 392 sec. G88, sub-s. (1) . 43 sub-ss. (2), (.3) . 44 sec. GOl .... . . 132 sec. G92, sub-ss. (1), (2) . 371 sec. 698 .... . 42 sec. G94 .... . 127 sec. 695 .... 126, 132 sec. 734 .... . 371 sec. 742 .... 9,42 sec. 743 .... . 365 sec. 745 .... . 375 NAMES OF CASES. A. Aaltje Willemina . L.R.1A.&E.107 — 26 Acacia — 4 Asp. 254 42 L. T. 264 126 Accomac . 1891, P. 349 7 Asp. 153 59 L. J. Ad. 91 12 Action 1 Spinks 176 — 134 African Steamship Co. r. Swanzy 2 Kay & J. 664 — 25 L. J. Ch. 570 136 Africano . 1894, P. 141 7 Asp. 427 63 L. J. Ad. 125 24, 61, 126 Afrika 5 P. D. 192 4 Asp. 266 49 L. J. Ad. 63 18 Agamemnon — 5 Asp. 92 48 L. T. 880 153 Agnes V. Louisa Ship. Gaz. W. S., 1886, p. 86 — — 65 Agnes Otto 12 P. D. 56 6 Asp. 119 56 L. J. Ad. 45 51 Aid . 6 P. D. 84 4 Asp. 432 50 L. J. Ad. 40 74 Alert. — 7 Asp. 544 72 L. T. 124 96, 100, 160, 186 Alexander 1 W. Rob. 346 1 Notes of Cas. 380 1 Asp. 464 — 25, 26 Alexandria L.R.3A.&E.574 41 L. J. Ad. 94 45 Albert Crosby . Lush. 44 — 30 Alfred . 3 W. Hob. 232 7 Notes of Cas. 352 — 73, 138 Alina 5 Ex. Div. 227 4 Asp. 257 49 L. J. Ad. 40 6, 40, 42 Aline 1 AV. Rob. Ill — 123, 124 Allen V. Garbutt 6 Q. B, D. 165 4 Asp. 520 n. 50 L. J. Q. B. 141 5,25 Amstel 2 P. D. 186 3 Asp. 488 47 L. J. Ad. 11 107, 186 Andalusian 3 P. D. 182 4 Asp. 22 47 L. J. Ad. 65 51 Anderson r. Dean 1894, 2 Q. B. 222 70 L. T. 830 63 L. J.Q.B.668 96 Anderson, Trittou v. Ocean S.S. Co. 10 App. Cas. 107 5 Asp. 401 54 L. J. Q. B. 192 12 Andrews v. Mockford 1896, 1 Q. B. 372 — 177 Aneroid . 2 P. D. 189 3 Asp. 418 47 L. J. Ad. 15 24, 117 Anna 1 P. D. 253 3 Asp. 237 46 L. J. Ad. 15 24,26 Annapolis . Lush. 295 4 L. T. (N.S.) 417 6 Asp. 117 30 L. J. Ad. 201 51 Annie 12 P. D. 50 56 L. J. Ad. 70 10 Annot Lyle 11 P. D. 114 6 Asp. 50 176 Archimedes W. Notes, 1870, p. 10 14 App. Cas. 519 — — 85 Argentirio . 6 Asp. 433 58 L. J. Ad. 1 138 Argo. 1895, P. 33 7 Asp. 534 64 L. J. Ad. 12 88 XIV NAMES OF CASES. Arina 12 P. D. 118 C Asp. 141 56 L. J. Ad. 57 30 Arrow Shipiiiug Co.r. Tyne Iiuprovement Com 111 i ssioners;The Crystal . 1894, A. C. 508 7 Asp. 513 64 L. J. Ad. 146 47 Arthur v. Barton — G M. & W. 135 — 26 Asia .... 1891, P. 121 7 Asp. 25 60 L. J. Ad. 38 14,65 Assyrian . 6 Asp. 525 — 73 Aste V. Stumore 13 Q. B. D. 326 5 Asp. 175 53 L. J. Q. B. 82 172 Atliol 1 W. Rob. 374 — — 52 Atkinson v. Mayor of Carlisle . 1890, 1 Q. B. 393 — 65L.J.Q.B.331 191 Attorney Gen. v. Ijlewelyn — 58 L. T. 3G7 — 156 Auiiusta . ■ . — G Asp. IGl — 51 Aveuir 9 P. D. 84 5 Asp. 218 53 L. J. Ad. 63 75 Avon r. Thomas Jolifle . 1891, P. 7 G Asp. 605 — 143 Aztees — 3 M. L. C. 326 — 11 i B. Batavier . , BaunivoU Manufactur von Scheibler v. Furness . Beadnell r. Beeson . Beatson v. Skene Beaumaris Castle . . Belkrophon H.M.S. . Bellerophon, H.M.S. Benayo Bengal Benlarig . Bernina (Mills Armstrong) Bernina, C. A. Bernina (repairs, re- ference) . Bertie Beryl Beta . Bianc;t Bilbao Bilbao Black Prince Blessing . Boake v. Stevenson Bold Biicclengh Bonne Amelie . British Commerce Busliire Button r. Thompson 15 P. D. 37 1893, A. C. 8 L. R. 3 Q. B. il 5 H. & N. 838 Not reported L. R. 3 A. & E. 14 14 P. D. 3 13 App. Cas. 1 12 P. D. 58 9 P. D. 137 L. R. 2 P. C. 447 8 P. D. 91 Not reported Lush. 149 Lush. 568 3 P. D. 35 1895, 1 Ch. 358 7 Moo. P. C. 2G7 L. R. 1 A. & E. 19 9 P. D. 128 L. R. 4 C. P. 330 6 Asp. 500 7 Asp. 263 3 M. L. C. 78 1 Asp. 19 2 Asp. 449 3 Asp. 58 316 3 M. L. C. G Asp. 360 6 Asp. 257 G Asp. 75 G Asp. G5 G Asp. 26 5 Asp. 321 20 L. T. (N.S.) 988 5 Asp. 60 1 M. L. C. 5 3 Aap. 561 71 L. T. 722 2 M. L. C. 321 5 Asp. 335 5 Asp. 416 3 M. L. C. 231 59 L. J. Ad. 54 62 L. J. Q. B. 201 37 L. J. Q. B. 171 40 L. J. Ad. 41 44 L. J. Ad. 5 58 L. J. Ad. 24 57 L. J. Ad. 65 55 L. T. 520 53 L. J. Ad. 75 38 L. J. Ad. 50 52 L. J. Ad. 56 64 L. J. Ch. 261 35 L. J. Ad. 115 53 L. J. Ad. 72 52 L. T. 740 38 L. J. C. P. 225 148 128 15 171 65 171 53, 171 132 65,68 11 141, 142 46 136, 137, 138 20 73 46 162 23 44 139 28 155, 156. 117 26 137 48 31 NAMES OF CASES. XV Cairo L.R.4A.&E.184 2 Asp. 257 43 L. J. Ad. 33 11 Canrtda Lush. 580 — 140 Cajiella 1892, P. 70 7 Asp. 158 — 152 Cargo ex Argos. The : Hcwsons L. R. 5 P. C. 134 1 Asp. 519 42 L. J. Ad. 1 6, 40 Cargo ex Sarpedon . 3 P. D. 28 3 Asp. 509 . — 10 Cargo ex Schiller 2 P. D. 145 3 Asp. 439 10, 120 Cargo ex Ulysses 13 P. D. 2(15 6 Asp. 354 58L. J. Ad. 11 19 Cargo ex Venus L. R. 1 A. & E. 50 — 88 Cargo ex Woosung . 1 P. D. 2G0 3 Asp. 239 — 20, 55 Caris brook 38 W. Rep. 543 — — 61 Can- V. Stringer — — El. B. & E. 123 101 Carter v. Rigby 1896, 2 Q. B. 113 — 65 L. J. Q. B. 537 159 Cartsbuni . 5 P. D. 35 4 Asp. 202 49 L. J. Ad. 14 162 Casliraere . 15 P. D. 121 Asp. 515 59 L. J. Ad. 57 100 Castlegate . 1893, A. C. 38 7 Asp. 284 62 L. J. P. C. 17 28, 118, 121 135 Catlicrina Maria L. R. 1 A. & E. 53 _ CelU. 13 P. D. 82 6 Asp. 293 57 L. J. Ad. 55 117 Chalmers v. Scope- nioh 1892, 1 Q. B. 735 7 Asp. 171 61L.J.M.C.117 371 Charkieh . L. R. 4 A. & E. 59 1 Asp. 581 42 L. J. Ad. 17 20 Chartered Mercantile Bank of India v. Netherlands Steam Navigation Co. 10 Q. B. D. 521 5 Asp. 65 52L.J.Q.B.220 48 Cheerful . 11 P. D. 3 5 Asp. 525 55 L. J. Ad. 5 11 City of Berlin . 2 P. D. 187 3 Asp. 491 47 L. J. Ad. 2 154 City of Chester. 9 P. D. 182 5 Asp. 311 53 L. J. Ad. 80 19 City of Lincoln. 15 P. D. 15 6 Asp. 475 59 L. J. Ad. 1 137 City of Manchester . 5 P. D. 221 4 Asp. 261 147, 148 City of Peking . 15 App. Cas. 438 6 Asp. 572 59 L. J. P. C. 88 136, 139 Clan Gordon . 7 P. D. 190 4 Asp. 513 — 47 Clara Killam . L.R.3A.&E.1G1 3 M. L. C. 463 39 L. J. Ad. 50 47 Clarence . 3 W. Rob. 283 — 139 Clyde Swa. 23 — — 136 Clyde Navigation Co. V. Barclay 1 App. Cas. 790 3 Asp. 390 — 51, 176 CoLmial Securities Trust Co. V. Massey ! 1896, 1 Q. B. 38 73 L. T. 497 65 L. J. Q. B. 100 104 Columbus . . . ' 3 W. Rob. 158 — — 136 Consett . . . 1 5 P. D. 77 4 Asp. 230 49 L. J. Ad. 24 150 Constantiue v. War- den 73 L. T. 450 44 W. Rep. 162 163 Constitution 4 P. D. 39 4 Asp. 79 48 L. J. Ad. 13 20 Cook V. Gordon — — 61L.J. Q.B. 445 101 County of Durham . 1891, P. 1 6 Asp. 606 60 L. J. Ad. 5 81 Crescent . 68 L. T. 556 7 Asp. 297 _ 99 Crystal (Arrow Ship- ping Co. V. Tyne Improvement Com- mi.^sioners) . 1894, A. C. 508 7 Asp. 513 63 L. J. Ad. 146 47 C. S. Butler . L.R.4A.&E.238 2 Asp. 408 — 44 Cubison t7..Mayo 1896, 1 Q. B. 246 74 L. T. 65 65 L. J. Q. B. 267 189 Cumbrian . — 6 Asp. 151 57 L. T. 205 12 Cybtle . 3 P. D. 8 3 Asp. 532 47 L. J. Ad. 86 20,55 XVI NAMES OF CASES. Daioz Dalliousie . Dart . . . . Davis V. Flagstaff Silver Mining Co. . Do Bay . Delano (Neptune Steam Nav. Co. v. Sclater) . Diana Dictator . Dictator (master's dis- bursements) . Dixon V. Sir Henry Calcraf t . Doctor van Tliunnen Tellow . Dowse Dragoman. Druid Duke of Buccleugli (inspection by As- sessors) . Duke of Buccleugli (collision) Duke of Buccleugli (jDractice) Duke of Sussex Dwina 1 P. D. 271 1893, P. 33 3 C. P. D. 228 8 App. Cas. 559 1895, P. 40 I.ush. 539 1892, P. 304 1892, 1 Q. B. 458 3 M. L. C. 244 L.R.3A.&E.135 Ship. Gaz. W. S. 1895, p. 327 1 W. Kob. 391 1891, A. C. 310 1892, P. 201 1 W. Rob. 270 1892, P. 58 D, 3 Asp. 477 7 Asp. 353 38 L. T. 769 5 Asp, 156 7 Asp. 523 1 M. L. C. 201 7 Asp. 251 4 Asp. 19 7 Asp. 161 17 W. Eep. 899 3 M. L. C. 424 6 Asp. 471 7 Asp. 08 7 Asp. 294 7 Asp. 173 47 L. J. Ad. 1 149 — 20 62 L. J. Ad. 32 107 47 L. J. C. P. 503 '.59 52 L. J. P. C. 57 19 64 L. J. Ad. 8 7 L. T. N.S. 397 61 L. J. Ad. 73 38 L. T. 947 63, 67, 71, 100, 101,105 30,43 48 27 61 L. J. Q. B. 529 372 39 L. J. Ad. 46 108 5,25 01 L. J. Ad. 57 160, 178, 186 — 52 01 L. J. Ad. 71 22, 153 66 118 178 177 Eclipse 14 P. D. 71 Asp. 409 — 98 Eden 1892, P. 67 7 Asp. 174 61 L. J. Ad. 68 41, 63, 67,71 Edenraore. 1893, P. 79 7 Asp. 334 — 19 Edward Oliver . L.R.1A.&E.379 2 M. L. C. 507 36 L. J. Ad. 13 124 Elin .... 8 P. D. 129 5 Asp. 120 52 L. J. Ad. 55 123 Elizabeth . L. E. 3 A. & E. 33 3 M. L. C. 320 39 L. J. Ad. 53 108 Ella A. Clarke . Br. & Lush. 32 8 L. T. (N.S.) 119 — 24,25 Ellis V. General Steam Navigation Co. 3 Asp. 581 38 L. T. 570 65,68 Elpis L. R. 4 A. & E. 1 1 Asp. 472 42 L. J. Ad. 43 27, 61, 164 Elton 1891, P. 265 7 Asp. 6G GO L. J. Ad. 69 12 Emma (discovery protest) . 2 W. Rob. 315 — — 172 Emma (discovery practice) — 3 Asp. 218 34 L. T. 742 172 Empress . Empress Eugenie L.R.3A.&E.502 Lush. 138 1 Asp. 183 41 L. J. Ad. 32 14 136, 151 Empusa . 5 P. D. 4 Asp. 185 48 L. J. Ad. 36 141 NAMES OF CASES. xvu Enchantress Englishman v. Aus- tralia Englishman v. Aus- tralia (indemnity between tort fea- sors) JEverard v. Kendall . Excelsior . Ex parte Ferguson . Ex parte Michael Lush. 93 1894, P. 239 2 L. T. (N.S.) I 574 I ' I I 7 Asji. 003 1895, P. 212 i 7 Asp. 605 L. R. 5 C. P. 428 3 M. L. C. 391 L.R.2 A.&E.2G8 3 M. L. C. 151 L. E. Q. B. 280 1 Asp. 8 L. 11. 7 q. B. U5S I Asp. 337 63 L. J. Ad. li 64 L. J. Ad. 74 39 L. J. C. P. 234 37 L. J. Ad. 54 40L. J. Q. B.105 17 143, 150 143 3U, 44 47 44 25 I^alcon . . J 3 P. D. 100 Featherstone v. Wil- kinson . Ferguson ■v. Hutchin- son, ex parte Fer- guson . Five Steel Barges . Flower r. Bradley Flying Fish Forest Queen . . L.R.3A.&E.299 Fred . . . . 72 L. T. 153 Freir Friedeberg . . 10 P. D. 112 FuUmnre v. Wait (Gunnested U.Price) L. R. 10 Ex. 65 IFusileer . . . I Br. u. Lush. 341 Fyenoord . . , ' — L. R. 8 Ex. 122 L. R.6 Q. B. 280 15 P. D. 142 Br. & Lush. 436 F. 3 Asp. 566 2 Asp. 31 1 Asp. 8 6 Asp. 580 2 Asp. 489 12 L. T. (X.S.) 619 3 M. L. C. 508 7 Asp. 550 2 Asp. 589 5 Asp. 426 2 Asp. 543 2 M. L. C. 177 3 Asp. 218 47 L. J. Ad. 56 ; 108, 109 42 L. J. Ex. 78 144 40 L. J. Q. B. 105 ! 44 59 L. J. Ad. 77 23 44 L. J. Ex. 1 34 L. J. Ad. 113 23 L. T. N.S. 544 72 L. T. 153 44 L. J. Ad. 49 54 L. J. Ad. 75 45 137 101 74 86 151 44 L. J. Ex. 44 5. 6, 40 34 L. J. Ad. 25 1 10 34 L. T. N.S. 918 109 ■Ganges Ganges (security for costs) . Garnett v. Bradley . Gas Float Whitton, No. 2 . . . Gaudet v. Brown (Cargo ex Argos) . Gazelle General Gordon General Steam Navi- gation Co. r. Lon- don & Edinburgh ShipjDing Co. . Georg George Gordon . Gertrude and Baron Aberdare ■Gilchrist, ex parte ; In re Armstiong . Giles, re . Gilsou r. Kihier ina . Rialto Riga . Rigborgs Minde Rio Lima . Rio Lima . Risca Kisoluto . 2 Stra. 858 10 P. D. 114 1893, P. 255 14 P. D. 131 6 Moo. P. C. 471 12 Q. B. D. 115 25 Q. B. D. 339 1892, 1 Q. B. 273 1894, 2 Q. B. 440 13 Q. B. D. 142 13 Cox, C. C. 154 8 P. D. 115 10 P. D. 131 1891, P. 175 L.R.3A.&E.516 8 P. D. 132 L.R.4A.&E.157 Not reported 8 P. D. 109 R. 5 Asp. 473 7 Asp. 359 6 Asp. 433 70 L. T. 595 5 Asp. 283 6 Asp. 547 7 Asp. 140 5 Asp. 98 5 Asp. 460 7 Asp. 35 1 Asp. 246 5 Asp. 123 2 Asp. 34 2 Asp. 143 5 Asp. 93 54 L. J. Ad. 65 62 L. J. Ad. 18 58 L. J. Ad. 70 53 L. J. Q. B. 28 59 L. J. Q. B. 427 61 L. J. Q. B. 337 53 L. J. Q. B. 423 52 L. J. Ad. 49 54 L. J. Ad. 72 60 L. J. Ad. 71 41 L. J. Ad. 39 52 L. J. Ad. 74 43 L. J. Ad. 4 52 L. J. Ad. 46 30 12 105, 154, 155 128 52 177 41 31 6, 42, 45, 158 196 5,66 132 10 47 11 25, 26 150 85 85 132 140 NAMES OF CASES. XX 111 Eiver Lagan . River Wear Commis- sioners V. Adamson Robert Dixon . Robson V. Owners of the Kate Rockett V. Clipping- dale Rodocanaclii v. Mil- burn Rona Rosario Ross V. Walker . Royal Charter . Ruby 2 App. Cas. 743 5 P. D. 54 21 Q. B. D. 13 1891, 2 Q. B. 293 18 Q. B. D. 67 7 P. D. 247 2 P. D. 41 2 Wils. 264 L.R.2A.&E.362 15 P. D. 164 6 Asp. 281 3 Asp. 521 4 Asp. 246 6 Asp. 330 64 L. T. 641 6 Asp. 100 4 Asp. 520 3 Asp. 334 3 M. L. C. 262 6 Asp. 577 57 L. J. Ad. 28 1 150 47L. J. Q.B.I 93 47 — j 22, 152 57 L. J. Q. B. 546 45 60 L.J. Q.B.782'l4, 64 50 L.J. Q.B.202 143,144 51L. J. Ad. 65 41,42 46 L. J. Ad. 52 i 18 — 1 30 38 L. J. Ad. 36 1 149 63 L. T. 735 1 149 S. St. Kilda . Salacia Saltburn . Samuel Laing . Sapphire . Sara .... Savage v. Adams Schwalbe . Schwan (costs) . Schwan (inevitable accident) Scovell V. Bevan Selina Seraglio . Sherbro . Silesia Simpson v. Blues Sir Chas. Napier Sir Henry Constable's Case Sisters Skipwith . Smith, re, Rigg v. Hughes . Smith & Co. V. Bedouin Steam Navigation Co. Smith V. Baker Smith V. Brown Smith, Edwards & Co. V. Tregarthen Smith V. Gill . Smurthwaite v. Han- nay Sociedade Felix Solway Sophie Sorrento .. Sliip. Gaz. W. S. 1894, p. 422 Lush. 545 1892, P. 333 L.R.3A.&E.284 Not reported 14 App. Cas. 209 W.N. (95) 109, 11 Swa. 521 L.R.4A.&E.187 1892, P. 419, 427 19 Q. B. D. 428 2 Notes of Cas. 18 10 P. D. 120 5 P. D. 177 L. R. 7 C. P. 290 5 P. D. 73 5 Rep. 106a 1 P. D. 117 10Jur.(N.S.)445 9 P. D. 68 1896, A. C. 70 1891, A. C. 325 L. R. 6 Q. B. 729 W. N. (96) 68 (2) 1894, A. C. 494 lNote8ofCa8.286 10 P. D. 137 1 Notes of Cas. 393 Ship. Gaz. W. S., 1895, p. 439 1 M. L. C. 261 7 Asp. 474 3 M. L. C. 463 6 Asp. 413 2 Asp. 259 7 Asp. 347 56 L. J. Q. B. 604 5 Asp. 421 5 Asp. 88 4 Asp. 338 1 Asp. 326 4 Asp. 231 3 Asp. 122 2 ai. L. C. 20 32 L. J. Ad. 41 71 L. T. 19 39 L. J. Ad. 42 58 L. J. Ad. 57 30L.T.(N.S.)537 56 L. J. Q. B. 604 65 124, 125 19, 65, 152 107 109 120 104 135 149 148 5,66 123, 124 54 L. J. Ad. 76 86 52 L. J. Ad. 28 ' 126 50 L. J. Ad. 9 1 152 41 L.J. C.P.I 21 5,40 49 L. J. Ad. 23 42 45 L. J. Ad. 39 10L.T.(N.S.)43 50 L. T. 293 53 L. J. P. 62 65 L. T. 467 1 Asp. 56 6 Asp. 137 7 Asp. 485 5 Asp. 482 1 W. Rob. 368 60 L. J. Q. B. 683 40L, J. Q. B.214 56 L. J. Q. B. 437 63 L. J. Q. B. 737 54 L. J. Ad. 83 148 27 156 177 101 46 144 109 159 135 135 26 28 XXIV NAMES OF CASES. Southwark Water Co. V. Quick 3 Q. B. D. 315 38 L. T. 28 47 L. J. Q. B. 258 171 Spaiglit V. Tudcastle G App. Gas. 217 4 Asp. 40G 44 L. T. 581 22 Speed 2 W. Rob. 225 — — 73 Speller v. British Steam Navigation Co. . . . 13 Q. B. D. 9G 5 Asp. 228 53 L. J. Q. B. 322 162 Spree 1893, P. 147 7 Asp. 397 69 L. T. 628 152 Star of India . 1 P. D. 4GG 3 Asp. 2G1 45 L. J. Ad. 102 138, ISS^ Star of Persia . — G Asp. 22 — 12 Steel V. Lester & Lilee 3 C. P. D. 121 3 Asp. 537 47 L. J. C. P. 43 128 Stella L.R.1A.&E.340 2 M. L. C. 505 36 L. J. Ad. 13 15 Stoomvaart Maats- cliappv Xederlaud V. P. '& 0. Steam Navigation Co., The Khedive. 7 App. Cas. 795 4 Asp. 5G7 52 L. J. Ad. 1 142, 17» Strath gai-ry 1895, P. 264 7 Asp. 573 64 L. J. Ad. 59 161 Sfrathnaver 1 App. Cas. 58 3 Asp. 113 — 22 Stumm V. Dixou 22 Q. B. D. 529 60 L. T. 560 58L.J.Q.B.183 150 Sugg V. Silber . 1 Q. B. D. 3G2 34 L. T. (N.S.) G82 45 L. J. Q. B. 460 73 Sunniside . S P. D. 137 5 Asp. 140 52 L. J. Ad. 76 19 Sutton V. L. C. & Dover Kailway Co. Times newspaper, Mav 19, 189G — — 177 Swallow, H.M.S. . Swa. 30 — 52, 53 Swallow . — 3 Asp. 371 36 L. T. 231 110 Swan L.R.3A.&E.314 23 L. T. (N.S.) 633 4 Asp. 115 40 L. J. Ad. 8 61 Swansea v. the Condor 4 P. D. 115 48 L. J. Ad. 33 148, 14» Swift 1 Dod. 320 — — j 56 Sylph L. R.2A.&E.24 3 M. L. C. 37 39 L. J. Ad. 14 1 46,47 1 Tasmania . Tenant v. Ellis . Teresa Thames . Theodor Kurner Tlieta Tliracian . Tliorogood V. Bryan . Thuringia Thyatira . Thyatira (conse- ijuental damage) . Ticoiideroga Tiiidall V. Bell . 'I'indle v. Davison Turliani . Two Brothers . Two Ellens Tvnwald . (13P. D. 110 G Q. B. D. 46 71 L. T. 342 32 L. T. (N.S.) 343 3 P. D. 162 1894, P. 280 L.R.3A.&E.504 8 C. B. 115 41 L. J. Ad. 20 8 P. D. 155 49 L. T. 713 Swa. 215 11 M. & W. 228 ! 06 L. T. 372 1 32 L. T. (N.S.) 841 1 1 P. D. 52 L. R. 4 P. C. 161 1895, P. 142 T. 6 Asp. 305 7 Asp. 505 2 Asp. 512 4 Asp. 17 7 Asp. 480 1 Asp. 207 1 Asp. 283 5 Asp. 147 5 Asp. 178 7 Asp. 169 2 Asp. 603 3 Asp. 99 1 Asp. 208 7 Asp. 539 57 L. J. Ad. 49 50 L. J. Q. B. 143 44 L. J. Ad. 23 47 L. J. Ad. 85 63 L. J. Ad. 160 41 L. J. Ad. 71 18 L. J. C. P. 336 41 L. J. Ad. 44 52 L. J. Ad. 85 118 14,64 97, 157 148 171 46 151 141 137 47 140, 141 US 137 61 L. J. M. C. 107 28 — 26, 85 45 L. J. Ad. 47 360 41 L. J. Ad. 33 24, 25, I 126 64L. J. Ad. 1 171,101 NAMES OF CASES. XXV Undaunted Undaunted cient tug) Union Urania Utopia (inefiS- Lush. 90 11 P. D. 4G Lush. 128 1893, A. C. 492 U. 2 L. T. (N.S.) 520 5 Asp. 580 3 L. T. (N.S.) 2S0 1 M. L. C. 156 7 Asp. 408 55 L. J. Ad. 24 30 L. J. Ad. 17 5 L. T. (N.S.) 402 G2L. J. P. C. 118 11 22 124 45 118 Vera Cruz . Viatka Vicksberg . Victor Victor Covacevicli Victoria . Victoria (limit of liability) Volant 10 App. Cas. 59 5 Asp. 38G 54 L. J. Ad. 9 46 Ship. Gaz. W. S. — — 73 1884, p. 774 Mit. Mar. Reg., — — 22 Mar. 12, 1873 Lush. 72 2 L. T. (N.S.) 331 29 L. J. Ad. 110 48 10 P. D. 40 5 Asp. 417 54 L. J. Ad. 48 178 12 P. D. 105 5 Asp. 120 56 L. J. Ad. 75 48 13 P. D. 125 6 Asp. 335 57 L. J. Ad. 103 142 1 W. Rob. 383 — — 45 w. Ward?;. Wyld . 5 Ch. D. 779 37 L. T. 68 — 60 AVarwick . 15 P. D. 189 6 Asp. 545 45,47 Wataga Swa. 165 24 "Watson V. White L. T. Newspaper vol ci., p. 85 — — 156 Washington Not reported — — 131 Waverley . L.R.3A.&E.369 1 Asp. 47 40 L. J, Ad. 42 23 Webster v. Seekamp . 4 B. & Aid. 352 — — 25 Welch, Perrin v. Anderson 66 L. T. 442 7 Asp. 177 61 L. J. Q. B. 167 144 Wells V. Osman 2 Ld. Raymond, 1044 2 Mod. 238 — 31 Westbourne 14 P. D. 132 6 Asp. 405 58 L. J. Ad. 78 11,23 West Friesland Swa. 454 26 Westrup V. Great Yarmouth Steam Carrying Co. . 43 Ch. D. 241 6 Asp. 443 59 L. J. Ch. Ill 121 Willem III. L.R.3A.&E.487 1 Asp. 129 25 L. T. (N.S.) 386 10 WilhelmTell . 1892, P. 337 7 Asp. 329 61 L. J. Ad. 127 18,19, William v. John Br. & Lush. 49 1 M. L. C. 311 32 L.J. Ad. 102 152 13, 15 William Hutt . Lush. 25 2 L. T. (N.S.) 697 — 161 William Symington . 10 P. D. 1 5 Asp. 293 54 L. J. Ad. 4 151, L Winston .' 9 P. D. 85 5 Asp. 274 53 L. J. Ad. 69 371 AV right V. Letbbridge — 6 Asp. 558 63 L. T. 572 53 XXVI NAMES OF CASES. Yan Yean , .18 P. D. 147 Y 5 Asp. 135 52 L J Ad. 67 1 152 Zeta (Mersey Dock j & Harbour Board 1 V. Turner) , . 1 1893, A. C. 468 Zeus . Zoe . .!13P. D. 188 .IIP. D. 72 7 Asp. 369 6 Asp. 312 5 Asp. 583 63 L. J. Ad. 17 i 42,43,45^ I 46,47,65 59 L T. 344 41 55 L. J. Ad. 52 1 53, 54 TABLE OF ABBREVIATIONS. 18 — A. C, or 18 — App. Cas. Law Eeports Appeal Cases, subsequent to 1891, 1, 2, &c., to 15, A. C, or App. Cas. Law Eeports Appeal Cases, from 1875 to 1891. Asp. Aspinall's Maritime Law Cases. B. & Aid, Barnewall and Alderson's Reports. Br. & Lush. Browning and Lusliington's Reports. C. B. Common Bench Reports, or Blauning, Granger, and Scott's Reports. C. B. (N". S.). Common Bench Reports (New Series). C. C. Ad. Jur. Act. County Court Admiralty Jurisdiction Act. C. C. Ad. Jur. Amend. Act. County Court Admiralty Jurisdiction Amendment Act. C. C. Act. County Court Act. C. C. R. County CJourt Rules. 18 — Ch. Law Reports, Chancery Division, since 1891. Ch. D. Law Reports, Chancery Division, from 1875 to 1891. Cox, C. C. Cox's Criminal Cases. C. P. D. Law Reports. Common Pleas Division. C. Rob. Christopher Robinson's Admiralty Reijorts. Dod, Dodson's Reports. El. B. & E. Ellis, Blackburn, and Ellis's Reports. Hagg. Haggard's Admiralty Reports. H. & N. Hurlstone and Norman's Reports. Jur. Jurist Reports. Jur. (N. S.). Jurist (New Seiies). Kay & J, Kay and Johnson's Reports. Knapp. Knapp's Reports. L. J., Ad, Law Journal Reports, Admiralty. L. J., Ch. Law Journal Reports, Chancery. L. J., C. P. Law Journal Reports, Common Pleas. L. J., M. C. Law Journal Reports, Magistrates' Cases. L. J., P. C. Law Journal Reports, Privy Council. L. J., Q. B. Law Journal Reports, Queen's Bench. L. R., A. & E, Law Reports, Admiralty and Ecclesiastical. L. R., C. P. Law Reports, Common Pleas, L. R., Ex, Law Reports, Exchequer. L. R., H. L. (Sc. & D.). Law Rei^orts, House of Lords (Scotch and Divorce). L. R., Q. B. Law Reports, Queen's Bench. L. R., P. C. Law Reports, Privy Council. L. T.- Law Times Reports (New Series), subse- quent to vol. XXXV, XXVlll TABLE OF ABBREVIATIONS. L. T. (N. S.). L. T. Newspaper, Ld. Raymond. Lush. M. &. W. M. S. Act. M. S. Amend. Act. 3Iit. Mar. Reg. Mod. Moo. P. C. Notes of Cas. 18— P. P. D. 18— Q. B. Q. B. D. R. Rep. (1, 2, etc.). R. S. C. Ship. Gaz. W. S. Spinks. Stra. S. C. J. Swa. W.N. W.H. IV. Rob. Wils. Act. Law Times (New Series), prior to vol. xxxv. Note. — Vol. i. (New Series), corresponds v\ ith vol. xxxv. (Old Series) ; therefore numbers above xxxv. are merely cited in these pages as L. T. Law Times Newspaper. Lord Raymond's Reports. Lushington's Admiralty Reports. TMeeson and Welsby's Reports. Merchant Shipping Act. Merchant Shipping Amendment Act. Mitcliell's Maritime Register. Note. — Cited since July 4, 1884, as Shipping Gazette. Modern Reports. Moore's Privy Council Cases. Notes of Cases in the Ecclesiastical and Maritime Courts. Law Reports, Probate, Divorce, and Ad- miralty Division, since 1S9I. Law Reports, Probate, Divorce, and Ad miralty Division, from 1875 to 1891. Law Rejiorts, Queen's Bench Division, since 1891. Law Reports, Queen's Bench Division, from 1875 to 1891. The Reports. Coke's Reports. Rules of the Supreme Court. Shipping Gazette Weekly Summary. Spinks's Ecclesiastical and Admiralty Reports. Strange's Reports. Supreme Court of .Judicature Act. Swabey's Admiralty Reports. AVeekly Notes. Weekly Reporter. William Robinson's Admiralty Reports. Wilson's Reports. INTEODUCTION. Though the Admiralty jariscliction in its present form, has only been conferred upon the county courts by the statutes which form the subject of this treatise^ yet from a very early period of English History there have been certain Admiralty jurisdictions in England,, some granted by charter and of co-ordinate authority with the High Court and exclusive of it within cer- tain territorial and maritime limits, others of inferior jurisdiction either as to the questions to be entertained;, or in the sense that the High Court had jurisdiction over the same place both original and appellate. All of these, however, with the single exception of the Court of Admiralty of the Cinque Ports were swept away by the Municipal Corporations Act, 1834 (5 & 6 Will. IV. c. 7G, § 108). There also were Vice- Admiralty jurisdictions appur- tenant to the vice-admirals of the various counties or districts ; these may, indeed, be taken to have been county courts of Admiralty, but for some reason — probably from the difficulty of getting qualified judges to undertake the duties where the pay would necessarily be small, and the risk of being proceeded against personally in courts of common law for injuries alleged to have been sustained from their judgments, which, as the courts were not courts of record, was considerable — XXX INTRODUCTION. they appear to have fallen into disuse even before the Municipal Corporation Act abolished those with charters. It is very difficult to find anything relating to their practice, which was probably very irregular, though they seem to have been in existence as recently as 1802 (Brown, Ad., 490). It may, however, be interesting to draw attention to some of those which have existed. Amongst the first class — those which obtained juris- diction by charter — that of which most is known is the Court of Admiralty of Great Yarmouth ; it appears to have existed at a time antecedent to the reign of Edward III. (Snowden's " History of Yarmouth," p. 655), but with very indeterminate rights. In the reign of Henry VII. it was recognized as having all the rights and privileges of the Lord High Admiral within its territorial limits, but in 6 Edward VI. the Lord High Admiral claimed his perquisites within those limits, and the claim was allowed. The cor- poration applied to Queen Mary for a charter, but failed to get one ; they were more fortunate with Queen Elizabeth, who, on the 26th of May, 1559, by charter granted that the Court of Admiralty at Great Yarmouth should be a Court of Record, that it should have all the jurisdiction of the High Court, except as to piracy, and that it should be held every Monday, that its jurisdiction should extend seven " leuks " (leagues) seaward. There being, how- ever, no defined limits northward or southward along the coast, difficulties were constantly arising between the corporation and the Vice-Admiral of Norfolk and Suffolk, which difficulties were apparently compounded by an annual present or tribute of fish until 1608, in which year Lord Nottingham, at that time Lord High Admiral, was induced to surrender to the king INTRODUCTIOX. XXXI {James I.) his jurisdictions and rights over the coast between Winterton Ness and Exton Ness, and for seven leuks (leagues) out. The jurisdiction so surrendered was in the same year granted to the Corporation of Yarmouth by a charter, in which no reservation as to piracy is contained. The jurisdiction was confirmed at the Restoration (15 Charles II.) by another charter, and further confirmed by statute and charter in the reign •of Queen Anne, A.D. 1702. This being a court having exclusive Admiralty jurisdiction, the appeal lay from it direct to the delegates. The last Admiralty sessions for criminal offences seems to have been held in 1823, but apparently it exercised a civil jurisdiction even more recently, a case on appeal (the JFilliam and Mar]i) from it having been before the delegates in 1824. At Ipswich an Admiralty or Maritime Court was held from " tyde to tyde " from the reign of Edward I., the rules of which are given in " Le Domesday De Gippewyz," a copy and translation of which is printed in " Monu- menta Juridica," the " Black Book of the Admiralty," •edited by Sir Travers Twiss, vol. ii. 16. Bristol was exempted from the jurisdiction of the ■admiral and his lieutenant, and an Admiralty com- mission was to be granted to the mayor, etc., when necessary under a charter of 1 Ed. IV. (14G1), which was confirmed by six other charters in dift'erent reigns — each probably obtained by a sort of fine on renewal — before the Rebellion, and again renewed after the Restora- tion by a charter, 10 Charles II. (lOGi). In consequence of an irregularity in it, proceedings Avere taken against the mayor, etc., and the charter was surrendered and a new one granted (1(383-1684), which was further confirmed, 9 Anne (1710). The borough of Poole had an ancient Admiralty juris- •diction, the records of the court going back to 1550, XXXll INTRODUCTION. but this had fallen into disuse, except for the purpose of presentments concerning obstructions, etc., in the harbour. It apparently included all the waters within Poole harbour, and extended along the coast outside from Bollard Head on the west to Bournemouth on the east ; its seaward limit was ascertained in a curious manner. " The jury (of shipmasters and pilots) who are sum- moned from time to time in the Admiralty Court are in the habit of proceeding down Poole harbour to its entrance. Upon arriving at North Haven Point, the water-bailiff, with several of the jurymen, go off to sea in a sloop, and when they have found out certain old marks or bearings, they put a Humber barrel out of the vessel, and lay it floating on the water. The Humber barrel is placed at a point where it is supposed that it can be descried by the naked eye from North Haven Point, and from a neighbouring sandbank, passing by the name of Horse-manger. It is the practice for the remainder of the jury to stand at one or other of these points ; the distance at which the Humber barrel is thus seen is nearly three miles " (Heport on Municipal Corporations, 1835, part ii. p. 1319). The town of Southampton had an Admiralty juris- diction granted in 23 Henry VI., which extended over Lymington to the west, and Portsmouth to the east, and the last charter granted (16 Charles I.) recites that the Lord High Admiral has co-ordinate jurisdiction, and that an appeal lies to the High Court of Admiralty from the decisions of the local Admiralty Court. In 1708 there appears to have been a dispute as to the jurisdiction over Portsmouth harbour, between the Mayor of Southampton and the Duke of Bolton, who probably was vice-admiral of the county; no courts seem to have been held since 1756, though the mayor. INTRODUCTION, XXXlll up to a recent date, if indeed he does not still do so, exercised many of the functions, and claimed the rij^hts pertaining to the Admiralty in its administrative branch (Report, Municipal Corporation, 1835, part ii. p. 884). Newport, in the Isle of Wight, had an Admiralty jurisdiction exercised by the mayor, which apparently was concurrent with that of the Vice-Admiral of the Island, an honorary office now filled by the commodore of the Royal Yacht Squadron (Report, Municipal Cor- poration, pp. 777, 783, 784). The relics of this juris- diction still hamper improvements in Cowes harbour {Times, March 25, 1895, p. G). Amongst other towns which have had a more or less extensive Admiralty jurisdiction by prescription or Charter, may be mentioned Kingston-on-Humber (Hull) in Yorkshire, a suit for necessaries in which court is reported (Litt. Rep. 16G, Vin. Abr. 513), Boston in Lincolnshire, King's Lynn in Norfolk, Dunwich and Southwold in Suffolk, and Harwich and Marldon in Essex. As lately as 1821 (1 & 2 Geo. IV. c. 75, § 24> Admiralty Courts at Yarmouth, Dunwich, Southampton, Southwold, and Lyme Regis, were recognized as existing, and their jurisdiction safeguarded ; but in 1846 (9 »k: 10 Vict. c. 99, §§ 21, 40), after the passing of the Municipal Corporation Act, 1834, the jurisdiction of these courts in salvage was otherwise disposed of, and the courts themselves are not mentioned. The Vice- Admiralty jurisdiction of counties and dis- tricts, as distinguished from that of boroughs, seems in no case to have been acquired by charter, but always to have been derived from the Lord High Admiral, the admiral of the Cinque Ports, or the admiral of the north or west. The first mention of such an official as a vice-admiral is in A.D. 1337. The following definition is taken from. IKXXIV INTRODUCTION. Falconer's " Marine Dictionary," by Burney. He is " a civil officer appointed by the Lords Commissioners of the Admiralty. There are several of these officers established in different parts of Great Britain, with judges and marshals under them for executing juris- diction within their respective districts. Their decisions, however, are not final, an appeal lying to the Court of Admiralty, London." The same book, in its description of the Admiralty Court, says, " There are likewise courts of an inferior nature held by the vice-admirals deriving their appointment from the supreme courts within their jurisdictions, and an appeal lies from their decisions to the supreme court." This right of appeal is further shown by a work of great authority on the ancient practice of the court : " Ab omnibus sententiis definitivis decretisque interlocutoriis gravaminibus per quoscunque judices civiles particulares sen vice-admirallos in quibus- cunque partibus hujus regni latis licet appellare ad lionorandum dominum magnum Anglia3 admirallum €J usque supremam curiam admiralitatis et egregium virum Prsesidentem Judicem seu locum tenentem quemcunque ejusdem Curia3. Judex enim hujus Curiae habet cognitionem causarum appellationum hujus modi" (Clerke's Praxis, Tit. 56). Sir Leoline Jenkins, the celebrated judge of the Admiralty Court in the reign of Charles II., in a reply for a request for information from a vice-admiral (Hon. Mr. B.), apparently as to the validity of an extortionate agreement to render salvage services, and also as to the ■fluties and emoluments of the office of vice-admiral, says : " A vice-admiral is plainly such another officer with relation to the sea," as a justice of the peace on shore, " and under the same oblig^ations as those at land ; that is, represents the king's part in preserving his sub- jects and allies from violence, most especially in their INTRODUCTION. XXXV distresses. Yet in some things every vice-admiral will confess that he hath a bettor prospect to a lucky hit than a justice of peace at land hath. Besides, vice- admirals in England in ancient times, being persons of great figure in their country, used to lay out themselves and their pains for saving the king's subjects, their allies and their goods respectively, as men that were appointed to relieve the miseries of strangers, and that regard the peace, the honour, and the justice of the nation" (" Life of Sir Leoline Jenkins," Wynne, vol. ii. p. 718). From the same letter it appears the vice-admirals were in the habit of acting by deputy, as Sir L. Jenkins advises his ■correspondent to get rid of his deputy as soon as pos- sible, apparently for being in some way a party to the extortionate agreement already mentioned. From another letter of the same judge to Mr. Pepys, the well-known diarist, it appears that the office of vice- .admiral might legally be held by a clergyman, though Sir L. Jenkins thinks it undesirable, because of the criminal jurisdiction; from which we learn incidentally that the vice-admiral must still have been in the Admiralty commission of Oyer and Terminer, when ■offences on the high seas were to be tried in his county (Ibid. vol. ii. p. 703), as directed by 28 Henry VIII., cap. 15, and such obviously was the case in Queen Elizabeth's reign, when one Butler was remitted by the judges from the Norfolk Assizes to be tried for piracy by the Vice-admiral of Norfolk and Suffolk (Vin. abr. 'Court of Adm., B. 2, § 1). The jurisdiction exercised from time almost imme- morial by the Court of Admiralty of the Cinque Ports, must not be confused with the vice-admiralty juris- dictions above mentioned, as it was, and still is, at least <30-ordinate with, and in some respects within its terri- ftorial limits superior to that of the High Court {The XXXvi INTRODUCTION. Lord Warden and Admiral of the Cinque Ports v. H. M^ in his office of Admiralty, in the matter of a ivhale, 2 Hagg, 438, 443). The office of the jadge of this court, which, -until the passing of the Judicature Acts (S. C. J. Act, 1873, § 8), was held by the then judge of the High Court of Admiralty, Sir R. Phillimore, has since that time been and still is held by Arthur Cohen, Q.C. ; but as the emolu- ment is extremely small, and the court has never by Act of Parliament been constituted a Court of Record, its sittings are infrequent. There is, however, a case in it reported as recently as 1882 {The Marie, 7 P. D. 203),. and there have been from time to time cases tried in it since that date; as, moreover, its procedure has not been affected by recent legislation, the appeal still lies from it direct to the Privy Council, and an appeal to it if desired is expressly preserved by the County Court Admiralty Jurisdiction Act, 1868, § 33. Since writing the above a great deal of most interest- ing fresh information with regard to the ancient history of courts of Admiralty and Vice-Admiralty has been collected by Mr. Marsden, and is being published by the Selden Society. As regards Admiralty jurisdiction generally, the dis- pute between the court of the admiral and his lieu- tenant and deputies proceeding by the rules of civil law and the ordinary royal courts proceeding by the common law, have lasted almost since English history began, and, according to a recent dictum of the Master of the Rolls, has not yet completely terminated {Turner V. Mersey Dock and Harbour Board, 1892, P. 285); but, without going into detail, it may be said that, except for a brief period under the Commonwealth,, the courts of common law had decidedly the best of the dispute, not perhaps always in point of logic. INTRODUCTION. XXXVU but from the exercise of the potent weapon of pi-o- hibition. In vain did the Court of A within the limits of the United Kingdom," contained in sec. 458, sec. 546. TM. S. Act, 1854, included the case of a vessel not actually ■stranded, but in distress in the vicinity of the shore within the limits of the United Kingdom. Sec. 54(5 of M. S. Act, 1894, seems to be remodelled in accordance with these cases. Sec. 544, sub-s. (2), provides that salvage in respect of the '!|;'°^''|>' ^^^ preservation of life, Avhen payable by the owners of the vessel, under sec! «hall be payable in priority to all other claims for salvage. 5*4, sub-s. 10 ADMIRALXr JURISDICTION IN COUNTY COURTS. Life sal- vage created iind limited by statute. Some pro- perty must have been saved. Owners of cargo liable for. Even when no property saved by life salvors them- selves. Passengers' wearing iipparel ])rivileged from arrest. Life salvage can only be awarded when the services have been rendered within the limits defined in the Acts ; where services were rendered in saving life from a foreign ship not wholly or in part in British water?, no life salvage was awarded (The Johannes, Lush. 182 ; The Willem III., L. K. 3 A. & E. 487), but see sec. 545, p. 7. No salvage can be recovered for services rendered in saving life unless some property has also been saved (The Cargo ex Sarpedon, 3 P. D. 28, 3 Asp. 609; The Benpor, 8 P. D. 115, 5 Asp. 98), except under sec. 544, M. S. Act, 1894, which provides — " Subs. (3) Where the vessel, cargo, and apparel are destroj^ed, or the value thereof is insufficieut, after payment of the actual expenses incurred, to pay the amount of salvage payable in respect of the preservation of life, the Board of Trade may, in their discretion, award to the salvor out of the Mercantile Marine Fund such sum as they think fit in whole or part satisfaction of any amount of salvage so h ft unpaid." But sub-s. (2) of the same section, which enacts that life salvage, when payable by the owners of the vessel, shall be payable in priority to all other claims for salvage, does not exempt the owners of cargo from liability to pay life salvage {The Fusilier, Br. & Lush, 341, 2 M. L. C. 177), even when the property has been saved by the exertions and at the expense of the cargo owners themselves [The Cargo ex Schiller, 2 P. D. 145, 3 Asp. 439). But when a claim was brought by life salvors against the owners of a vessel, which had been sunk in the Thames by a collision for which she was not to blame, and had been raised by the Thames Conservancy and sold by them for an amount insufficient to pay the expenses of raising, and the owners had recovered the value of the ship from the wrong- doing vessel, together with the deficit they had been compelled to pay the Thames Conservancy, it was held no property had been saved to which the claim for life salvage could attach (The Annie, 12 P. D. 50, 6 Asp. 117). In The Willem III (L. E. 3 A. & E. 487, 1 Asp. 129), it was held that passengers' wearing apparel and other effects carried by them for their personal use wore privileged from arrest, and were not liable for life salvage. The words " the lives of the persons belonging to such ship," which were used in the M. S. Act, 1854, were construed in The Fusilier (Br. & Lush. 341, 2 M. L. C. 177) to include LIFE SALVAGE. 11 passengers, aud in The Cairo (L. E. 4 A. & E. 184, 2 Asp. 257) to include members of tlie crew, who had left the ship wiihout orders, but in a case of danger. The words of the M. S. Act, 1894, sec. 544, are '"in saving life" simply. With regard to ordinary salvage, as distinguished from life ^'o salvage o JO' • • At, unless salvage, the general principle is that, however meritorious tnc ]jenefit exertions of salvors may be, they are not entitled to salvage accrues. reward unless some benefit has been conferred on the owners of the property (The India, 1 W. Eob. 40 G ; The Cheerful, 11 P. D. 3, 5 Asp. 525 ). But when salvors are engaged to do their best or some l^'^^^ptin specified thing by a ship in distress, they are entitled to some Jjgreement, reward, although their services have not, in fact, proved beneficial to the ship {The Undaunted, Lush. 90 ; The Benlarhj, 14 P. D. 3, (3 Asp. 360 ). In The Melpomene (L. E. 4 A. & E. 129, 1 Asp. 515) signals or^wher^ of distress were held to be a sufficient engagement, and now an ^'.S°^^ ess are exhibition of signals of distress entitles a person answering shown, them to compensation for his trouble and expense from the J^^-^S. Act, master of the ship exhibiting them, which compensation can be 434/ recovered as salvage is recoverable (M. S. Act, 1894, sec. 434). In two cases where the salving ship had agreed to " attempt to " or " endeavour to " tow the other ship, but after making the attempt had failed and left the ship in a worse position than she was originally, it was held that nevertheless the salving ship was entitled to some reward on the contract, although on a less scale than ordinary salvage ( The Benlarig, 14 P. D. 3, G Asp. 3G0; The Lejxmto, 1892, P. 122,7 Asp. 192). When an af^reement has been made to tow a vessel for a Towage ° 1 • i.1 J. ^<. converteij fixed sum, if circumstances supervene making the contract ^^^.^ g^j_ impossible of performance, the towing vessel may yet claim vage. salvage for services actually rendered {The Aztecs, 3 M. L. C. 326;^ The Westhourne, 14 P. D. 132, G Asp. 405). When the agreement which has been entered into appears to Extor- tioDfitc the court to have been made whilst the parties were not on ^^^.^^^^^^^ equal terms, and for a sum which is unreasonable, it will set set aside aside the agreement and award such an amount of salvage as it thinks just {The M:. -,4 ^^^ the M. S. Act Amend. Act, tion. lion l respect of salvage services rendered in the United Kingdom has been finally determined, either summarily in manner provided by this Act or by agreement, and does not exceed two hundred pounds, but a dispute arises as to the apportionment theieuf among several claimants,^ the person liable to pay the amount may apply to the receiver for liberty to pay the ?ame to him ; and the receiver shall, if he thinks fit, receive the same accordingly, and shall grant to the person paying the amount a certificate of the amount paid and of the services in respect of which it is paid, and that certificate shall be a full discharge and indemnity to the person by whom the money is paid, and to his vessel, cargo, apparel, and effects against the claims of all persons whomsoever in respect of the services mentioned in the certificate. "(2) The receiver shall with all convenient speed distribute any amount received by him under this section among the persons entitled to the same on such evidence, and in such shares and proportions, as he thinks fit, and may retain any money which appears to him to be payable to any person who is absent. " (3) A distribution made by a receiver in pursuance of this section shall be final and conclusive as against all persons claiming to be entitled to any portion of the amount distiibuted. " 556. Whenever the aggregate amount of salvage jiayable in respect of salvage service rendered in the United Kingdom iias been finally ascertained, and exceeds two hundred pounds, and whenever the aggregate amount of salvage payable in respect of salvage services- rendered elsewhere has been finally ascertained, whatever that amount may be, then, if any delay or dispute arises as to the apportionment thereof, any court having Admiralty jurisdiction may cause the same to be apportioned amongst the persons entitled thereto in such mannei' as it thinks just, and may for that purpose, if it thinks fit, appoint any person to carry that apportionment into effect, and may compel any person in whose hands or under whose control the amount may be to distribute the same, or to bring the same into court to ba dealt with as the court may direct, and may for the purposes aforesaid issue such processes as it thinks fit." County In The Glannihanta (2 P. D. 45, Asp. o39) it was held that court t]jg county courts having Admiralty jurisdiction have juris- tion to'^ diction to entertain suits for distribution of salvage, both apportion, under sec. 3 of C. C. Ad. Jur. Act, 1868, and also under sec. 498 M. S. Act, 1854 (for which sec. 556 M. S. Act, 1894, has SALVAGE ArPORTIOXMENT. 17 HOW been substituted). The court will apportion, unless barred by an equitable agreement or an equitable tender (T/^e En- <'liantrcss, Lusb. 9.'>). Where a bond by way of security bad been given to the Doubtful •receiver under sec. 468, M. S. Act, 1854 (now sec. .552, M. S. J' Jur'sdic- Act, 1894), it was held a matter of grave doubt it the county enforce •court under its Admiralty jurisdiction had power to enforce ^>on^- ihe bond, and leave was given to proceed in the Admiralty CJourt, but at the peril of costs under sec. 9 of the C. C. Ad. Jar. Act, 1868, which at that time was in force (Tlir Johu Evans, 2 Asp. 234). On security being given, the receiver has power to release the property, and the jiarties cannot claim to arrest under the Admiralty rules (2Vj)ortionment, a plea of an assignment of assignment salvage for valuable consideration from seamen to their owners was held bad on demurrer (The Eosario, 2 P. D. 41, 3 Asp. oo-i:). Where solicitors, authorized by seamen to act for them, agreed to accept a sum in settlement of the salvage claim, such an agreement was held not to be void, especially as there was nothing extravagantly wrong in the amount so paid [The AfriJca, 5 P. D. 192, -t Asp. 266). Sec. 212, M. S. Act, 1894, which reproduces part of sec. 235 of the M. S. Act, 1854, provides — • "212. Subject to the provisions of this Act, an assignment or sale of salvage payable to a seamati cr apprentice to the sea service made prior to the accruing thereof shall not bind the person making the same ; and a power of attorney or authority for the receipt of any such salvage shall not be irrevocable." Agreement under sec. 156, M. S. Act, 1894, need not be in writing-. Fishing agreement. This section does not appear to have had any decision upon it. It makes an assignment or sale of salvage prior to the accruing thereof voidable, whereas sec. 156 makes the abandonment of the right to salvage void. Neither the agreement that the ship is to be employed on salvage service, nor the stipulation made by seamen under sub-s. (2) of sec. 156, M. S. Act, 1894, need be in writing (The Pride of Canada, Br. & Lush. 208 ; 1 M. L. C. 406). The court will still consider whether such a stipulation is equitable, as it would have done independently of the statutes (The Ganges, L. E. 2 A. & E. 370, 3 M. L. C. 342). In The^Wilhelm Tell (1892, P. 337, 7 Asp. 329), it was held that an agreement that the claimants (master, mate, and boat- swain) should be entitled to participate in any sum of money received for salvage services in the proportion set forth opposite their respective names, and incorporated in a fishing-boat agree- ment under sec. 13, M. S. (Fishing Boats) Act, 1883 [now sees. 399 & 400, M. S. Act, 1894], was not void, although the vessel was not exclusively employed in rendering salvage services under sec. 18, M. S. Act Amend. Act, 1862 (sec. 156, M. S. Act, 1894), and the agreement was upheld as equitable; but it was held that under this agreement the owners were not entitled to deduct a sum from the amount received as salvage, for repairs ; nor in the case of the boatswain, who was SALVAGE — queen's SHIPS. 10 paid a fixed rate of wages, anything for loss of profits, but only the unrecovered costs of the salvage action. And in The Salthurn (1892, P. ooo, 7 Asp. -tT-t), it was held that in a fishing agreement a stipulation to consent to deduc- tions " for loss of fishing, damage to vessel and gear, injury to crew," from the amount received for salvage was a stiinilation to abandon a right to part of the amount awarded, and inoperative. In this case it was also proved that the clause relating to deductions was not filled in at the time the agreement was signed, and the court held it would be inoperative under sec. 22, M. S. (Fishing Boats) Act, 1883 [now sec, 407 M. S. Act, 1894], which recjuires it to be proved that every erasure, interlineation, or alteration in a fishing-boat's agreement was made with the consent of all the persons interested in such erasure, etc. In The Wilhelm Tell (uhi suj).), Barnes, J., pointed out that Master's although sec. 182, M. S. Act, 1854, and sec. 18, M. S. Act '^g'-efmejit Amend. Act, 186 2, only applied to seamen, no distinction in salvage. the cases was drawn in the case of a master, who, under the definition in the M. S. Act, would not be included under the term " seaman." The court, in considering the amount of salvage to be In salvage awarded, will consider the losses incurred by salvors in f^^''*™^' , , '' losses and rendering the services, damage to the shiji itself, loss of profits expenses (The Sunniside, 8 P. D. 137, 5 Asp. 140 ; The Be Bay, 8 App. considered. Cas. 559, 5 Asp. 156; The Citij of Chester, 9 P. D. 182, 5 Asp. 311), and expenses, such as extra premium paid to underwriters, to avoid cancellation of the policies from breach of their conditions by deviating (The Edenmore, 1893, P. 79, 7 Asp. 334), and can refer the losses and expenses to the registrar to determine the amount (The Jane, 2 Hagg. 338; The Cargo ex Ulysses, 13 P. D. 205, 6 Asp. 354), and this practice would ajiply in the county court. When salvage services are rendered by any ship belong- Salvage hy- ing to her Majesty, or by the commander or crew thereof, no ^"^en's claim shall be allowed for any loss or damage to the ship, nor for any expense sustained by her Majesty, and no claim by the commander or crew shall be finally adjudicated upon unless the consent of the Admiralty to the prosecution of the claim is proved, and if the claim be prosecuted and the consent not proved, the claim shall stand dismissed with costs (see sec. 557, M. S. Act, 1894). A ship belonging to the Indian Government 20 ADMIRALTY JURISDICTION IN COUNTY COUIITS. ISu pro- ceedings against a State ship »!• stc^i'es lor salvage. Matters recoverable ecessaries. The Admiralty jurisdiction over necessaries — at any rate, when supplied within the body of a county — is entirely the -creation of statute ; the common law courts never recognized ■the jurisdiction of the Admiralty Court over claims by material Neces- saries. 24 ADMIRALTY JURISDICTION IX COUNTY COURTS. meu, nor tlic lien, excejit so far as it was a possessory lieDy, given by the civil law for tbe building and repairing of vessels ; and since the decision of The Neptune (3 Knapp, 0-t) it has- been settled law that no such jurisdiction existed, even as against proceeds in the Admiralty registry. Before the year 1 840 the Court of Admiralty never possessed, althougb it did occasionally, when not prohibited, exercise, jurisdiction in the case of maritime claims arising in the body of a county (per Lord Watson, The Heinrich BJorn,. 11 App. Cas. 270, (5 Asp. 1;. A.lmiralty The first statute conferring such jurisdiction was 3 & 4 Vict.. Vftlo'^'^'^G ^' ^^' ^^^^^^ ^J ^^^'' ^ o^^^ *^^ Admiralty Court — " Jurisdiction to decide all claims or demands . . . for necessaries- sui^plied to any foreign ship or seagoing vessel, . . . whether sucb ship or vessel may have been within the body of a county or on the high seas when the . . , necessaries were furnished in respect of Avhich any such claim is made." This section does not apply to colonial ships (The Ocean- Queen, \ W. Eob. 457), nor where necessaries are supplied in^ a foreign port (The India, 1 M. L. C. 390), but only when they are supplied to a foreign ship in a British or British colonial port (The Wataga, Svva. 1G5 ; The Anna, 1 P. D. 253, 3 Asp.. 287), or on the high seas, and for the purposes of this section foreign ports may also be the high seas (see The Wataga, uhi- sup. ; The Mecca, 18ii5, P., at pp. 105, 107, 108). Necessaries It was for a considerable time considered that this section — ^lien. conferred a maritime lien in favour of the person supplying the necessaries (The Ella A. CJark, Br. & Lush. 32), but in 1886 the House of Lords finally decided that in respect of necessaries no maritime lien was conferred, but only a remedy in rem (The Heinrich Bjorn, 11 App. Cas. 270, G Asp. 1), and therefore no claim, even against proceeds, can be maiutainedl by a person who has supi^lied necessaries, prior to the transfer, against a hondfide purchaser for value, even although the latter had notice of the claim (The Aneroid, 2 P. D. 189, 3 Asp- 418), and the claim, unless supported by a possessory lien (Hamilton v. HarJand tt Woo](^', 4 Asp. 254), does not take j)riority over that of a mortgagor or of any one having a lien (The Two Ellens, 2 E. 4 P. C. 161, 1 Asp. 208). As regards- the ranking of several claims for necessaries inter se when brought at different times by different parties, see The Africano,. 7 Asp. 427. NECESSAPvIES. 25 It having boon held that tho words " seagoing vessel " in the Admiralty above section were governed by the preceding word '• foreign " ^^^j^ l^^' (The Ocean Qnen,, 1 W. Itob. 457), the jurisdiction given by 5. tho above section was extended by sec. 3 of the Admiralty Court Act, 1861 (L'-t Vict. c. 10), to— " Any claim for necessaries supplied to any ship elsewhere tliau in the port to which the ship belongs, unless it is shown to the satisf<)c- tion of the court that at the time of the institution of the cause any owner, or part uwner, of the ship is domiciled in England or Wales." But this Act also only confers a right in rem, not a maritime lien (The Two Ellens, L. R. 4 P. C. 101, 1 Asp. 208). To onst the jurisdiction the owner need only prove that he To oust is "domiciled" in the strict legal sense, not that he is actually •IJ'J^" ^^^]^^^_ resident in England or Wales (The Pocifir, Br, & Lush. 243). die must This must be shown to the court in which the suit is pending, \^ pvoveJ and before it has exercised its jurisdiction and pronounced pending of judgment, and no prohibition will issue to a county court on s"it. these grounds after judgment (Ex parte Michael, L. E. 7 Q. B. 658, 1 Asp. o;>7). As the register of the ship is not conclusive evidence even Register of her nationality (The Princess Charlotte, Br. & Lush. 75), "".'^ •^ ^ ' ^ eviilence or it alone cannot prove the domicile of the owner. owner's This section was formerly held to apply only to British and domicile. colonial ships and not to foreign ships (T//c India, 1 M. L. C. Sec. 5 390 ; The Ella A. ClarJc, Br. & Lush, at p. 37), but it has tPfJ'j^e'g,. recently been decided by the Court of Api)eal that no such ships. limitation should be placed upon the section (The Mecca, 1895, P. 95). The jurisdiction conferred on the county courts by sec. 3 County of the C. C. Ad. Jur. Act, 1808 (31 & 32 Vict. c. 71), as ji,'iion"not regards necessaries, is not more extensive than that exercised more ex- by the Court of Admiralty (The Dowse, L. E. 3 A. & E. 135, ""*'^'^- 3 M. L. C. 424 ; Allen v. Garhiitt, (J Q. B. D. 1 05, 4 Asp. 520 n.). As to what are "necessaries," see Wehsta- v. Seelcamp (4 B. What are- iieces- & Aid. 352; The Alexander, 1 W. Eob. 340; Ihe Biija, ^^^,^^^^ L. E. 3 A. tt E. 510, 1 Asp. 246). They must be such as are reasonably necessary for the particular ship under the existing circumstances, a test of the necessity being whether they are such as a prudent owner, if present, would have ordered. Money expended on necessaries is itself a necessary, but the 2G AD-MIRALTY JURISDICTION IN COUNTY COURTS. Not neces- saries. Must be .shown necessary to order on credit of ship. ■County court no jurisdic- tion for claim for onus lies ou the person making the advance to prove tlie money was so expended (The Alexander, 1 Notes of Cas. 380, 1 W. Rob. ;;4G ; The Sophie, 1 Notes of Cas. 393, 1 W. Eob. 368). A loan of money to a managing part owner to be exjiended on necessaries, places the lender in the same position as the jjerson who actually supplied the necessaries (The Heinrich Bjorn (C. A.), 10 P. D. at p. 50 ; 5 Asp. at p. 394) ; and where the master of a foreign vessel in a colonial port has drawn a bill of exchange on a firm in England to procure necessaries, the firm can, on default in payment of the bill, proceed against the ship as for necessaries (The Onni, Lush. 154, 1 M. L. C. G ; The Anna, 1 P. D. 253, 3 Asp. 237). The following have been held necessaries : — Meat (The N. B. Gosfahrlelc, Swa. 344). The distinction drawn in this case between money advanced to procure necessaries and money to pay a debt for necessaries already procured should be noted. Copper sheathing (The Perla, Swa. 353 ; The Turliani, 2 Asp. 603). Coals ( The West FriesIamJ, Swa. 454, 456). Charges paid by a shipbroker for entering, reporting, and pilotage of a ship, tonnage, and light dues and noting protest (The Biga, L. E. 3 A. & E. 516, 1 Asp. 246). As to premiums of insurance, there is a doubt (cf. The Biga, nhi sup. ; and The Heinrich Bjorn, 8 P. D. 153; 5 Asp. at p. 146). On the other hand, money advanced to pay off a bottomry bond (The Onni, Lush. 154 ; 1 M. L. C. 6); the expenses of a person assisting the master in the defence of a suit (The Bonne Amelie, L. E. 1 A. & E. 19 ; 2 M. L. C. 321) ; money advanced to a master to pay averages (The Aaltje WiUemina, L. E. 1 A. & E. 107) ; brokers' commission for a charter on a subsequent voyage, the vessel then being at sea (The Marianne, 1891, P. 180, 7 Asp. 34) ; have been held not to be necessaries. Even if the things are necessaries, it must be shown that it was necessary to order them on the credit of the ship, and that the supplies could not be procured through the owner or his authorized agent (Gnnn v. Boberts, L. E. 9 C. P. 331 ; 2 Asp. 250 ; Arthur v. Bartun, 6 M. & W. 138). If the claim for necessaries is secured by an instrument in the nature of a bottomry bond the county court has no jurisdiction over the claim, and jurisdiction cannot be given by a waiver of the security, as the claim for necessaries is WAGES. 27 merged ah orhjine in the bottomry bond {The Elpls, L. R. 4 A. ct E. 1, 1 Asp. 472). Before leaving the subject of necessaries attention must be directed to sec. 4 of the Admiralty Court Act, 18G1 (24 Vict. ■c. lU), which gives the Admiralty Court jurisdiction to enter- tain claims not only for repairs, which in many cases would be necessaries, but also for building and equipping ships when the vessel in respect of which the claim is made is already imder the arrest of the court. There has been no decision as to whether this section mutatis mutandis applies to the county courts having Admiralty jurisdiction. Except in the case of repairs, it clearly cannot ; but it may be argued that, in the case of necessary repairs where the ship is already under arrest in the county court, proceedings under this section may be taken independent altogether of the domicile of the owner. See the observations as to similarity between necessaries and repairs in The Slcijp- zoith, 2 M. L. C. 20. Wages. Since the Admiralty Court Act, 1861 (24 Vict. c. 10), the Admiralty Court has had jurisdiction (sec. 10) — " over any claiin by a se.iman of any ship for wages earned by liini on board the sliiji, whether the same be due under a special contract or otherwise." Eefore that Act, in the case of a special contract the Admiralty Court had no jurisdiction. The same section of the above Act also gave the Admiralty Court a like jurisdiction in the case of a master's wages, and also jurisdiction over a claim for disbursements made by him on account of the ship. The C. C. Ad. Jur. Act, 1868 (31 & 32 Vict. c. 71), whilst giving the county court jurisdiction in Admiralty over a claim for wages by a master, was held to give no jurisdiction over a claim for his disbursements (The Dictator, 4 Asp. 19). Since the decision of that case the M. S. Act, 1889 (52 & 53 Vict. c. 46, sec. 1), gave a master the same remedies for his disbursements as he previously had for his wages, i.e. the same remedies as a seaman. This section is re-enacted with verbal differences by sec. 167, sub-ss. (2) and (3), M. S. Act, 1894 (57 & 58 Vict.c. 60), and the effect of this enactment appears to be to overrule the case of The Dictator; and to give the county courts having Admiralty jurisdiction, jurisdiction over a claim for a master's disburse- necessanes secured by bottomry bond. Query has county court juris- diction under sec. 4, Ad- miralty Court Act, 1861. Wages. 24 Vict. c. 10, sec. 10. Jurisdic- tion of county courts. Iklaster's disburse- ments. 28 ADMIRALTY JURISDICTION IX COUNTY COURTS. ments as well as his wages (see The Sorrento, Sh. Gaz. W. S.^ 1895, p. 4;)9). It must, however, be borne in mind that the master's right to sue the shij) for disbursements is con- ditional on his authority to bind the owner (^The Castlegate [1893], A. C. 38, 7 Asp. 284). Eemuneia- An agreement for remuneration out of the profits of a ^itT* ""^ fishing voyage (see sees. 399-412, M. S. Act, 1894), is a con- tract of wages over which the county court has jurisdiction (^The Blessing, 3 P. D. 35, 3 Asp. 5G1 j. Wrono-fiil A claim for wrongful dismissal is within the Admiralty .lismissa], jurisdiction of the county courts, so tar as it is a claim for the '" ■ wages the seaman was prevented earning, and the necessary expenses to which he has been put (The Great Eastern, L. E. L A. & E. 384 ; The Blessing, uhi suj). ; The Sorrento, Sh. Gaz.. W. S., 1895, p. 439). Sec. 162, M. S. Act, 1894 (57 & 58 Vict. c. 60) [substantially sec. 167, M. S. Act, 1854], provides — " If a seaman, having signed an agreement, is discliarged otherwise than iu accordance with the terms thereof before the commencement of the voyage, or before one month's wages are earned, without fault ou his part justifying that discharge, and without his consent, he shall be entitled to receive from the master or owner, in addition to any wages he may have earned, due compensation for the damage caused to him by the discharge, not exceeding one month's wages, and may recover that compensation as if it were wages earned." In Tindle v. Davison (7 Asp. 169), decided under the M. S.. Act, 1854, it was held that the meaning of the section was- that when a seaman was improperly discharged he was entitled to compensation up to a month's wages unless he had earnedi a month's wages, in which latter event the section did not apply. Under fish- As to seamen who have signed a fishing-boat agreement on ingboat ^ trawler above twenty-five tons, sec. 411, M. S. Act, 1894 ments. [re-enacting sec. 27, M. S. (Fishing Boats) Act, 1883, 46 & 47. Vict. c. 41], is as follows : — "If a seaman, having signed a fishing-boat's agreement, is dis- charged before the commencement of the voyage, or at any time during the voyage or engagement, without fault on his part justifying; the discharge and without his consent, he shall be entitled to recover, in addition to an amount of wages proptrlionate to the time he has- served, sufhcient co.niiensation for the damage caused to him bj' the discharge, and may recover that compensation as wages duly earned.''" WAGES. 29 It may here be noted that, in a snit for wages in personam, DefoiuJant, the person to sue is not in all cases the rogisterecl owner, but, ^^ '^" if the ship is demised, the charterer, or in either case the master who actually engaged the crew (MeiJdercid v. West, 1 Q. B. D. 428, ;> Asp. 129; and see O'Neal v. Armstrong, Mitchell S,- Co. [1895], 2 Q. B. 418). As to the time for payment of wages, sec. 135, M. S. Act, Time for 1 894 (modifying sec. 1 87 of M. S. Act, 1854), provides— payment \ J a ■> ji L of wages. "(1) Tlic master or owner of every home-trade ship shall pay to Home- tivery seaman liis wages within two days after the termination of the trade ships, acrreemont with the crew, or at the time when the seaman is dis- <.'liarf;ed, whichever first happens. " (2) If a master or owner fails without reasonable cause to make payment at that time, he shall pay to the seaman a sum not exceed- ing the amount of two days' pay for each of the days during which payment is delayed beyond that time, but the sum payable shall not •exceed ten days' double pay. "(3) Any sum payable under this section may be recovered as wages." And sec. 134, M. S. Act, 1894, which, as regards foreign-going ships, re-enacts sec. 4, Mer. Seamen (Payment of Wages and Eating) Act, 1880, provides — "In the case of foreign-going ship5 (other than ships employed on Foreio-u- voyages ft)r which seamen by the terms of their agreement are wholly going <;impensated by a share in the profits of the adventure) — ■ ships. (a) The owner or master of the ship shall pay to each seaman on account, at the time when he lawfully leaves the ship at the end of his engagement, two pounds, or one-fourth of the balance of wages due to him, whichever is least; and shall pay him the remainder of his wages within two clear days (exclusive of any Sunday, fast day in Scotland, or Bank holiday) after be so leaves the ship: {/>) " If the seaman consents, the final settlement of his wages may be left to a superintendent under regulations of the Board of Trade, and the receipt of the superintendent shall in that case operate as if it were a release given by the seaman in accordance with this part of this Act : {c) " In the event of the seaman's wages or any part thereof not being paid or settled as in- this section mentioned, then, unless the delay is due to the act or default of the seaman, or to any reasonable dispute as to liability, or to any other cause not being the wrongful act or default of the owner or master, the seaman's wages shall continue to run and be payable until the time of the final settlement thercf." 30 ADMIRALTY JURISDICTION IX COUNTY COURTS. In this section the words " cat the end of his engagement " mean that time at which his actual service terminates, either by the natural effluxion of the agreement, or by the discharge of the seaman in breach of the contract (Re The Great Eastern S.S. Co., Claim of Williains, 5 Asp. 511). The seaman is entitled to recover his wages until the certificate of the Chief Clerk in Chancery or the report of the Registrar in Admiralty (same case iili siq).'). A master is not entitled to double pay under sec. 187^ M. S, Act, 1854 (now M. S. Act, 189-1, sec. 105), nor to wages- to time of final settlement under the Mer. Seamen (Payment of Wages) Act, 1880, sec. 4 (now M. S. Act, 1894, see. 134) (The Arina, 12 P. D. 118, G Asp. 141). It may be a question whether a seaman can sue for double l^ay in the county court under sec. 133, M. S. Act, 1894, as in the Arina (uhi sit}).) it was held that the extra payment was not made part of the seaman's wages under sec. 187, M. S. Act^ 1854 (now sec. 135, M. S. Act, 1894) ; but the provision in both enactments that this double pay may be recovered as wages would, it is submitted, enable such a claim to be presented in the county court. Wages 33y the Admiralty Court Act, 18G1 (24 Vict. c. 10), the wages must be must have been earned on board a shij) ; and by the same Act earned on ^^^^^ ^^ u gjj^p >' \g defined as " any description of vessel used in " ship." navigation not propelled by oars," and therefore a dumb barge is not within this definition (Everard v. Kendall, L. E. 5 C. P. 428, 3 M. L. C. 391). Wlio can The original jurisdiction of the Admiralty Court extended claim. tQ claims by all persons serving on board a ship except the master (Hogg v. King, 2 Stra. 858) ; for examj)le, to a claim by a female cook and caretaker (The Jane and Matilda, 1 Hagg> 187); a surgeon (see The Prince George, 3 Hagg. 376, 379);^ an apprentice for wages under his indenture, but not for a penalty (The Albert Croshij, Lush. 44) ; and even to a claim b}'- a pilot for remuneration for services on the high seas (Boss v. TFaZ/cer, 2 Wils. 2G4) ; and such claims still appear to be within the jurisdiction of the Admiralty Division, as although the last two classes are not within the definition of " seaman " given by sec. 742, M. S. Act, 1894 (sec. 2, M. S. Act, 1854), yet it was the object of the Admiralty Court Act, 1861, to extend and not to restrict the jurisdiction (The Diana, Lush. 539, 1 M. L. C. 261). WAGES. 31 In the case of lictj. v. Jtuhje of the Cltij of London Court and the Owners if the Mlchiijan (iT) Q. B. D. SlJO, G Asp. 547), it was held that the county court judge had jurisdiction iu au action in rem brought by the- mate of a vessel, who, after the crew, including himself, had been paid off, remained on board to superintend the loading of the ship by direction of the owner without signing fresh articles. When seamen are engaged for a voyage which, through no fault on their part, is abandoned, the Admiralty Court has jurisdiction over a claim for wages earned by them working on board the ship in harbour ( Wells v. Osman, 2 Ld. Eaymond, 104:4, 2 Mod. 2:38) ; and iu The Great Eastern S.S. Co., Claim of Williams (5 Asp. 511), it was held that the articles prescribed by the M. S. Act, 1854, need not be signed until the ship is going to sea, and that, at any rate until she has gone to sea, the absence of articles does not void au agreement with the seaman, nor is it necessary that the agreement should be in writing. With regard to the amount of wages recoverable, it must be Amount borne in mind that under the ordinary seaman's agreement l^^^_^ (M. S. Act, 1894, sec. 115), though wages are payable on the termination of the agreement for the whole term served, they only vest at the end of each term prescribed, " week," " month," " voyage," etc. {Button v. Thomjyson, L. E. 4, C. P. 330). In fishing-boat agreements, as by statute (sec. 383, M. S. Act, 1894) they accrue from day to day, it may be a question if they do not also vest daily. With reference to the above case, it should be noted that the question involved has never been before a court of appeal, notwithstanding that the Court iu Banc was divided, the decision being that of Montague Smith and Byles, JJ., the present Master of the Eolls dissenting. With regard to the recovery of wages and allotments, the Recovery M. S. Act, 1894 (57 & 58 Vict. c. 60), clears up a doiibt that ||,\7_X^ had been felt as to the jurisdiction of the county courts on meuts. their Admiralty side when the claim was under £50 (see M. S. County Act, 1854, 17 & 18 Vict. c. 104, sees. 169, 189). courtjuris ' ' ? J / diction. It is now clear, by sees. 143, 165 of M. S. Act, 1894, that such a suit must either be taken before magistrates or ou the common law side of the county court, except in certain cases mentioned in those sections. That is, that for practical purposes, where the claim is under £50, the plaintiff has no proceeding in rem open to him, or :32 ADMIRALTY JUUISDICTION IN COL'NXy COURTS. ^lodo of recovering watres. M. S. Act, 1894, sec. 164. M. S. Act, 1894, sec. 165. Distress for wages, €tc., un- ])ai'>'o rata with other claimants against the fund in court, seems not to have been directly decided, although in The Zoe (11 P. D. 72, 5 Asp. 583), Butt, J., appears to intimate an ojunion it is so bound. As to salvage by her Majesty's ships, see "Salvage," p. 19. Besides the vessels of the Royal Navy, generally called Queen's ships, there are at the present time a number of vessels, some of them of considerable tonnage, belonging to the Post Office for laying and underrunning telegraphic cables, to the War Office and Admiralty for carriage of stores, and to the Board of Trade for boarding vessels and in its capacity as harbour master at Eamsgate, and possibly elsewhere, tugs for rendering assistance to vessels. The Indian Government also owns the vessels of the Indian Marine, which vessels, though enjoying in most respects the status and privilege of vessels of war whilst in Indian waters, when they visit this country are in a very anomalous position. Questions may arise, with regard to these vessels, both as to collisions and salvage services, and even possibly as to wages, where the amount claimed is within the county court limit. To confine ourselves at first to the question of collision, we have to consider, (1) a claim on behalf of the ships, (2) a claim against the ships and the right of arrest. In the first case, the only question is in whose name the action should be brought. The ships enumerated other than those of the Indian Marine are built and maintained out of money pro- vided by Parliament, but they do not appear on the Navy List as Queen's shij)s, nor are they registered under the M. S. Act as merchant ships. It therefore seems very difficult to say in whom the property is vested, so as to enable an action to be brought. On the whole, it would appear that, whoever may be owner or quasi-owner, the master is in fact a bailee, and as such entitled to bring the action for damage done to property iinder his charge in his own name ; and therefore, whether the Lords of the Treasury or Post-Master General, or both of them (or the Secretary of State for War, etc.), be added as plaintiffs GOVERNMENT VESSELS. 55 or not, it would seem desirable to have tlie master of the ship also on the record as a plaintiff. With regard to actions for damage done by these ships, the Actions same principle of the immunity of the Crown for the acts of t^oseships officers employed by it would appear to apply as in the case of warships, and thus the action could only be brought, as in the case of warshij)s, against the master or actual wrongdoer, and the property would be free from arrest as ultimately the property of the Crown. The case of the Indian Marine vessels is somewhat different, Vessels of as the money to build and maintain them is provided, not ^^'^'^° directly by Parliament, but out of the Indian revenues ; and, moreover, the Secretary of State for India stands on a different footing as regards actions from the head of any other Govern- ment department (21 & 22 Vict. c. 106, s. 65). It would therefore appear that, in actions for damage done by or to these vessels, the Secretary of State for India is the proper defendant or plaintiff, but no harm will be done if, ex major e caidela, the captain be also added. With regard to salvage services rendered by these vessels, it Salvcage by- Las been held that vessels of the Bombay marine, belonging to the above the Government of that Presidency, and used for the public ^.g'^gg^jg^ service, are her Majesty's ships within the meaning of the M. S. xict (57 & 58 Vict. c. 60, sees. 557-56i) (The Cargo ex Woosung, 1 P. D. 260, 3 Asp. 239). These vessels are now a part of the larger service of the Indian Marine, the officers of which have a more regular appointment and status than those of the Bombay marine had, and therefore it may be considered as certain that the vessels of the Indian Marine would be treated as her Majesty's ships, at all events whilst in Indian waters, that is, anywhere from Suez to the Cape of Good Hope on the west, to China and Japan on the east. Therefore, whilst the crews can claim salvage after obtaining the consent of the Admiralty, nothing is to be granted to Government for the use of ship and stores. On the other hand, a tug ;used by the Board of Trade as trustee for Eamsgate harbour, and used for the ordinary com- mercial purposes of a harbour tug, is not one of her Majesty's ships within the meaning of the above Act, and consequently salvage can be awarded, not only to her crew, but also to the Board of Trade for the services of the tug herself {The Cijhele, 3 Asp. 478, 532). In the absence of any legal decision, it is not possible to say 56 ADMIRALTY JURISDICTION IN COUNTY COURTS. Salvage services rendered to them. Wages earned on board of them. in what light the court would view the vessels of other Govern- ment departments. On the one hand, they are not so purely employed for commercial gain as the Eamsgate harbour tug ; on the other, they are not employed in the general public service of the state, and their officers and crews are no further under the control of the Admiralty than those of any ordinary merchant ship would be. It is not probable, however, that in such a case any claim would be made on behalf of the Post Office or Treasury or of the War Department for the use of the vessel, though possibly there might be for the consump- tion of stores. So far as the crew are concerned, if the owner of the salved property is British and solvent, they can avail themselves of the provision in sec. 562, sub-s. (1), (2), of the M. S. Act, 1894. In case of salvage services rendered to any of these vessels, the public character of the Indian Marine would appear, at all events, to free it from any liability to have its ships arrested, and probably, following the general principles laid down in The Swift (1 Dod. 320), they none of them, except perhaps the Eamsgate tug, are liable to arrest or process. In any case, as the vessels are not likely to run away or the Government to become insolvent, the better course to pursue, when salvage services are rendered to tliese ships, would be not to arrest them, but to communicate with the Government Department, and, failing a satisfactory settlement, ask that the matter should be referred to the Admiralty Division, as in the case of salvage services rendered to vessels which undoubtedly are properly styled her Majesty's or Queen's ships and stores {The Marquis of Huntly, 3 Hagg. 246). It is extremely unlikely that any question of wages earned on any of these vessels will come before a county court. As the crews are not under the Mutiny Acts nor yet under the M. S. Act, it is probable that a contract is made between the depart- ment owning the ship on behalf of the Government, on the one hand, and her officers or seamen on the other, of which the county court judge could not take cognizance ; but, in the absence of statute law or decided cases, attention can only be drawn to the question. There are obvious difficulties in the institution of a suit for wages, as neither the Crown nor the servant of the Crown could be made defendant, and it would probably be better to proceed by petition of right. Besides the jurisdiction in Admiralty conferred on county courts as shown above — JURISDICTION BY CONSENT. 57 In salvage wlicu the value of the property saved does not Juiisdic- exceed £1000, or when the amount claimed does not exceed l'°^^J^^ £300. In towage, necessaries, and loages when the amount claimed 'Iocs not exceed £150. For damage hi/ collision, or damage to ship, damage to cargo, claims arising out of any agreement relating to the use or hire of any ship, or to the carriage of goods in any ship, and claims in tort in respect of goods carried in any ship when the amount claimed does not exceed £300— a jurisdiction by consent of the parties is given in almost identical terms both by sec. 3, sub-s. (4), of the C. C. Ad. Jur. Act, 1868 (31 & 32 Vict. c. 71), and sec, 2, sub-s. (2), of the C. C. Ad. Jur. Amend. Act, 1869 (32 & 33 Vict. c. 51). C. C. Ad. Jur. Act, 1868, sec. 3, sub-s. (4) : Any cause C c. Ad. , . (. Jur. Act, m respect of any such claim or claims as atore- ^ges, sec. said, but in which the value of the property ^^.'^'^■^• saved or the amount claimed is beyond the amount limited as above mentioned, when the parties agree by a memorandum signed by them or by their attorneys or agents that any county court having Admiralty jurisdiction, and specified in the memorandum, shall have jurisdiction. C. C. Ad. Jur. Amend. Act, 1869, sec. 2, sub-s. (2): As c. C. to any cause in respect of any such claim or j^^^^l' claims as aforesaid, but in which the amount Act, 1869, claimed is beyond the amount limited as s^^.j. (o). above mentioned, when the parties agree, by a memorandum signed by them or by their attorneys or agents, that any county court having Admiralty jurisdiction, and specified in the memorandum, shall have jurisdiction. The case of a counterclaim in excess of the jurisdiction of Counter- an inferior or county court was dealt with in sec. 90 of the ^.(Jl'v^ng"* Judicature Act, 1873 (36 & 37 Vict. c. G6j, by which section mattei" the counterclaim was to be dealt with only so far as it related J'^'Jj^jJ^.^''^ to the plaintiff's claim. tion. 58 ADMIEALTY JUEISDICTION IN COUNTY COURTS. Judicature Act, 1873, sec. 90. Judicature Act, 1884, sec, 18. " 90. Where in any proceeding before any sucli inferior court any defence or counterclaim of the defendant involves matter beyond the jurisdiction of the court, such defence or counterclaim shall not affect the comj^etence or the duty of the court to dispose of the whole matter in controversy so far as relates to the demand of the plaintiff and the defence thereto, but no relief exceeding that which the court has jurisdiction to administer shall be given to the defendant upon any such counterclaim : Provided always, that in such case it shall be lawful for the Higli Court, or any division or judge thereof, if it shall be thought fit, on the application of any party to the proceeding, to order that the whole proceeding be transferred from such inferior court to the High Court, or to any division thereof; and in such case the record in such proceeding shall be transmitted by the registrar, or other proper officer, of the inferior court to the said High Court; and the same shall henceforth be continued and prosecuted in the said High Court as if it had been originally commenced therein." This has "been extended by sec. 18 of the Judicature Act, 1884 (47 & 48 Vict. c. 61). " 18. The jurisdiction of an inferior court in cases of counterclaim under sees. 89 and 90 of the Supreme Court of Judicature Act, 1873, shall not be excluded by reason (1) that any such counterclaim involves matter not within the local jurisdiction of such inferior court, but within the jurisdiction of any other inferior court in England; or (2) that, where the counterclaim involves more than one cause of action, as to each of which the defendant might have maintained a separate action, each such cause of action being within the jurisdiction of the court, the aggregate amount of the counterclaim exceeds the jurisdiction of the court ; or (3) that the counterclaim is for an amount of money exceeding the jurisdiction of the court, provided that the plaintiff does not object in writing, within such time as may be prescribed by any rules, to the court giving relief exceeding that which the court would have had jurisdiction to administer prior to the commencement of this Act. In any case where the counterclaim involves matter beyond the jurisdiction of the court, notwithstanding the provisions of this section, the court may, on such terms (if any) as the court may think just, either adjourn the hearing of the case, or stay execution on the judgment, for such time as may be necessary to enable any party to api:)ly to remove the proceedings into the High Court of Justice, or to enable the defendant to prosecute in a court of competent jurisdiction an action for the purpose of establishing his counterclaim ; and in default of any such application being made, or action brought, the court shall, after the expiration of the time limited, have jurisdiction to hear and determine the whole matter in contro- versy, to the same extent as if all parties had consented thereto." It would appear that the above sections, taken in conjunction "with sec. 89, Judicature Act, 1873 — TRANSFER. 59 "89. Every inferior court which now has or which may after the Judicature passing of this Act have jurisdiction in equity, or at law and in ^^^^'gg^ ' equity, and in Admiralty respectively, shall, as regards all causes of action within its jurisdiction for the time being, have power to grant, and shall grant in any proceeding before such court, such relief, redress, or remedy, or combination of remedies, either absolute or conditional, and shall in every proceeding give such and the like effect to every ground of defence or counterclaim, equitable or legal (subject to the provision next hereinafter contained), in as full and ample a manner as might and ought to be done in the like case by the High Court of Justice." give the county court, in the case of a counterclaim involving inferior matter beyond its jurisdiction, power to entertain the same, g°"gj.f^f^ subject to the removal of the action to the High Court by counter- either of the parties as provided for in sec. 18, Judicature e^J|i";^'^J;: Act, 1884 (Davis v. Flagstaff Co., 3 C. P. D. 228), just as the pHcationto Admiralty Division of the High Court can now entertain a remove. counterclaim in respect to a matter which would not have been within the jurisdiction of the High Court of Admiralty before the Judicature Acts {The Oquendo, 3 Asp. 558). If a claim is brought in the county court, and in the course Transfer of of the proceedings it appears to exceed in amount the limit '^|;^j'°[^^ ' °^" of the Admiralty jurisdiction in such court, unless the parties court 'to consent to give jurisdiction, the county court judge will make ^^sj^ ^^^ an order transferring the same to the High Court under sec. T 'j, ' ' of the C. C. Ad. Jur. Act, 1868. 7. If during the progress of an Admiralty cause in a c. C Ad. county court it appears to the court that the subject- ^ggg^ ^^^^ matter exceeds the limit in respect of amount of the 7. Admiralty jurisdiction of the court, the validity of any order or decree theretofore made by the court shall not be thereby affected, but (unless the parties agree, by a memorandum signed by them or by their attorneys or agents, that the court shall retain jurisdiction) the court shall by order transfer the cause to the High Court of Admiralty; but that court may, nevertheless, if the iudge of that court in any case thinks fit, order that the cause shall be prosecuted in the county court in which it was commenced, and it shall be prosecuted accordingly. 60 ADMIRALTY JURISDICTION IN COUNTY COURTS. But the Higli Court may exercise its discretion, and condemn the plaintiff in the costs of the abortive proceedings in the county court, even although he has succeeded in his action in the High Court (Ward v. Wyld, 5 Ch. D. 779). If the action is brought by a plaintiff in the county court in respect of a matter over which the court has no jurisdiction whatever the amount, the judge must order the action to be struck out, but he can exercise his discretion as to the costs as though he had had jurisdiction, sec. 114, County Court Act, 1888 (51 & 52 Vict. c. 43). " 114. Whenever an action or matter is commenced over which the court has no jurisdiction, the judge shall, unless the parties consent to the court having jurisdiction, order it to be struck out, and shall have 230wer to award costs in the same manner, to the same extent, and recoverable in the same manner, as if the court had jurisdiction therein, and the plaintiff had not appeared, or had aj^peared and failed to prove his demand or complaint." Sec. 6 of the C. C. Ad. Jur. Act deals with the power of the High Court, on motion by any j)arty to an Admiralty cause, to remove the same to the High Court, c. c. Ad. 6. The High Court of Admiralty of England, on "'sRs^'^*' motion by any party to an Admiralty cause pending in sec. 6. a county court, may, if it shall think fit, with previous Tran&ferby notice to the other party, transfer the cause to the High High Court ^, „ » n . ■, n -, •, p 7 on motion Court 01 Admiralty, and may order security tor costs, of either ^^ impose such other terms as to the court may seem fit.' This section is frequently taken advantage of to move small salvages into the High Court, if there is already a suit relating to the same incidents pending there. See also The Immaculata Concezzione (8 P. D. o-i, 4 Asp. 593), where in an action for necessaries in the City of London Court judgment had been obtained by the plaintiffs, and a warrant of execution directing a sale of the ship had issued, but the plaintiffs, in an action brought for repairs to the same ship in the High Court, after having intervened in the action in the county court, obtained an order from the High Court removing the action to the High Court, but without prejudice to any rights of priority. Order XXXIX. B., County Court Enles, 1889, r. 20 (County Court Rules, 1892, r. 85) (at that time Order XXXIII. r. 10 TRANSFER. 61 of tlic Rules), uucler wlilcli the i)laiutiffs ia tlie Higli Covirfc action iatervened, is as follows : — "Any person claiming to have an interest in the vessel or property- may intervene hy entering an appearance in an action. If the interest claimed hy such person shall not be cognizahle by the court, any party may apply to the court or to the High Court to have the case transferred to the High Court of Justice." When a judgment has been obtained in the County Court, and the action is subsequently removed to the High Court under the above section and order, a question may arise as to whether such judgment, though of anterior date, has priority over a subsequent judgment in a High Court action (see per Sir F. Jeune in The Afrlcano, 1894, P. at p. 150, 7 Asp. at p. 429). In The Sioan (L. E. 3 A. & E. 314), it was held this power could equally be exercised in causes over which the county court has Admiralty jurisdiction by virtue of C. C. Ad. Jur. Amend. Act, 1869, although the Admiralty Court itself had no original jurisdiction over such causes. As to the power of the High Court on an appeal to transfer proceedings to the High Court for sale, see sec. 32, 2>ost. 8. If during the progress of an Admiralty cause in a fj-^^^- county court it shall appear to the court that the cause ises, sec'. could be more conveniently prosecuted in some other ^^^^^y county court, or in the High Court of Admiralty of court ^ England, the court may by order transfer it to such -Sscfetlon other county court, or to the High Court of Admiralty to remove of Enoland, as the case may be, and the cause shall court or thenceforward be so prosecuted accordingly. CourL Sec. 8 of the C. C. Ad. Jur. Act, 1868, gives the county court also a discretion to transfer a cause either to another county court or to the High Court. Where a suit was transferred to the High Court under this section, and it proved that the county court had no jurisdiction, it being a cause of bottomry, the proceedings had to be com- menced de novo in the High Court {The Elpls, L. R. 4 A. & E. 1, 1 Asp. 472). And where a cause was transferred to the High Court under this section, it was held there must be pleadings as in actions originally commenced in the Admiralty Division (The CarishrooTc, 38 W. R. 543). G2 ADMIRALTY JURISDICTIOX IN COUNTY COURTS. On tlie practice in transferring actions under these sections, tlie County Court Eules, 1889, Order XXXIX. B. 1889, rr. 33, 34 (rr. 98, 99, 1892), are as follows :— " R. 33. Wliere an action is transferred to another county court or to Practice on ^^^ -g. , Qq^^^ by order either of the court in which the action was transier. o ^ i n • i County commenced or of the said High Court, the registrar shall transmit the Court record of the proceedings to the proper officer of the Court in the ^" '^®' same manner as is prescrihed by Order XXXIII. r. 7 of these rules for the transmission of proceedings transferred under sec. 90 of the Supreme Court of Judicature Act, 1873, and sees. 68 and 126 of this Act," i.e. County Court Act, 1888 (Forms 326 & 327, Appendix). "E. 34. Where the proceedings have been transferred by an order of the High Court, a copy of the order transferring the proceedings shall be left with the registrar." And see County Court Eules, 1896, r. 6, Appendix. Order XXXIII. r. 7, referred to in r. 33 above, is as follows : — " Where any order is made by the High Court of Justice or any division or judge thereof for the transfer of any action or matter from the court to the High Court of Justice under sec. 90 of the Supreme Court of Judicature Act, 1873, or under sec. 126 of the Act, or where an order is made by a judge under sec. 68 of the Act, and rules 5 and 6 of this order, then, subject to such order, the record in such proceed- ing shall be transmitted by the registrar in the following manner : The registrar shall make and certify under his hand office copies of all entries of record in the books of the court, and shall forthwith trans- mit by post or otherwise to the proper officer of the High Court of Justice such copies, together with all such documents as shall have been filed in the action, and also where the proceedings have been transferred from a county court the order of such court. Such copies and the cost of transmission shall be paid for by the party on whose application the transfer has been made, unless the transfer shall have been made by the judge under rule 5 of this order without any application to transfer being made to him, in which case such copies and the costs of transmission shall be paid for by the plaintiff" in the action, and the registrar may require deposit of the cost of making such copies and transmission before making or transmitting the same." Sees. 68 and 126 apply only to proceedings at common law and in Chancery. As to transfer of proceedings by the judge of a county court to the High Court on the application of a shipowner when the ship has to be sold, see sec. 23, j)osi' TRANSFER. 63 There is no power under tlie Admiralty Courts Admiralty Transfer Jurisdiction Acts to transfer a cause from tlie High Court to fy'"" H'gh , TT . 1 X ii I • • Court to the county court. Having regard to the general provisions county of the County Courts Act, 1888, the question might arise court. whether its provisions as to transfer — in cases of contract where the sum claimed does not exceed £100, or is reduced by payment below that amount (sec. 65), or where the plaintiff has no means (sec. GO), are not applicable. Probably, following The Eden (1892, P. 07, 7 Asp. 174) and The Delano (1895, P. 40) they are, but the question is not of great practical importance, as an action for an amount so much within the limit of jurisdiction as £100 would never be instituted in the High Court except by leave or agreement for fear of the penalty of costs, and the persons who sue for torts are, as a rule, shipowners, who cannot generally be shown to be absolutely without means. Under sec. 6 in Admiralty actions the application to the PracticR High Court to remove the action from the county court must ^^ be on motion, not as in other actions under the corresponding sec. (126) of the County Courts Act, 1888, by summons at chambers (Anon. W. N., 1876, p. 12). Sec. 7, providing that the court shall transfer where the Sec. 7. amount of the subject-matter exceeds the jurisdiction, corre- sponds to sec. 68 of the County Courts Act, 1888, which relates to j)roceedings in equity. In this section it is stated, " and the whole of the procedure in the said action or matter when so transferred shall be regulated by the rules of the Suj)reme Court." Having regard to the practice under sec. 8, C. C. Ad. Jur. Act, 1868 (see p. 87), and to the terms of sec. 90, S. C. J. Act, 1873, it may be assumed that the same practice would be followed in transfers under sec. 7. Sec. 8 corresponds, so far as transfer to another county court Sec. 8. is concerned, to sec. 85, County Courts Act, 1888. The latter section provides for an action being transferred when it can be more conveniently or fairly tried in some other court, or where the judge is interested in the action, and such would be grounds for removal under sec. 8. The section in the C. C. Ad. Jur. Act goes further than sec. 85 of the Act of 1888, as it gives to county courts in Admiralty actions a power to transfer to the High Court as well as to another county court. It appears that the apj)lication would be made under the pro- vision of C. C. K, 1889, Order XII. r. 11« (p. 157). 64 ADMIRALTY JURISDICTION IN COUNTY COURTS. Sec. 9, €. C. Ad. Jur. Act, 1868, now repealed. General rule as to costs. 9. If any person shall take in the High Court of AdTniralty of England or in any superior court pro- ceedings ivhich he might, ivithout agreement, have taken in a county court, except by order of the Judge of the High Court of Admiralty or of such superior court or of a county court having Admiralty jurisdiction, and shcdl not recover a sum, exceeding the amount to which the jurisdiction of the county court in that Admiralty cause is limited by this Act, and also if any person without agreement shcdl, except by order as aforesaid, take proceedings as to scdvage in the High Court of Admircdty or in any Superior Court in respect of property saved, the vcdue of luhich when saved does not exceed one thousand pounds, he shcdl not be entitled to costs, and shall be liable to be condemned in costs, unless the judge of the High Court of Admiralty or of a superior court before tvhom the cause is tried or heard shall certify that it was a proper Admiralty cause to be tried in the High Court of Admircdty of England or in a superior court. This section was held to be repealed as inconsistent with judicial discretion as to costs by virtue of Order LV., now Order LXV. r. 1 of the rules made under the authority of the Judicature Acts, and sec. 33, sub-s. (2), of the Judicature Act, 1875. " Sec. 33. From and after the commencement of this Act there shall be repealed — " (2) Any other enactment inconsistent with this Act or the principal Act. " LXV. 1. Subject to the provisions of the Acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge; . . . Provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the court shall, for good cause, otherwise order." {Tenant v. Ellis, 6 Q. B. D. 46; Bockett v. Cliippingdale, 1891, 2 Q. B. 293 ; Garnett v. Bradley, 3 App. Gas. 944), and sec. 9 is now expressly repealed by the Statute Law Revision Act, 1893 (56 Yict. c. 14). COSTS. 65 But altliougli sec. 9 has thus been repealed, the judge of Costs in tlic Admiralty Division exercises Lis discretion much on the discretion ...,., or iudge. principle there indicated, and if an action is instituted in the High Court which could have been brought in the county court, the plaintiff will be deprived of or condemned in costs, or only such costs as he could have recovered in the county court will be allowed, unless the court is of opinion the plaintiff has acted properly and reasonably in bringing the action in the High Court. Instances of costs being disallowed will be How dis- found iu the following cases: The Asia, 1891, P. 121, 7 Asp. ^^/^j^Jsed 25; The Herald, G Asp. 542; The Salthurn, 1892, P. 333; ^•'""' ' " The Agnes and Louisa, Sh. Gaz. W. S., 1886, p. 86 ; The St. Kilda, Sh. Gaz. W. S., 1894, p. 422; The Zeta, 1893, A. C. 468, 7 Asp. 369. High Court costs have been allowed where it was necessary to issue a commission to take evidence abroad (^The Bengal, L. P. 3 A. & E. 14, 3 M. L. C. 316; Ellis v. General Steam Navigation Co., 3 Asp. 581); and — In salvage, where a suit by other parties arising out of the same circumstances was pending in the High Court, or where the expense of trying in London was less than it would be in the county court (The Beaumaris Castle, 1 Asp. 19). In salvage actions, sec. 547, M. S. Act, 1894 (57 & 58 Vict. Certificate c. 60), has re-enacted the necessity of obtaining a certificate i^'sl^i^ao-g from the Judge to enable costs to be recovered when the action actions, has been brought in the High Court and not more than £300 been recovered. Sec. 547, subs. (2)— " Subject as aforesaid, disputes as to salvage shall be determined by M. S. Act, tlie Hidi Court in Endand or Ireland, or in Scotland by the Court of ^^^4, sec. Session; but if the claimant does not recover in any such court in ^^2).' Great Britain more than £300, and in any such court in Ireland more than £200, he shall not be entitled to recover any costs, charges, or expenses incurred by him in the prosecution of his claim, unless the court before which the case is tried certify that the case is a tit one to bj tried otherwise than summarily in manner provided by this Act." This section differs somewhat from sec. 9 of the C. C. Ad. Jur. Act, 1868 ; the value of the property in salvage actions is not referred to, nor the liability of the plaintiffs to be condemned in costs, but in practice, except that the certificate must be asked for, it will probably make very little difference, as the judge will exercise his discretion in giving or withholding the F 60 ADMIRALTY JURISDICTION IN COUNTY COURTS. certificate, on tlie lines indicated above (see The Dragoman, Sh. Gaz., W. S., 1895, p. 327). Ordinary As the C. C. Ad. Jur. Act, 1868, and the amending Act of tioirof'^^' ^^*^^ ^^^ ^°^ affect the jurisdiction the county courts already county possessed (see Scovell v. Bevan, 1 9 Q. B. D. 428 ; Beg. v. Judge courts ^y gQnt]iend Couniii Court, 13 Q. B. D. 142, p. 5, supra), not taken '' n -n -i i / away by actions arising out of contract or tort can still be brought Admiralty j^ ^]^q ordinary jurisdiction of the county court, although involving subject-matter jiroper for Admiralty causes, and which would make them solely Admiralty causes if they were for an amount outside the ordinary county courts jurisdiction. Actions brought thus would, however, only be ordinary com- mon law actions, and no security could be obtained over the res, as in Admiralty causes. County The County Courts Act, 1888 (51 & 52 Vict. c. 43), enacts. Courts Act, see. 56 — 1888. " All personal actions where the debt, demand, or damage claimed is not more than £50, whether on balance of account or otherwise, may be commenced in the court, and all such actions shall be heard and determined in a summary way according to the provisions of this Act. . . ." Sec. 116, with respect to actions brought in the High Court which could have been commenced in a county court, l)rovides — "With respect to any action brought in the High Court which could have been commenced in a county court, the following provisions shall apply : — "(1) If in an action founded on contract the plaintiff shall recover a sum less than twenty pounds, he shall not be entitled to any costs of the action, and if he shall recover a sum of twenty pounds or upwards, but less that fifty pounds, he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court ; and *'(2) If in an action founded on tort the plaintiff shall recover a sum less than ten pounds, he shall not be entitled to any costs of the action ; and if he shall recover a sum of ten jDOunds or upwards, but less than twenty pounds, he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court ; unless in any such action, whether founded on contract or on tort, a judge of the High Court certifies that there was sufficient reason for bringing the action in that court, or COSTS. ('(7 unless the High Cuurt or a judge thereof at chambeis shall liy order allow costs. I'rovided that, if in any action founded on contract the plaintiff shall within twenty-one Sittings of the Court. " 1. The judge may try or partly try the action at any place within Where the Admiralty district of the court. ^^^^"^ "'''>' " 2. Where application is made to tlic judge for tlie trial or part trial of an admiralty action at a place in which a court is not holdeu, the ^jj"j^'"fj^j. party making the application shall file a prajcipe undertaking to pro- expenses, vide at his expense a place to the satisfaction of the judge in which the action may be tried, and pay the necessary expenses of the judge and officers so attending. (Form of praecipe, see form 318, Appemiix.) "3. The days of the sitting of the court shall be those appointed Sittings of for the transaction of the ordinary general business of the court held the court in the city or town mentioned in the name of the court, or such other j^^jj.jjjj days as the judge may from time to time appoint on the written application of either party. "Provided that where, from the detention of a vessel or otherwise, Special day a prompt determination of the action is desirable, a special sitting for trial, shall on the application of any party be appointed by the judge at as early a date as possible. Such application shall be made on notice being given to the other partj', who shall have the right to be heard." The proviso in Order XXXIX. b. r. 3, for expediting the trial in certain cases, corresponds with Order LXIV. r. 9 of the Rules of the Supreme Court. Under the above rules of the county court, notice is recjuired to the other party of the application for a special sitting, and therefore in a default action an application under the above rule would not be entertained, following the practice in the High Court, The Avcnh (9 P. D. 84). Eule 2 provides for the expenses of the court when it sits at a place where a court is not usually holdeu ; but there appears no similar provision where under rule 3 the court sits in the regular court house, but at an unusual time, no doubt such a case being provided for by sec. 179, County Courts Act, 1888. 7G ADMIRALTY JURISDICTION IN COUNTY COURTS. Sec. 14, c. 14. The registrar of each county court having Admiralty ^.' I'^'l'J.^J' iurisdiction shall from time to time frame a list, to be Act, 1868. -' Appoint- approved by the judge of the High Court of Admiralty, assessors, before wliom the same shall be laid by the county court judge, and without whose approval it shall have no validity, of assessors, of persons of nautical skill and experience residing or having places of business within the district of the county court, to act as assessors in that court, and shall cause the list to be published in the London Gazette. Sec. 15, c. 15. Every person named in the list of assessors so Act'^tses^' fi'9'ii^ed and approved shall attend the county court Attendance under such circumstauccs, and in such rotation, and subject to such regulations, and shall receive such fees for his attendance, as general orders shall direct, and i'or every wilful non-attendance shall be liable, at the discretion of the court, to a penalty not exceeding five pounds. Sec. 16, c. 16. Every assessor named in such list shall hold his Act 1868^' office until a new list of assessors shall have been framed Removal and approved as aforesaid, or until he shall resign his ofassessors. appointment. These sections as to the ai)pointment of nautical assessors are extended to mercantile assessors by sec. o of the C. C. Ad. Jur. Amend. Act, 1869, for which see ]}. 69. Order XXXIX. b., County Court Eules, 1889, rr. 58-62 (County Court Rules, 1 892, rr. 123-127), dealing with assessors, is as follows : — Assesso7^s. P:iymeiit " 58. The party requiring the juitge at the trial or the registrar ou ofassessors. an assessujent of damages to be at-sisttd by one or two assessors, shall at the time of the precipe pay to the rejiistiar the sum of one guinea for each assessor if the amount claimed does nut exceed £100, and two guineas if it does exceed that amount, and such payments shall be considered as costs in the action, unless otherwise ordered by the judge. Assessors' "59. Where the judge or the registrar requires the assistance of fees. two assessors, the fees in the last jireceding rule mentioned shall be ]iaid by the plaintiff or Ids solicitor before the trial, and shall be costs in the aciion, unless otherwise ordered by the judge. Selection of assessors. ^ ASSESSORS. / / "60. AVhere tlie trial or reference is aajdnrncd, the plaintifl" sliall pay the assessors' fees for the day of adjournmeiit forthwith after tlie i.rder of adjournment is made by the judge or registrar, as the case may be. "61. Upon the delivery of tlie praecipe in rule 58 mentioned, or upon the requirement of the judge or registrar, as in rule 59 mentioned, the registrar sliall select from the list of assessors the names of two persons whom he may, having reference to the nature of the action to be tried or of the reference to be determined, consider most capable of assisting the jndge or registrar in trying aixd determining it, a-id shall send to each of such persons by post a summons according to the form in the appendix. (Form 335, see Appendix.) "62. The registrar shall pay to every assessor for each day's attendance and service in every action or reference one guinea or two guineas, according as the amount claimed in tlie action does or does not exceed £100." There seems to be no special power uucler tlie above rules Objection for taking objection to tbe assessors siinimonecl ; whereas under sec. 103 of tbe County Courts Act, 1888, and Order XXI. of the County Court Rules, there is a " prescribed manner " of taking objection. The manner of taking objection there prescribed is, however, not appropriate to Admiralty actions, as the entire jH-ocedure is dififerent. In the latter, under Order XXXIX. b., the registrar nominates assessors from the approved list, and the parties have no notice of the particular assessors summoned until the time of trial ; whereas under Order XXI. the parties specify the names of the assessors they wish summoned, and any objection is disposed of before the trial on summons. In the event of either of the parties in an Admiralty action having any valid objection to either of the assessors, no doubt the court would entertain the same on application at the trial. The practice in the High Court is, where the Trinity House is a party to tbe action, to summon assessors who are not Elder Brethren of the Trinity House (Will and Bruce, 2nd edit., 442 n.). The registrar can be assisted by an assessor or assessors on Assessors a reference to assess damages (Order XXXIX. b., County Court °"^^'^ Eules, 1889, rr. 65 & G7, [County Court Rules, 1892, rr. 130 & 132]), which see p. 180. The Admiralty assessors are remunerated (Order XXXIX. b.. County Court Eules, 1889, rr. 58, 59, County Court Eules, 1892, rr. 123, 124, siqj.) on a different scale to those summoned ■ence. 78 ADMIRALTY JURISDICTION IN COUNTY COURTS. under sec. lOo of the County Courts Act, 1888 (Order XXI. rr. 6, 12, County Court Eules, 1889). Sec. 17, C. 17. The registrars of the county courts shall be ^1^*^186^* I'smunerated for their duties in Admiralty causes by Kennmera- receiving for their own use such fees as General Orders tion of T. 11 T L registrars, ^hall direct. The scale of fees to be charged where the court exercises jurisdiction under the C. C. Ad. Jur. Acts, 18G8 and 1869, are now regulated by a Treasury Order made January 1, 1889, and set out in Schedule B. Part V. of that order. See Appendix. Sec. 45 of the County Courts Act, 1888 (51 & 52 Vict. c. 43), which enacts that the registrars should be paid by salary, contains an exemption " in respect of special duties under any Act of Parliament," and the Treasury Order mentioned above provides — Treasury "... the several fees or sums in the name of fees specified in the Order. schedules hereunder written shall be taken on the proceedings therein mentioned in lieu of all other fees for the proceedings set forth ; and that the fees so authorized to be taken, with the exception of the fees mentioned in the Schedule B., shall be received by the registrars of the different county courts, and shall be accounted for and paid over by them to the treasurers of their respective courts, or, when there is no treasurer, the superintendent of county courts, and the fees set forth in Schedule B., shall be received by the legistrars for the use of them- selves and the high bailifts, according as the duties are to be performed by the registrars or high bailiffs." As to the words " General Orders " in sec. 1 7 of the C. C. Ad. Jur. Act, 1868, see jyost, notes on ss. 05 and 36. Sec. 18, c. 18. A scale of costs and charges in Admiralty causes Act, 1868. in the county courts shall be prescribed by General Scale of Orders. costs. As to " General Orders," see post, sees. 35 and 36. The scales of costs in force in the county courts are contained in the appendix to the County Court Eules, 1892 (see "Costs" and Appendix, post). Sec. 19, c. 19. The registrar of a county court shall have power , ^ f ^I'oio^' to administer oaths in relation to any Admiralty cause Power to in a county court ; and any person who shall wilfully legis lars (jgpQ^g qj. affirm falsely before the registrar in any EVIDENCE. 79 Admiralty cause shall be deemed to be guilty of perjury, toadmiuis- and shall be liable to all the pains and penalties attach- *'^'" "^'^'' ■• ing to wilful and corrupt perjury. The power conferred by this section on the registrar to administer oaths related to his duties as an examiner, as defined in the next section. The registrar now also receives evidence References in references on the assessment of damages, but this power to of damages. refer matters of account to the registrar was only conferred on the county court judges by the County Court Act, 1888, sec. 92— " • • • The judge may, after deciding or reserving any question of liability, refer to the registrar any mere matter of account which is in dispute between the parties, and, after deciding the question of liability, may give judgment on the registrar's report;" and Order XXXIX. b.. County Court Eules, 1889, rr. G5-73 (County Court Eules, 1892, rr. 130-138). For which see p. 180. 20. Evidence taken in any Admiralty cause before Sec. 20, C the registrar of a county court, as the judge of a county j^^'^ ises? court or General Orders shall direct, shall be received as Evidence evidence in any other county court, saving all iust before •^ "^ 11 registrar exceptions ; and the registrar of any county court shall, receivable for the purpose of the examination of any witnesses ^dmiraltv within the district of that court, have all and the like Court. powers and authorities of an examiner of the High •Court of Admiralty of England, and evidence taken by him in that capacity shall be received as evidence in the High Court of Admiralty of England, saving all just exceptions. The judge will only make an order for the examination of witnesses when it shall aj)pear necessary for the purposes of justice so to do ; and a general order for all witnesses to be examined before the registrar would be bad. The usual grounds for allowing a witness to be examined before an examiner are ill-health, infirmity or old age, or the fact that the witness has to go abroad before the trial. The rules regulating examinations of witnesses in the county courts (see County Court Eules, 1889, Order XVIII. rr. 14-28, Appendix) are based on the rules of the High Court, 80 ADMIRALTY JURISDICTION IN COUNTY COURTS. Sec. 21, C. C. Ad. Jur. Act, 1868. Where proceed- ings in county court to be com- menced. Sec. 74, County Courts Act, 1888. Order XXXVII. rr. 5-19, and there is nothing special iu. Admiralty practice, except the employment of a shorthand writer (see p. IToj. It should be noted that the power of county court judges to order evidence to be taken on commission is limited to England and Wales (County Court Rules, 1889, Order XYIII. r. 1-1, see Appendix), and that the necessity of sending a com- mission elsewhere is a ground for bringing the action in the High Court, or for transferring it to the High Court. 21. Proceedings in an Admiralty cause shall be com- menced — (1) In the county court having Admiralty jurisdic- tion within the district of which the vessel or property to which the cause relates is at the^ commencement of the proceedings : (2) If the foregoing rule be not applicable, then in the county court having Admiralty jurisdiction in the district of which the owner of the vessel or property to which the cause relates, or his agent in England resides; or if such owner or agent does not reside within any such district, then in the county court having Admiralty jurisdiction the district whereof is nearest tO' the place where such owner or agent resides : (3) If for any reason the last foregoing rule is not applicable or cannot be acted on, then in such county court having Admiralty jurisdiction as- General Orders direct : (4) In any case in the county court or one of the county courts having Admiralty jurisdiction in which the parties b}^ a memorandum, signed by them or by their attorneys or agents,, agree shall have jurisdiction in the cause. Sec. 74 of the County Courts Act, 1888, enacts — "Except where by this Act it is otherwise pruvided, everj' action or matter may be commenced in the court within tlie district of which the defendant or one of the defendants .'•hall dwell or carry on his business at the time of commencing the action or matter, or it maj' be commenced, by leave of the judge or registrar, in the court within COMMENCEMENT OF PROCEEDINGS. ^Sl ',he district of which the defendant or one of the defendants dwelt or carried on business, at any time within six calendar months next before the time of commencement, or, with the like leave, in the court in the district of which the cause of action or claim wholly or in ,^iart arose." Section 1 of the C. C. Ad. Jur. Amend. Act, 18G0 (32 & ;j;j Vict. 51), which is set out at p. 1, enacts that the Acts of 1868 iind 1869 are to be read together; and sec. 3 of the (J. C. Ad. Jur. Amend. Act, 1869, enacts — 3. The Jurisdiction conferred by this Act, and by the c. c. <3. C. Ad. Jur. Act, 1S6S, may be exercised either by '^'„"gQ,7' /jjroceedings in rem or by proceedings in ijersonmn. Act, j.869, sec. 3. Therefore actions brought under the C. C. Ad. Jur. Amend. Act, 1869, can be commenced as defined in sec. 21 of the C. C. Ad. Jur. Act, 1868 (Tlie County of Durham, 1891, P. 1, 6 As}}. County of '606; Pugslcy v. Boxjldns, 1892, Q. B. 184, 7 Asp. 215). Durham. In The County of Durham {iibi sup.^ an action was instituted -by the owners of the steamship County of Durham, resident at JVewcastle, in the County Court of Newcastle under its .Vdmiralty jurisdiction, on a charter-party for injuries sustained by their steamship through grounding whilst going to the defendants' wharf at Poole, under a warranty contained in the charter-party as to the depth of water. At the time the miction was commenced, the County of Durham was within the jurisdiction of the Newcastle County Court. Held by the Divisional Court : The " cause related " to the shii?, and was rightly instituted under sec. 21, sub-s. (1), of the C. C. Ad. Jur. Act, 1868, and that that court had jurisdiction. In Purjsley v. Ito2)kins (1892, 2 Q. B. 184, 7 Asp. 215), the Fii;/slc>j v. action was instituted on the Admiralty side of the court of -^"P^^'^s. Monmouth at Newport by the plaintiffs, owners of the steam- ship Irwin, resident at Newport, against the defendants, timber merchants carrying on business at Wisbeach, in Cambridge- shire. The action was on a bill of lading, of which the defendants were indorsees to recover demurrage for two days' detention of Tlie Irwin at Wisbeach whilst unloading a cargo of timber. The vessel Irwin, at the date the action was com- menced, was on the high seas, the cargo was in the district of the County Court of Norfolk. Held by the Court of Appeal : The cause related to the vessel, but, as she was on the high seae, sub-s. (1) of sec. 21 of C. C. Ad. Jur. Act, 1868, was not G 82 ADMIRALTY JURISDICTION IX COUNTY COURTS. applicable, and therefore the cause had been rightly instituted! under sub-s. (2). County No General Orders dealing with this subject have been made, V'ss^* '^*^*' ^^ sub-s. (3) of sec. 21 is inoperative; but sec. 74 of the County Courts Act, 1888, being general in its terms, has been held by the Divisional Court to apj^ly to Admiralty actions- (see The Hero, 1891, P. 294, 7 Asp. 86), and therefore Admiralty actions can be instituted either under that section or under sec. 21' of the C. C. Ad. Jur. Act, 1868. It will be observed that sec. 74, County Courts Act, 1888, enlarges the scope of sec. 21 of the C. C. Ad. Jur. Act, 1868, by inserting the place of business, and also in other respects. The Hero. The Hero was an action on a charter-party for detention, in the nature of demurrage, of the steamship Hero. The plaintiffs, shipowners, had their registered office at Bristol ; the defendants were timber merchants at Cardiff. The action was instituted on the Admiralty side of the County Court of Glamorganshire, held at Cardiff. The county court judge dismissed the action for want of jurisdiction, the Hero not being within the juris- diction of the court, nor the plaintiffs residing within that jurisdiction at the commencement of the action. Held, however, by the Divisional Court that jurisdiction was given by sec. 74 of the County Courts Act, 1888. Prnctice as The practice relating to the institution of an Admiralty to institu- j^p^Jqj^ jg contained in the County Court Eules, 1889, Order tion of •' ' ' action. XXXIX. B. rr. 4-7 (County Court Eules, 1892, 69-72). For general practice, see County Court Eules, 1889, Order V., amended by County Court Eules, 1896. Institution of Action. Commence- "4. A plaintiff' desiring to institute an Admiralty action shall file a ment of praecipe stating the nature of the action, and when practicable, his '°"" name, address, and description, and if the proceedings are commenced through a solicitor, the name of the solicitor, and an address within three miles of the office of the registrar at which it shall be sufficient to leave all instruments and documents in the action required to be served upon the party commencing such proceedings, and also stating the name of the owner or other person against whom the action is instituted, or that the action is instituted against the vessel or other property to which the action relates. (Form 317, Appendix.) PlaintifT " 5. When it is not practicable at the time of filing the pra3cipe to may be de- ^^^^^ therein the name of the plaintiff, it shall be sufficient (subject to scribed as . , . ^ •' owner ^he right of the defendant to demand his name) to describe the plaintifL of." as ' owner of the ship or vessel.' PROCEDURE. 83 Notice tf> consul in wages action against foreign vessel. " 6. In Admiralty actions in. rem, no service of summons or warrant Action in shall be required where the solicitor of the delendant af;rees to accept '"''''"• service and to put in bail or to pay money into court in lieu of bail. (Form 334, Appendix.) "7. In an Admiralty action for wages against the owners of a foreign vessel, notice of the commencement of the action shall be given to the consul or vice-consul of the state to which the vessel belongs, if there is one resident within the district of the court, and a copy of the notice shall be annexed to the prajcipe." Order XXXIX. b., Couuty Court Eules, 1889, rr. Sr^ 8?> (County Court Eules, 1895, rr. 30, 31), are as follows : — Particulars and Summons. "8a. Particulars. — A plaintiff desiring to institute an Admiralty Pavticu- action shall, when the claim is of a liquidated nature, and may, in an llication of either party, appoint a ■' ^^'' valuer to value that propeity, and shall give copies of the valuation. to both parties. APPRAISEMENT. 89 "(2) Auy copy of the valuation purporting to be signed by the valuer, and to be certified as a true copy by the receiver, shall ie admissible as evidence in any subsequent j^roceeding. " (3) There shall be paid in respect of the valuation by the persun applying for the same such fee as the IJoard of Trade may direct." But sec. 547, snb-s. (5), provides — " Nothing in this Act relating to the procedure in salvage cases shall Sec. 547. affect the jurisdiction or procedure in salvage cases of a county court ^ub-s. (y). having Admiralty jurisdiction by virtue of the C. C. Ad. Jur. Act, 1868, or the Court of Admiralty (Ireland) Act, 18G7, or any Act amending either of those Acts." If the property bad been valued by tbc receiver under sec. 551, sbould either party to tbe county court action demand an appraisement, tbe court would no doubt exercise its dis- cretion in condemning bim in tbe costs of sucb appraisement, in the absence of any very strongly justifying circumstances (see The Ladij Katharine Barham, Lush. 40-1) . Section 552 of tbe M. S. Act, 1894, also gives tbe receiver power to detain property liable to salvage until payment has been made for salvage, or process is issued for tbe arrest or detention thereof by some competent court. "552. (1) Where salvage is due to anv person under this Act, the Sec. 552. receiver shall- " !;l'n-fertv " (a) if the salvage is due in respect of services rendered in assisting "; J^|°^". -^ any vessel, or in saving life therefrom, or in saving the salvage by cargo or ap[arel thereof, detain the vessel and cargo or a receiver, apparel ; and "(?/) if the salvage is due in respect of the saving of any wreck, and the wreck is not sold as unclaimed under the Act, detain the wreck. "(2) Subject as hereinafter mentioned, the receiver shall detain the vessel and the cargo and apparel, or the wreck (hereinafter referred to as detained property), until payment is made for salvage, or process is issued for the arrest or detention thereof by some com- petent court. "(3) A receiver may release any detained property if security is given to his .satisfaction, or if the claim for salvage exceeds two hundred pounds and any question is raised as to tlie sufticiency of the security, to the satisfaction in England or Ireland of the High Court, and in Scotland of the Court of Session, including any division of that court, or the lord ordinary officiating on the bills during vacation. " (4) Any security given for salvage in pm-suance of this section to an amount exceeding two hundred pounds may be enforced by such 90 ADMIRALTY JURISDICTION IX COUNTY COURTS. •C. C. Ad, Jur. Act, 1868, sec. 23. IPower to assue process. Execution against a vessel. CDiirt as aforesaid in the same manner as if bail had been given in that niurr." The doubt expressed by Sir Eobert Phillimorc as to the power of the couuty court to enforce a bond (The John Evans, '2 Asp. 2.'i4) does not appear to have been removed by the slightly different wording of sec. 552 of the Act of 1894 from sec. 468 of the Act of 1854. 23. For the execution of any decree or order of a county court in an Admiralty cause the court may order, and the registrar on such order may seal and issue, and any officer of any county court may execute, process according to General Orders ; provided that where under such process a vessel or property would or might be sold, then, if the owner of the vessel or property desires that the sale should be conducted in the Hiofh Court of Admiralty instead of in the county court, he shall be entitled, on security for costs being first given, and subject and according to such other provisions as General Orders direct, to obtain an order of the county court for transfer of the proceedings for sale, with or without (as the judge of the county court thinks fit) the transfer of the subsequent proceedings in the cause, to the High Court of Admiralty, which court shall have juris- diction and all powers and authorities relating thereto accordingly. The Admiralty j^ractice, in so far as it differs from the common law jiractice, being alone dealt with in these pages, for the general powers of county courts to enforce process, see sec. 146, County Courts Act, 1888 (51 & 52 Vict. c. 43); and Orders XXIII. r. 5, and XXV. of the General Orders (County Court Rules, 1889) ; and the Annual Couuty Courts Practice. As to the special case of execution against a vessel, Order XXXIX B., County Court Rules, 1 889, rr. 40-43 (County Court Rules, 1892, rr. 105-108), provides as supplementary to the general practice under Order XXIII. r. 13, as to sales of property. Execution against Vessel. "40. Wliere under a warrant of execntion a vessel is seized, the high luiliff shall, befoi'o selling the same, cause an inventory and EXECUTION. 91 valuation thereof to be made by an appraiser, anel sliall not be sold for less than the appraised value thereof, except by order of the court. The appraiser shall be allowed lOs. per cent, on the appraised value of the vessel, and a reasonable sum for travelling expenses and maintenance if the vessel is beyond tliree miles from registrar's oflice. "41. On the completion of the sale the high bailiff shall pay the Proceeds to proceeds arising therefrom into court, return the warrant, and file an }je paid ^ ° -111- 1 into court, account of the sale and of his fees thereon, signed by him, together with the certificate of appraisement signed by the appraiser. "42. On the completion of the purchase the high bailiff shall deliver Delivery of up the property to the i)nrchaser, and, if required so to do, shall proi'«i'tyto execute a bill of sale to hini at the expense ot the purchaser. "43. The costs of the solicitor suing out execution to be taxed by Costs of the registrar shall be allowed and be recoverable against the property execution. taken in execution." When judgment has been obtained against an unknown defendant, Order XXXIX. b., County Court Eules, 1889, rr. 37-39 (County Court Rules, 1892, 102-104), provides— Enforcement of Orders. "37. Where a judgment or order has been obtained against an Proceed- unknown defendant, the vessel or property to which the action '°§^ ^ relates shall not be taken in execution, but it may be arrested and unknown detained under the provisions of sec. 22 of the C. C. Ad. Jur. Act, defendant. 1868, or kept under arrest, if already arrested " (see p. 8-1). This rule appears only to apply to actions in rem in \s'hich there has been no appearance, as to institute an action in ^ersoitam the defendant must be known and have been served either i)ersoually or by substituted service. See Order XXXIX. B., County Court Eules, 1889, r. 13 (County Court Eules, 1892, r. 78). "38. Where a judgment or order has been obtained in an action Proceed- against an unknown defendant, and the name of the defendant is ings on dis- subsequently ascertained, the adverse party may deliver to the regis- '^"y^J \ trar a praecipe stating the name, address, and description of the defendant, defendant, and thereupon the registrar shall is^sue to the solicitor, if such praecipe is delivered through a solicitor, or to the bailiff for service, a notice of the judgment or order, stating thereon that if the defendant does not within four clear days from the day of service deliver a i:)r£ecipe to the registrar applying for a re-hearing of tlie action, the ve-isel or property to which the action relates will be sold in execution." (Praecipe, Form 317, Appendix.) 1)2 ADMIRALTY JUKISDICTIOX IX COUNTY COURTS, Service of " 39. The notice in the List preceding rule mentioned shall be "°^."^®.*''^ served personally upon the deleiidant, unless the judge or registrar shall upon facts duly verified upon affidavit allow of substituted service." (Forms 30 & 31, Appendix.) Under tlaese rules, if no defendant appears it is necessary for the plaintiff to ascertain the name of the owner of the ship proceeded against. In the case of a British ship this is easily done — if the information cannot be obtained from the master or person in charge — by searching the register at the ship's port of registry (M. S. Act, 1 89-t, sec. G4). In the case of a foreign ship, the information would probably be obtained from the consul ; failing this, it would apj)ear to be a case for transfer to the High Court, under sees, G, 8, and 23 C, C. Ad. Jur. Act, 18G8, ante, pp. GO, Gl, 90; and see Order XXXIX b,, County Court Eules, 1889, r. 45, 'mfra, and p. 134. Transfer to The latter part of sec, 23 gives the owner of a ship which r 'f ] ""^ has to be sold the opjiortunity of availing himself of the machinery of the High Court for the sale (see Eoscoe, Admiralty Practice, note to Orders XLI, of Supreme Court). The General Orders regulating transfer are contained in Order XXXIX, b., County Court Rules, 18 89, rr. 44-4(>. (County Court Rules, 1892, 109-111), Tranfffer of Sale. Proceeil- " ^i. Where the vessel has been arrested or has been seized under a ings oil warrant of execution, and the hale of the vessel has been ordered to transfer ]jq transferred to the High Court, the vessel shall be retained by the high bailifl" until the marshal shall, by order of the High Court, take possession thereof. "45. The party desiring that the sale of any vessel or property should be conducted in the High Court of Justice, may at auj' time after judgment give security to the amount of £10, and deliver to the registrar an application for an order fur tlie transfer of the proceedings for sale to the said Higli Court. "46. The registrar .^liall transmit the application in the last preceding rule mentioned to the judge lor his order thereon, if the court is nut sitting, and shall iu any case certify on the application that the security fur costs has been given." Provisions for the transfer for sale to the High Court, on aix appeal, by a judge of the P. D. and A, Division are contained in sec. 32 (see p. llOj. C. c. Ad 24. Such decrees and orders of county courts iii Jur. Act, JUDGMENTS AND RECOEDS, 93 Admiralty causes as General Orders .shall direct shall be ^iSG^^^ •registered with the Registrar of County Court Judgments "uegisti-a- in London in such manner as General Orders shall direct. J,'°°jJ^ ^^^ j Sec. 183 of County Courts Act, 1888, is as follows :— °!^J^'^"^^ . -1 , ; 1 • ii L c i.\ ^ Courts Act, "183. A register ot every jmlgment entered in the courts loi the ^ggg ^^^ ' sura of ten pounds and upwards, and of every such other judgment or i83. order as may be prescribed, shall be kept in such manner, in such place, and under such regulations as the Treasury shall appoint; and for the inspection of the said register when formed such fees shall •be charged to persons desirous of inspecting the same as shall be appointed by the Treasury, and the proceeds of such fees shall be applied, in such manner as the Treasury shall appoint, in paying the expenses incurred in maintaining the said register ; and the surplus of such fees, after providing for the payment of such expenses, shall be paid over to the credit of the consolidated fund." Order XXXVI. of County Court Ptules, 1889, rr. 1 and 2, jjrovides — Registry nf Judgments. " 1. A return of every judgment entered in ' The City of Loudon Keturn of Court' for the sum of £10 and upwards, shall be transmitted by the ^^ ^\TJ registrar to the Registrar of County Courts Judgments in London, in London the same manner as returns of judgments entered in a county court Court, are now transmitted. "2. A note of every judgment or order in an Admiralty action, or Note of in any action which, before the 1st November, 1875, would have been 7^|,^\,!"i; the subject of a plaint or petition in equity, shall within ten days of ^^^ equity the making thereof be transmitted by the registrar to the Registrar of to be sent County Courts Judgments in London, who shall register the same as ^^J^_^^''^ heretofore." office. Order XXXIX. b., County Court Rules, 1889, 54-57 (1892, 119-122) provides— Itecords of the Court. " 54. The parties in an action, their solicitors, or the clerks of the Inspectit solicitors may, while the action is pending, and for one year after its termination, inspect, free of charge, all the records in the action. " 55. In a pending action no person other than the parties, their Who solicitors, or the clerks of the solicitors, shall be entitled to inspect the records in the action without the permission of the registrar. " 56. In an action which has been finally disposed of any person may, on delivering to the registrar a prfecipe, and on payment of the proper fee, inspect the records in the action. entitled to. 94 ADMIRALTY JURISDICTION IN COUNTY COURTS. Copies. C. C. Ad. Jur. Act, 1868. sec. 25. Concurrent jurisdic- tion of the Court of I'assacre. C. C. Ad. Jur. Amend. Act, 1869. Court of Passage to make general rules aud orders. Limits of jurisdic- tion of. Copies. "57. Any person entitled to inspect any instrument or document in an action shall, on delivering to tiie registrar a jjrajcipe, and on pay- ment of the proper charges fur tlie same, be entitled to an office copy thereof." For Treasury Order as to fees, see Appendix. 25. The Court of Passage of the Borough of Liverpool shall, upon an Order in Council being made which shall appoint the County Court of Lancashire holden at Liver- pool to have Admiralty jurisdiction, have the like jui'is- diction, powers, and authorities as by that order are conferred on the said county court ; but nothing herein shall be deemed to enlarge the area over which the jurisdiction of the Court of Passage extends, or to alter the rules and regulations for holding the said court, or to take away or restrict aii}^ jurisdiction, power, or authority already vested in that court ; and fees received in that court under this Act shall be dealt with as fees received in that court under its ordinary jurisdiction. Sec. 6, C. C. Ad. Jur. Amend. Act, 1869 : 6. The assessor of the Court of Passage of Liverpool shall have power from time to time to make general rules and orders for regulating the practice and pro- cedure of the Admiralty and maritime jurisdiction in the said court, and for other purposes mentioned in section thirty-five of the County Courts Admiralty Jurisdiction Act, 1868 ; and any general rules and orders already made or hereafter to be made by the said assessor for any of the j^urposes aforesaid shall be of full force and effect as if the same had been made under this or the aforesaid Act. The Court of Passage of the Borough of Liverpool is an " Ancient Court of Record for the trial of civil actions " (Liverpool Court of Passage Procedure Act, 1853, 16 & 17 Vict. c. xxi., Local and Personal) having jurisdiction over all comnion law causes of whatever amount arising within the borough, and by apparently immemorial usage it has exercised a common law jurisdiction over all causes arising within the COURT OF PASSAGE, 95 port of Liverpool ("Court of Passage Practice," Russell, p. 15). The limits of tbe port were stated in the first Liverpool Dock Act (S Anne, c. xii.) as extending down tlie Cheshire side of the Mersey to the Eedstones at Hoylake, and thence all over the river Mersey up to Warrington and Frodsham bridges, at this time the first bridges met with; it will be observed that this definition gives no lower limit on the Lancashire shore. In a report of a Municipal Inquiry, 183.'>, the limits are given as extending from the Eedstones straight to the Floating Light, and thence semicircularly and south- easterly up the mouth of the Eibble, to the mouth of the river Douglas, and then along the Lancashire shore (Eussell's "Practice of Court of Passage," p. 15). Since the date of this rcnort the Floating Light has been shifted several times. The present boundaries of the borough are defined (Order Borough. in Council, Gaz., April 20, 1880), by the Eedistribution of Seats Act, 1885; and of the Port by order under the Custom House Port. Act, 184G {Gaz. 16, Ap. 1850), which states the latter to be to seaward from the Eedstones (in Cheshire) to Hundred End Water (in Lancashire), which is the southern limit of the port of Preston, thus strangely enough taking in all that was granted by the first charter the town obtained in 19 Hen. II. a.d. 1173, which granted to the "town of Lyrpul ' that the whole estuary of the " Mersha " should be for ever a port (Baines' " History of Lancashire " '). The jurisdiction of the County Court of Liverpool in Limits of Admiralty extends seaward, on the Lancashire side of the '^°"°'^>' •' ' , court Mersey, over the district of the county court held at Ormskirk ; jurisdic- and on the Cheshire side, right up the Dee and over the ^''O"- district of the County Court of Cheshire holden at Chester (0. C. Jan. 14, 1867). It will therefore be seen that the territorial limits of the jurisdiction of the County Court of Liverpool are larger than those of the Passage Court, whilst the jurisdiction as to amount is, under the provisions of this section (25), the same. The salient difierences in practice are Practice in that the proceedings in the Passage Court are assimilated to Passage, those in the High Court, both as to proceedings before and at trial. Solicitors have no right of audience in the Passage Court. The pleadings resemble those in the High Court, and preliminary acts have to be filed in collision cases. Hitherto, appeals from the Court of Passage have been heard Appeals. in the Probate Divorce and Admiralty Division, precisely OG ADMIRALTY JURISDICTIOX IN COUNTY COURTS. as county court api:)eals are heard (sec, 26, post^, but it appears that for the future these apjieals, at all events when final, will go direct to the Court of Appeal under the provisions of sees. 8, 10 of the Liverpool Court of Passage Act, 1893 (56 it 57 Yict. c. 37), it having been held by the Court of Appeal that under this Act common law appeals from the court which before the passage of the Act mentioned went to a Divisional Court of the Queen's Bench Division now go to the Court of Appeal direct {Anderson v. Bean [ISO-t], 2 Q. B. 222). It may be a question, however, whether the general words of sec. 10, giving an appeal to the Court of Appeal on the trial of any issue where an appeal would be allowed on a trial at Nisi Prills, refers to Admiralty causes in all cases, irrespective of the limitations of sees. 26 and 31 of C. C. Ad. Jur. Act, 1868, and sec. 120 of the County Courts Act, 1888. If sec. 10 of the Liverpool Court of Passage Act does apply to Admiralty appeals, it is clear that neither sec. 27 of the C. C. Ad. Jur. Act, 1868, nor Order LIX., E. S. C, governs the time and method of appeals from the Passage Court, but the rules made under the S. C. J. Acts as to appeals from the High Court to the Court of Appeal. Sec. 10 aj)pears only to apply to final appeals, that is — to cases where the Court of Passage decides an issue of law or The Alert ^*<^* (^^^ ^^'^ Alert, 7 Asp. 544). 7 Asp. No rules have as yet been issued under the provisions of sec. ^^^' 8, which section is only a particular application of the general principle laid down in sec. 24 of S. C. J, Act, 1884, and is a variation of the provisions of sec. 6, C. C. Ad. Jur. Act, 1869 ; but by the rules actually in force the practice of the Court of Passage is assimilated to that of the High Court of Justice. These rules, as to which see Will, and Bruce Ad. Practice, 2nd edit., p. 787, appear to remain in force till new ones under sec. 8, Court of Passage Act, 1893, are made and approved. A Bill dealing with the Court of Passage is at present under the consideration of Parliament. Costs. It should be borne in mind that sec. 1 1 7 of the County Courts Act, 1 888, applies to this court, and that therefore, if less than £10 is recovered, county court costs only will or can be allowed, the statute being absolute and giving no power to any one to exercise a discretion as to allowing costs, as in the case of small actions brought in the High Court (sec. 11 6, County Courts Act, 1888). APPEALS. 97 The court may also be prohibited from proceeding, aud an injunction may be granted to prohibit a jiarty from proceeding in a cause, by the P. D. and A. or other division of the High Court {The Teresa, 7 Asp. 505). In cases where the debt or damage does not exceed £20, Execution ■exclusive of costs, the provisions of sec. 6 of 35 & 30 Vict, through county c. 86 (Borough Local Court of Eecord Act, 1872) would appear court. to apply as to obtaining execution by means of the machinery of the county courts. 26. An appeal may be made to the High Court of C. c. Ad. Admiralty of England from a final decree or order of iggg^ ' a county court in an Admiralty cause, and, by per- Y^" ^^," mission of the judge of the county court, from any Probate, interlocutory decree or order therein, on security for g,'|^°''^^' costs being first given, and subject to such other pro- Admiralty visions as General Orders shall direct. Appeals from the Admiralty jurisdiction of the county court used to be to the judge of the Admiralty Court alone. But now Order LIX. r. 4 of the Eules of the Supreme Court, 1883, made under sec. 17 of the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), as amended by sec. 19 of the Judicature Act, 1881 (44 & 45 Vict. c. 68), provides that such appeals shall be to a divisional court of the Admiralty Division as follows : — Order LIX. 4 : " Every judge of the High Court of Justice for the time being shall be a judge to hear aud determine appeals from inferior courts, under sec. 45 of the principal Act. All such appeals (except Probate and Admiralty appeals from inferior courts, and from justices, which shall be to a divisional court of the Probate, Divorce, and Admiralty Division) shall be entered in one list by the officers of the Crown Office Department of the Central Office, and shall be heard by such divisional court of the Queen's Bench Division as the Lord Chief Justice of England shall from time to time direct." For all the provisions dealing with this subject in historical order, see Appendix. Appeals from interlocutory orders made by the county Appeals court in Admiralty actions are in practice also heard by the , °"1 '"^'^''' Divisional Court of the Probate, Divorce, and Admiralty orders. Division, but, having regard to the fact that before the R. S. C, Order LIX. r. 4, came into force, these appeals were heard by a single judge, it would appear doubtful whether, under the H 98 ADMIRALTY JURISDICTION IN COUNTY COURTS. saving clause of Order LIX. r. 1, R. S. C, interlocutory appeals cannot still be heard by a single judge. Order LIX. r. 1 : 1. The following proceedings and matters shall continue to be heard and determined before divisional courts ; but nothing herein contained shall be construed so as to take away or limit the power of a single judge to hear and determine any such proceedings or matters in any case in which he has heretofore had power to do so, or so as to require any interlocutory proceeding therein heretofore taken before a single judge to be taken before a divisional court : — Motions Motions incidental to the appeal, but which do not involve to^he"*^ the decision of the appeal, it is submitted, when no special appeal. provision to the contrary has been made, may be heard by a single judge under the provisions at the end of sec. 164 of the County Courts Act, 1888— "... In any case not expressly by this Act or in pursuance thereof provided for the general principles of practice in the High Court of Justice may be adopted and applied to actions and matters." And sec. 52 of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66)— " In any cause or matter pending before the Court of Appeal, any direction incidental thereto, not involving the decision of the appeal, may be given by a single judge of the Court of Appeal ; and a single judge of the Court of Appeal may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal as he may think fit ; but every such order made by a single judge may be discharged or varied by the Court of Appeal or a divisional court thereof." In The Eclipse (6 Asp. 409) (a motion for leave to produce further evidence on the appeal), the application was entertained by one judge in the Admiralty Division. In that case, how- ever, the court appears to have acted under the j)rovisions of Order LIX. r. 17, R. S. C. 1883, attention not being drawn to r. 9 of the same order, which limits r. 17 to Queen's Bench actions. Order LIX. r. 8, which is as follows : — "On any motion by way of appeal from an inferior court, the court to which any such appeal may be brought shall have power, if the notes of the judge of such inferior court are not produced, to hear and determine such appeal upon any other evidence or statement of what occurred before such judge which the court may deem sufficient ; " APPEALS. 99 gives power to a divisional court to make sucli an order as to evidence, and in the case of The Crescent (7 Asp. 297, 41 W. R. 533) an ajiplication was made to the divisional court and granted to have all the evidence reheard, as there was no note of the evidence in the court below, and this was carried to the Court of Appeal. In this case, however, the authority of a single judge to have made the order was not in question, but whether such an order could be made at all. As the point has not been directly decided, and as there can be no question of the power of the divisional court to entertain such motions, the safer course will be to bring both inter- locutory appeals and such incidental motions before the divi- sional court, which sits at present on the first Tuesday in each month during the sittings. In one or two recent cases, the point being doubtful, a divisional court has been formed at once to hear the application. As to the power of a single judge in cases of prohibition (County Courts Act, 1888, sees. 127, 128), see « Prohibition," posf, p. 154. The appeal under the above section (26) of the C. C. Ad. Jur. Act, 1868, was limited (see sec. 31, posi, p. 108) to cases where the amount decreed, or ordered to be due exceeded £50 ; but sec. 120 of the County Courts Act, 1888 (51 & 52 Vict. c. 43), and which, as will be seen hereafter, has been held to apply to Admiralty actions, is as follows : — "120. It" any party in any action or matter sball be dissatisfied with County the determination or direction of the judge in point of law or equity, or Courts Act, upon the admission or rejection of aoy evidence, the party aggrieved ^^^ ^go by the judgment, direction, decision, or order of the judge may appeal fioni the same to the High Court, in such manner and subject to such conditions as may be for the time being provided by the rules of the Supreme Court regulating the procedure on appeals from inferior courts to the High Court; provided always, that there shall be no appeal in any action of contract or tort, . . . where the debt or damage claimed does not exceed £20, . . . unless the judge shall think it reasonable and proper that such appeal should be allowed, and shall grant leave to appeal. At the trial or hearing of any action or matter, in which there is a right of appeal, the judge, at the request of either party, shall make a note of any question of law raised at such trial or hearing, and of the facts in evidence in relation thereto, and of his decision thereon, and of his decision of the action or matter." Final appeals, therefore, in causes within the Admiralty jurisdiction of the county court, lie to a divisional court of the Admiralty Division, which court will be constituted as 100 ADMIRALTY JURISDICTION IN COUNTY COURTS. prescribed by sec. 17 of the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), as amended by sec. 19 of the Supreme Court of Judicature Act, 1881 (44 & 45 Vict. c. 68), that is, as a general rule, of the two judges of tbe division, or, in tbe absence of one of them, of tbe remaining judge, and any other judge temjiorarily attached to the division. As the division only consists of two judges, it may be doubt- ful whether the provisions of the Appellate Jurisdiction Act, 1876, as to three judges sitting under special circumstances, apply to it. Leave for Sec. 26 of the C. C. Ad. Jur. Act, 1868, gives an appeal in interlo- interlocutory proceedings only by permission of the judge of appeal, the county court (T/ie Alert, 7 Asp. 544). Sec. 120 of the sec. 26, County Courts Act, 1888, gives an appeal in interlocutory Jur. Act' proceedings (Gilson v. Kilner, 69 L. T. 310) without any such 186*8. ' restriction. In The Cashmere (15 P. D. 121, 6 Asp. 515) this Query as latter section was held not to overrule the express condition Jec 1% " contained in sec. 26, that leave must be obtained, but it must County be noted that one of the grounds of the judgment in this case 188?' ''^'*' ^^^ ^^^^ ^^^' ^'^^ °^ *^^ County Courts Act, 1888, did not apply to interlocutory appeals, a decision which is not in accordance with the more recent case of Gilson v. Kilner (libi su}).^, and that since the decision of The Cashmere, the Court of Appeal has further considered the effect of the provisions of the Act of 1888 on those of the Act of 1868 in The Delano (1895, P. 40). But even if sec. 120 does apply to interlocutory matters, as held by the divisional court of the Queen's Bench Division in Gilson v. Kilner, it would appear to be a general provision covering the same ground as sec. 26 of the C. C. Ad. Jur. Act, 1868, and with nothing in it to overrule the special provision of leave being required in Admiralty interlocutory appeals, as the question of amount does not generally enter into an interlocutory apj)eal (^The Alert, 7 Asp. 544), and therefore the distinction by the Court of Appeal in the case of The Delano, between appeals under the two Acts, would not ap2)ly {Kirby v. North British, etc., Ins. Co., 1896, 2 Q. B. 99). Under the circumstances, therefore, it will be prudent to obtain leave from the county court judge, and only come to the divisional court and have the point decided when he has refused it. uEiec ^^ ^^ apjjeal under sec. 120 of the County Courts Act, 1888, 120. it is a condition precedent to appeal that the point of law APPEALS. 101 should Lave been raised and submitted to tbe county court Courts Act, judge (Smith v. BaJcer, 1891, A. C. 325) ; it is also a condition J^ion of precedent to appeal that the county court judge should be law must requested to make a note in accordance with the statute, and be properly ■*■ , raised. the court will only act under Order LIX. r. 8 when the application for a note has been properly made to the judge of the county court at the trial, but nevertheless no note is forthcoming {CooJc v. Gordon, 61 L. J. Q. B. 445). Before the first step is taken in an appeal under sec. 26 of Under sec. the C. C. Ad. Jur. Act, 1868, security for costs must be given ^^l%f^ in the court below (for practice see sees. 108, 109, County Act, 1868, Courts Act, 1888, App. ; and County Court Eules, 1889, Order ^^«junty XXIX., App.), as it has been held to be a condition precedent condition to found the jurisdiction of the High Court (Tlie Forest Queen, precedent L. E. 3 A. & E. 299, 3 M. L. C. 508 ; The Ganges, 5 P. D. 247, ° ''^'P'" * 4 Asp. 317). This provision appears not to apply to final appeals under sec. 120 of the County Courts Act, 1888, on a point of law where the amount in dispute is less than £50 (^Neptune S. N. Co. v. Sclater, The Delano, 1895, P. 40, 47, 7 Asp. 523). The particular point was not before the court in that case ; but, as regards interlocutory appeals, it may be argued that as the County Courts Act before 1868 gave no appeal in interlo- cutory matters (Carr v. Stringer, 2 El. B. & E. 123), whilst sec. 26 of the Act of 1868 gave such an appeal in Admiralty causes, but subject to the condition of security, the Act of 1888, giving an interlocutory appeal generally, cannot affect the former Act. This would appear consistent with the judgment of Bruce, J., in The Tynwald (1895, P. 142, 7 Asp. 539), delivered after the decision in The Delano (uhi sup.). In this doubtful condition of the law, it will be expedient to offer to give security. As to discretionary power of the High Court to extend the Practice on time for appealing and giving security, see sec. 21, post, p. 104. ^^^^^ ' No General Orders specifically dealing with appeals have ever been made under the C. C. Ad. Jur. Acts. Eule 77 of the General Orders of 1868 prescribed that the general rules, orders, and practice in county court actions should, subject to any rule contained in the General Orders of 1868, be followed as far as applicable in Admiralty actions. The General Orders of 1868 were repealed by the Coimty Court Rules, 1875. The Admiralty rules of the county court now in force. Order XXXIX. B., contain no directions as to appeals. 102 ADMIRALTY JURISDICTION IN COUNTY COURTS. Order LI. r. 26, County Court Eules, 1889, is as follows :— "The general practice of the court prescribed by these rules shall ^Pply to all proceedings whatsoever authorized by any existing or future Act to be commenced or taken in any county court, except and so far as such practice may be inconsistent with the provisions of any such Act ; " and the " general practice " as to appeals is contained in Order XXXII. Appeals. " 1. Appeals shall be had in accordance with the provisions of the Eules of the Supreme Court, made under the Supreme Court of Judi- cature Act, 1884. "2. When the Court of Appeal has pronounced judgment, either party may deposit the same, or an office copy thereof, with the registrar of the county court, and upon being so deposited such judg- ment shall be filed and may be enforced as if it had been made by the county court. "3. A new trial in pursuance of the order of the Court of Appeal, shall be entered for trial at the county court which shall be holden next after twelve clear days from the time when such order or office copy thereof shall have been deposited as aforesaid, unless the parties agree that it shall take place sooner, or the judge otherwise order, and it shall be conducted in the same manner as any new trial granted by the county court itself. "4. If the order of the Court of Appeal be that judgment shall be entered for either party, then such judgment shall be entered accord- ingly, and the successful party shall be at liberty to proceed on such judgment as on a judgment of the county court." The above four rules, read in conjunction with E. S. C, Order LIX. rr. 7 and 18, and sec. 122 of the County Courts Act, 1888, which are given below, govern the actual practice in Admiralty appeals from county courts, as the E. S. C, Order LIX. rr. 9-17, apply only to apj)eals from county courts to the Queen's Bench Division, or, in other words, to common law appeals. County Courts Act, 1888, sec. 122: County "On the hearing of an appeal, the High Court shall have power to 1888 ** ^ ' ^•'^^ ^"y inference of fact, and may either order a new trial on such 122. ' * terms as the court shall think just, or may order judgment to be entered for any party, as the case may be, or may make a final or other order on such terms as the High Court may think proper to ensure the determination on the merits of the real questions in con- troversy between the jjarties." ASSESSORS ON APPEAL. 103 Rules of Supreme Court, Order LIX, : " E. 7. On any motion by way of appeal from an inferior court, the court to which any such appeal may be brought shall have power to draw all inferences of fact which might have been drawn in the court below, and to give any judgment and make any order which ought to have been made. No such motion shall succeed on the ground merely of misdirection or improper reception or rejection of evidence, unless, in the opinion of the court, substantial wrong or miscarriage has been thereby occasioned in the court below." " K. 18. Appeals from inferior courts shall, in the construction^ of Order LIX., include every appeal, motion, or application to set aside or vary any verdict or judgment in or of any county court, or for a new trial in action in the High Court remitted to such county court for trial or otherwise." As to method of appeal in use see notes to sec. 27, p. 104. Sec. 125, County Courts Act, 1888— " Where an Admiralty action has been heard in the court with the Assessors assistance of nautical assessors. Elder Brethren of the Trinity House °^ appeal, shall be summoned to assist on the hearing of an appeal by the High Court if either party shall require the same, and the High Court shall be of opinion that the assistance of the Elder Brethren is necessary or desirable ; " relates to Admiralty appeals from county courts generally. It was the practice of the Admiralty Court before the County Courts Act, 1875, sec. 11 of which Act was identical in terms with the above section, to summon Elder Brethren of the Trinity House as assessors whenever the judge or either of the parties considered their presence to be desirable. Sec. 56 of S. C. J. Act, 1873 (36 & 37 Vict. c. 66), extended the power of summoning skilled persons as assessors beyond the Elder Brethren, and advantage has been taken of the latter section to summon engineer assessors when their pre- sence was desirable (The Marina, 29 W. E. 508), and in a case in which the Trinity House was interested, nautical assessors who did not belong to that corporation. Under sec. 125, County Courts Act, 1888, there is no provision for summoning such assessors to hear a county court appeal, and this is the more remarkable as sec. 5 of the C. C. Ad. Jur. Amend. Act, 1869, as already noted (see pp. 69, 76, ante), gives special power to the county court to summon mercantile, as distinguished from nautical, assessors. If they can be sum- moned at all on an appeal, it is under the general provisions of sec. 56 of S. C. J. Act, 1873. 104 ADMIRALTY JURISDICTION IX COUNTY COURTS. Appeals on Appeals in Admiralty actions are often on questions of on appel-^ ^^^' alone where the amount in dispute is above £50. In a lant. recent common law case, the oi^us on the appellant in the. Court of Appeal, where the question was one of fact only^ was decided thus : The in-esumption is that the decision of the court below on the facts was right, and that presumption must be displaced by the appellant. If he satisfactorily make out that the judge below was wrong, then, inasmuch as the ajjpeal is in the nature of a re-hearing, the decision should be reversed ; if the case is left in doubt, it is clearly the duty of the Court of Appeal not to disturb the decision of the court below. It is also pointed out that when the judge below has himself seen the witnesses, the Court of Apjjeal is the more unwilling to disturb his decision [Savage v. Adam, W. N., 1895, 10^ [11]; Colonial Securities Trust Co., Ltd., v. Massey, 1896, 1 Q. B. 38). And the same principle is acted on in the ultimate appeal to the House of Lords (T/ic P. Caland, 1893, A. C. 207,, jier Lord Herschell, p. 215). c. C. Ad. 27. No appeal shall be allowed unless the instrument ise's^*^^' ^^ appeal is lodged in the registry of the High Court sec. 27. of Admiralty within ten days from the date of the apped.**^ decree or order appealed from, but the judge of the High Court of Admiralty of England may, on sufficient cause being shown to his satisfaction for such omission, allow an appeal to be prosecuted, notwithstanding that the instrument of appeal has not been lodged within that time. County Sec. 120, County Courts Act, 1888 : jg88 ' "If any party in any action or matter shall be dissatisfied with the sec. 120. determination or direction of the judge in point of law or equity, or upon the admission or rejection of any evidence, the party aggrieved by the judgment direction, decision, or order of the judge may appeal from the same to the Higli Court in such manner and subject to such conditions as may be for the time being provided by the rules of the Supreme Court regulating the procedure on appeals from iuferioK courts to the High Court. . . ." These two sections now govern the method of appeal to the High Court. Until the passing of the County Courts Act, 1875, it was always considered that the Admiralty appeals were governed by the C. C. Ad. Jur. Acts alone, and that the pro- visions of sec. 14 of the County Courts Act, 1850, now repealed. METHOD OF APPEAL. 10.- similar to those now contained in sec. 120 of the County Courts Act, 1888, did not apply to Admiralty actions, so far as to qualify the express provisions of sec. 31 of C. C. Ad. Jur. Act, 1868, q.v.,post, p. 108. Sec. U of the County Courts Act, 1850, in terms gave the appeal to any of the superior courts of common law, and the Admiralty Court was not a superior court (The Becejota, 1893, P. 259, per Lord Esher), nor a court of common law. Sec. G of the County Courts Act, 1875 (now repealed by County Courts Act, 1888), only gave an alternative mode of appealing to that provided by sec. 26 of C. C. Ad. Jur. Act, 1868 (The Humher, 5 Asp. 181), where "any person aggrieved has a right of appeal." Since 1888 it has been recognized that sec. 120 of the County Courts Act, 1888, gives an appeal on a point of law or equity, etc., in all cases within its purview. From the observations of the M. E. in The Delano (1895, P. 40, 47, 7 Asp. 523), it appears that when the appeal is an appeal on fact, and the amount in dispute exceeds £50, the appeal must be instituted by lodging the instrument of appeal within the time prescribed by sec. 27 ; but that where the appeal is on a point of law or equity, etc., in an action where the amount in dispute is less than £50, the appeal must be by motion and in accord with the provisions of sec. 120, County Courts Act, 1888 ; whilst where it is on a point of law, etc., in a case exceeding £50, either method is open to the appellant. The attention of the Court of Appeal in The Delano was not drawn to the fact that sec. 120, County Courts Act, 1888, does not prescribe any method of appeal, but refers to the S. C. Jud. Acts and the rules made thereunder for the method. These rules (Order LIX. rr. 9-12), giving an appeal by motion, are limited to Queen's Bench or common law appeals. It is true that the earlier rules of this order speak of the hearing of appeal motions, and E. S. C, Order LII. r. 1, directs all applications to a divisional court to be by motion; but, on the other hand, those rules dated 1883 could not apply to Admiralty appeals on points of law where the amount in dispute was less than £50, because, as has already been pointed out, before 1888 no right of "appeal existed in such cases. There- fore, strictly speaking, no method of appeal to the Admiralty Division on a question of law involving less than £50 seems to be prescribed ; possibly this point is only academic, although 106 ADMIRALTr JURISDICTION IN COUNTY COURTS. it might have been used as an argument in favour of the view- that sec. 120, County Courts Act, 1888, was not intended to apply to Admiralty appeals, of a r^al"* As a matter of practice, the " instrument of appeal " is a notice of motion ; but care must be taken, if the appeal is under the C. C. Ad. Jur. Act, 1868, to lodge it in the Admiralty Kegistry within ten days, besides serving it on the parties. The special provisions of E. S. C, 1883, Order LIX. rr. 10-16, as to time for appeals under the County Courts Act, 1888, as already ob- served, apply in terms only to appeals to the Queen's Bench Division ; there are, therefore, no special rules regulating those appeals in Admiralty, and it would therefore appear desirable in all cases to serve the notice of appeal or notice of motion on all the parties concerned, and also lodge it in the Admiralty registry within the ten days above mentioned, although in Queen's Bench appeals the time is twenty-one days. See p. 186. c. c. Ad. 28. No appeal shall be allowed if, before the decree or Jur. Act, T • 1 , 1868, order is made, the parties shall have agreed by a memo- T'^re^ement ^^^^^^ Signed by them, or by their attorneys or agents, not to that the decree or order shall be final ; and any such appeal. agreement need not be stamped, except in respect of any fee imposed by General Orders. A similar provision is contained in sec. 123, County Courts Act, 1888 : " No appeal sliall lie from the decision of the judge, if before such decision is pronounced the parties shall agree, in writing signed by themselves or their solicitors or agents, that his decision shall be final, and no such agreement shall require a stamp." Such an agreement, therefore, deprives the parties of an appeal equally whether the question is one of fact — where the amount in dispute exceeds £50 (see sec. 31, post) — or a question of law (p. 108). c. c Ad. 29. There shall he no appeal from a decree or order of 1868, ° * ^^^ High Court of Admiralty of England made on sec. 29. appeal from a county court, except by express permission further of tlic juclgc of the High Court of Admiralty. Court of This section was repealed by the County Courts Act, 1875 Appeal. (38 & 39 Vict. c. 50, s. 12), Schedule C, and sec. 10 of that Act was substituted, which in its turn was repealed by the County LEAVE ON FURTHER APPEAL. 107 Courts Act, 1888 (51 & 52 Vict. c. 43). Great difficulty arose in construing tliose enactments together with sec. 45 of the S. C. J. Act, 1873 (36 & 37 Vict. c. 66), but the effect of them was decided in The Bart (1893, P. 33, 7 Asp. 353), to be that where the judgment of the court below was reversed by the divisional court no leave to appeal was necessary. The Supreme Court of Judicature Act, 1894 (57 & 58 Vict. c. 16), by sec. 1, sub-s. (5), has overruled the above case, and makes leave to appeal necessary in all cases. S. C. J. Act, 1894, sec. 1, sub-s. (5): " In all cases where there is a right of appeal to the High Court Judicature from any court or person, the appeal shall be heard and determined by Act, 1894, a divisional court constituted as may be prescribed by Rules of Court; * ' ' and the determination thereof by the divisional court shall be final, unless leave to appeal is given by that court or by the Court of Appeal," There was no appeal from a refusal to give leave to appeal Appeal {The Amstel, 2 P. D. 186 ; Kay\. Briggs, 22 Q. B. D. 343 ; Lane J™^j \^^ V. Esdaile [1891], A. C, per Lord Herschell, pp. 214, 215 ; see, give leave. however, ex parte Gildirist, 17 Q. B. D., at pp. 527, 528); but now the final words of this clause give one {Hawkins v. G. W. B. Co., 14 E. 360). As to the class of case in which the court will give leave to appeal, see the rule as laid down in The Samuel Laing (L. K. 3 A. & E. 284), viz. " where the law is doubtful or novel in its application, where the facts are such as to leave a sub- stantial doubt upon the mind of the court whether the con- clusion at which it has arrived be right, where the pecuniary interest is large." It may be noted that the County Courts Act, 1875, sec. 10, speaks of an ajjpeal to Her Majesty in Council, which at the time that Act was passed was the tribunal to which appeals from the Admiralty Court were taken. The S. C. of Judicature Act, 1873, sec. 18, sub-s. (5), which did not come into operation till the day after the C. C. Act, 1875, transferred this jurisdic- tion to the Court of Appeal. 30. On an appeal under this Act, when the appellant C C. Ad. is unsuccessful, he shall pay the costs of the appeal, ^ggg ^ ' unless the appellate court shall otherwise direct. sec. so. '■ ^ Costs of This provision does not seem at variance with Order LXV. ^^^^ 108 ADMIRALTY JURISDICTION IN COUNTY COURTS. C. C. Ad. Jur. Act, 1868, sec. 31. No appeal unless amount exceeds £50. Judicial construc- tion of section. Dr. Van Thunnen Tellow. The Eliza- beth. r. 1 of the S. C. of Judic. Eules, 1883, which as a rule leaves costs in the discretion of the court, but see p. 110. As to " Costs," see p. 147. 31. No appeal shall be allowed unless the amount- decreed or ordered to be due exceeds the sum of fifty pounds. As to appeals on a question of law, even where the amount is less than £50, see notes to sec, 27, p. 104. The words of the section appear at first sight to mean that no appeal in any case would be allowed unless an amount exceeding £50 had been decreed to be due, but previous to the County Courts Act of 1888, which first gave an appeal on questions of law where the amount was less than £50, judicial decision had construed its meaning thus : That where less than £50 is claimed in the action, and consequently in any event less than £50 must be decreed to be due, there is no appeal for either plaintiff or defendant {The Falcon, 3 P. D. 100, 3 Asp. 566) ; that where more than £50 is claimed, but nothing has been recovered, there is an appeal ; that where more than £50 is claimed, but less than £50 is recovered, there is no appeal for either plaintiff or defendant {The Elizabeth, L. R. 3 A. & E. 33, 3 M. L. C. 320). The cases on which the above propositions are founded are as follows : — The Doctor Van Thunnen Tellow (3 M. L. C. 244, 17 W. E. 899), Two suits were brought by two sets of salvors, and were heard together; both plaintiffs appealed, and Sir Robert Phillimore allowed the appeals to be heard on the ground that the section only applied where some amount had been decreed to be due. The case is very shortly reported, and it does not appear what amount was claimed, or what the judgment appealed from was; but from the judgment of Sir R. Phillimore it seems the plaintiffs had recovered nothing. In The Elizabeth (L. R. 3 A, & E. 33, 3 M. L. C, 320) two cross causes had been instituted for damage, each in £100, and heard together. In the cause in which The Elizabeth was plaintiff, The Elizabeth recovered nothing, her suit being dis- missed with costs. In the cause in which The Adalia was APPEALS ON FACT. 109 plaintiff, The Adalia obtained a decree for tlic damages wLicli she had sustained ; sucli damages, it had been agreed, shouhl be assessed by the nautical assessors. The Elizabeth appealed in both causes. In the cause in which The Elizabeth was defendant and Tite Adalia had a decree for the amount of her damages, the right to appeal was disallowed on its being shown that the amount of such damages, viz. the amount decreed to be due, was less than £50. In the cause in which The Eliza- beth was plaintiff (claiming £100, but recovering nothing), an appeal was allowed (see note, p. 34, L. E. 3 A. & E.). The Falcon (3 P. D. 100, 3 Asp. 566) explained The Doctor The Falcon. Van Thunnen Tellow. In this case the plaintiff, having recovered nothing, appealed, but as he had only claimed £30 the appeal was disallowed, on the ground that more than £50 could not have been decreed to be due. In The Fi/enoord (3 Asp. 218), as reported, the above cases The Fye- were not referred to. That was a salvage action where the defendant had tendered £5, and that tender had been upheld. Sir E. Phillimore held that sum to be the amount decreed or ordered to be due, and refused leave to the plaintiff to appeal. This decision also supports the above propositions derived from the former cases^ as the plaintiff did recover something, and that less than £50, and it may fairly be assumed that the amount claimed was over £50, although the report is silent on the point. In a recent case (T/te Sapphire, December 3, 1895, not reported) the plaintiffs claimed £96 2s. for damages for col- lision, including therein demurrage ; the defendants paid into court £46 2s. in respect of the plaintiffs' claim, the amount of the demurrage being then the only question in dispute. At the trial the county court judge awarded nothing on this claim, and the divisional court followed The Fyenoord, and held there was no appeal. The president in his judgment assumed that in The Fyenoord the claim was for over £50. On an appeal on a point of law under sec. 120 of the County Restriction Courts Act, 1888, there is a restriction on appeals Avhere the y^j^gPP^*!]^ debt or damage claimed or counterclaimed (Smith v. Gill, W. N. by County (96), 68 (2), does not exceed £20 ; but the judge has a discretion ^^^^^ ^^^' to allow an appeal in these cases, whereas the restriction on appeals under sec. 31 of the County Courts Act, 1868, is absolute. 110 ADMIRALTY JURISDICTION IN COUNTY COURTS. The words of sec. 120, dealing with this matter, are as follows : — "Provided always, that there shall he no appeal in any action of contract or tort, other than an action of ejectment or an action in which the title to any corporeal or incorporeal hereditament shall have come in question, where the debt or damage claimed does not exceed twenty pounds . . . unless the judge shall think it reasonable and proper that such appeal should be allowed, and shall grant leave to appeal." Appeal It appears that it is within the county court judge's discre- under con- tion to allow an appeal on conditions governing the costs of the appeal, as, e.g., that the appellant shall pay the whole costs of appeal, even if he succeeds (^Goodes v. Cluff, 13 Q. B. D. 694) ; and such an order, heing a discretionary order, is not itself subject to appeal (ibid.y On the general principle that, where leave to appeal to the Court of Apjieal was, under the County Courts Act, 1875, necessary, the appeal itself was an indulgence, the Court of Appeal in one case held that a successful appellant was not entitled to costs {The Swallow, 3 Asp. 371). But it does not appear that occasion has arisen to consider whether this decision would apply to county court appeals to the High Court. c. c. Ad. 32. On an appeal under this Act, the judge of the jggg ^ ' High Court of Admiralty, if it appears to him expedient sec. 32. that any sale decreed or ordered to be made of the vessel sale, etc., in 01" property to which the cause relates should be con- Court of ducted in the High Court of Admiralty instead of in the Admiralty. '^ "^ , county court from which the appeal is brought, may direct the transfer of the proceedings for sale, with or without the transfer of the subsequent proceedings in the cause, to the High Court of Admiralty, which court shall have jurisdiction, and all powers and authorities relating thereto accordingly. Sec. 23, ante, p. 90, provides for the transfer of sale to the High Court by order of a county court judge. This section supplements the former one by allowing the application to be made at once to the High Court, where the whole matter is before it on appeal. It will be observed, under Order XXXIX. b., County Court CINQUE PORTS. Ill Eules, 1889, r. 44 (County Court Eules, 1892, 106), which see ante, p. 92, that an order of the High Court is in all cases necessary to enable the marshal of that court to take possession of the property ; this rule, being general, would no doubt apply in case of the order being made by the High Court under this section. The order would be an interlocutory one, and the application not an appeal, but only incidental to the appeal (see sec. 26, p. 97, and notes thereto) ; in practice, such an application would generally be made immediately on the decision of the divisional court being pronounced, and therefore to the divisional court. The High Court would not be bound to order the security of £10 required by Order XXXIX. b.. County Court Eules, 1889, rr. 45, 46 (County Court Eules, 1892, 107, 108, see p. 92), and under the circumstances it would not appear necessary. 33. In all cases which shall arise within the jurisdic- c. C Ad. tion of the Cinque Ports as defined by the Act first and ises, second George the Fourth, chapter seventy-six, section f^- ^^; . f ' ^ ^ ' lu certain eighteen, causes may be transferred by the county court cases and appeals made to the Court of Admiralty of the teTran^^^ Cinque Ports in lieu of the High Court of Admiralty; ferred bv and in the case of appeals the instrument of appeal shall court and be lodged in the registry of the Cinque Ports, and the ^^^[^ same discretion vested in the judge official and commis- Court of sary of the said Cinque Ports court as is by this Act ofCin'^*^ vested in the judge of the High Court of Admiralty. Poits. The jurisdiction, so far as the shore is concerned, extends from Limits of the Maze Tower (query the Naze) in Essex, up the Colne river ^^^^^^ '^" to Brightlingsea, thence to Shoebacon (query Shoebury Ness), across the mouth of the Thames to Shellness, thence to Favers- ham, and thence along the coast to EedclifF, west of Seaford. These limits include portions of the districts of the county courts of Essex holden at Colchester, of Kent holden at Eochester, and of Sussex holden at Brighton, and the whole of the districts of the county courts of Kent holden at Eams- gate and Dover. No appeal has ever been heard by the Court of Admiralty of Appeal to the Cinque Ports, and it may be a question if one now lies to it Council, (sec. 45, S. C. J. Act, 1873). The appeal from this court nque 112 ADMIRALTY JURISDICTION IN COUNTY COURTS. Las not been affected by the Judicature Acts, and therefore lies direct to the Judicial Committee of tbe Privy Council ; but so far as tbe Cinque Ports Admiralty Court is concerned, sec. 29 of tbe C. C. Ad. Jur. Act, 1868, now repealed (see p. 106), did not apply ; nor does S. C. J. Act, 1894, sec. 1, sub-s. (5), now apply, and therefore for such further appeal it cannot definitely be said whether leave of the judge must be obtained. Admiralty The Court of Admiralty of the Cinque Ports is a very ancient Court of court of co-ordinate authority as to cases arising within its Ports. territorial jurisdiction with the High Court (^The Maria Louisa, Swa. 67 ; The Jeune Paul, L. E. 1 A. & E. 336), and is in no sense a court of vice-admiralty (see " Historical Introduc- tion," ante; and 1 & 2 Geo. IV. c. 76, sec. 4; 18 & 19 Vict. c. 48, sec. 10) ; and though it is not at present much used, it is still alive, having a registrar and other necessary officials. The registry is at Dover, and the court usually sits there, but, apparently, may lawfully sit elsewhere, and even out of the territorial jurisdiction of the Cinque Ports, as it has not unfre- quently, when Sir Eobert Phillimore, the late judge of the High Court of Admiralty, was also judge of the Cinque Ports Admiralty Court, sat in the Admiralty Court at Westminster, and has, on one occasion at least, been held under the present judge at the new Law Courts ; but possibly in all these cases the parties have consented. Py 1 & 2 Geo. IV. c. 76, as amended by 9 Geo. IV. c. 37, and to some extent continuing earlier statutes, the Lord Warden, or his deputy, has power to appoint salvage commissioners to Salvage adjudicate upon salvage claims within the limits of the Cinque Commis- Ports jurisdiction irrespective of amount. This was not Cinque Strictly an Admiralty jurisdiction in itself, though the award Ports. could be enforced by arrest (1 & 2 Geo. IV. c. 76, sec. 19). Yet an appeal was given under certain conditions (sec. 4) to either the High Court of Admiralty or the Court of Admiralty of the Cinque Ports, and such appeal was in every case final (sec. 5). But as the Act was not to affect the jurisdiction of the High Court of Admiralty, or the jurisdiction exercised within the Cinque Ports (sec. 21), if the salvage suit were instituted, in the first instance, in either of these courts, instead of before the commissioners, an appeal would, as in all other Admiralty cases, have lain to the delegates. In 1855, by the M. S. Act Eepeal Acts (17 & 18 Vict. c. 120), sees. 19 and 21 above mentioned were repealed, their purposes having been carried out by sec. 460 of the M. S. Act, 1854. By 18 & 19 CINQUE PORTS. 113 Vict, c, 48, "An Act for the better administration of justice in Admiralty the Cinque Ports," the ordinary civil jurisdiction heretofore c°j"!^ug" exercised by the Lord Warden of the Cinque Ports in law and Ports, equity was abolished, but the Admiralty jurisdiction and that of the commissioners are expressly j) reserved by sec. 10. Sec. 571 of the M. S. Act, 1894 (57 & 58 Vict. c. 60), continues the jurisdiction of the Court of Admiralty of the Cinque Ports and the commissioners. "571. Nothing in this part of this Act shall prejudice or affect auy jurisdiction or powers of the Lord Warden or any officers of the Cinque Ports or of any court of those ports or of any court having concurrent jurisdiction within the boundaries of these ports, and disputes as to salvage arising within those boundaries shall be determined in the manner in which they have been hitherto determined." It may be observed that the rules as to costs in sec. 547 Costs in sub-s. (2) (see p. 14, ante), do not apply to the case of a salvage ^-''l^^se. action brought in the Cinque Ports Court of Admiralty, and therefore the costs of cases brought there are in the discretion of the judge, irrespective of amount. It may be questioned whether the provisions of sec. 9 of Costs C. C. Ad. Jur. Act, 1868, ever applied to the Cinque Ports generally. Court of Admiralty, so as to impose the penalty of costs on persons taking proceedings there which might have been taken in a county court, as the Cinque Ports Court of Admiralty is not a superior court in the ordinary legal acceptation of that term, any more than the Court of Admiralty itself was prior to 1861, when it was made a Court of Eecord, and its judge obtained the powers of a judge of a superior court ; but as the section is entirely repealed by the Statute Law Revision Act, 1893 (56 Vict. c. 14), the question is now one of academical interest only. There seems no reason why any suit, however small the amount, should not be brought in that court, when the case arises within its territorial jurisdiction, with an appeal to the Privy Council, notwithstanding all the provisions of the Judicature Acts and Eules, and of the County Courts Acts and Eules, subject, howevei-, to the provisions of sec. 117 of the County Courts Act, 1888, that if less than £10 be Where less recovered, only county court costs will be allowed. *^''^" ~^*^, " •' recovered. 34. This Act shall be read as one Act with so much Sec. 34, c. of the County Courts Act, 1846, and the Acts amending Jct^'^ises? or extending the same, as is now in force. I 114- ADMIRALTY JURISDICTION IN COUNTY COURTS. The C. C. Ad. Jur. Amend. Act, 1869, is, by sec. 1, to be read as one witli this Act. In 1875 the County Courts Act, 1875 (38 & 39 Vict. c. 50), amended the existing County Courts Acts, and was to be con- strued as one Act with the County Courts Act, 1846, and the several Acts altering or amending the same. It repealed sec. 29 of the C. C. Ad. Jur. Act, 1868, and dealt specifically with Admiralty causes in prescribing when leave to appeal had to be obtained (sec. 10), and with the summoning of assessors on appeal (sec. 11). In 1888,the County Courts Act, 1888 (51 & 52, Vict. c. 48), " An Act to consolidate and amend the County Courts Acts," repealed the County Courts Acts, 1846, and the Acts amending the same as set out in the schedule, including therein the County Courts Act, 1875, but not the C. C. Ad. Jur. Act, 1868, nor the C. C. Ad. Jur. Amend. Act, 1869. The repealing section of the County Courts Act, 1888, provides — Effect of " 188. The Acts speci6ed in the schedule to this Act are hereby County reiDealed, from and after the commencement of this Act. jggg ' " Provided that — " (3) Any enactment or document referring to any Act or enact- ment hereby repealed shall be construed to refer to this Act, or to the corresponding enactment in this Act." In The Tynwald (1895, P. 142, 7 Asp. 539) it was decided per Bruce, J., that this section makes the Act of 1888 to be read as one with the Ad. Jur. Acts, 1868 and 1869. There have been several decisions as to the effect that sections in the County Courts Act, 1888, applicable to Admiralty actions, have upon the C. C. Ad. Jur. Acts. On where Thus it has been held that sec. 74 of the County Courts Act, proceed- iqqq amplifies sec. 21 of the C. C. Ad. Jur. Act, 1868, as to jngs to be -^ com- where proceedings are to be commenced (T/ie Hero, 1891, P. menced. 294, 7 Asp. 86). See p. 80. On appeals. See. 120, County Courts Act, 1888, gives a right of appeal on a question of law where the amount decreed or ordered to be due is less than £50, although sec. 31, C. C. Ad. Jur. Act 1868, only allowed any appeal when it was above such sum. (The Eden, 1892, P. 67, 7 Asp. 174; The Delano, 1895, P. (C. A.) 40, 7 Asp. 523.) See p. 104. On mode of But merely general words in a section of the Act of 1888 will trial. jjqI; overrule a special provision in the C. C. Ad. Jur. Acts (TJie Tynwald, 1895, P. 142, 7 Asp. 539), in which case the GENERAL ORDERS. 115 words of sec. 101 of County Courts Act, 1888, as to metliod of trial, were held not to overrule the express provisions of sec. 10, C. C. Ad. Jur. Act, 18G8, for the trial of salvage, towage, and collision causes by a judge and assessors (see p. GO). As to whether sec. 120 of County Courts Act, 1888, enlarges On inter- sec. 26 of C. C. Ad. Jur. Act, 1868, which latter section only ^ocutory , . . 1 .11, appeals. gave an appeal m an interlocutory matter with the leave of a judge, see The Cashmere, 15 P. D. 121, 6 Asp. 515 ; but this decision proceeded on the assumption that sec. 120 of the County Courts Act, 1888, did not apply to interlocutory appeals (see section 26). See pp. 97, 100. 35. General Orders shall be from time to time made Sec. 35, c. under this Act for the purposes in this Act directed, and Jcf ^1868 ' for regulating the practice and procedure of the Admiralty Practice, jurisdiction of the county courts, the forms of processes re^;'i*a°te^d and proceedings therein or issuing therefrom, and the ^y General days and places of sittings for Admiralty causes, the duties of the judges and officers thereof, and the fees to be taken therein. 36. General Orders under this Act shall be made by the Sec 36, c. Lord Chancellor, with the advice and assistance of the ?• f'^^aal' Act, ioDo. judge of the High Court of Admiralty of England, and, Authority as far as they relate to fees, or to the receipt and §enTr!a'l"'° expenditure of and accounting for money, with the Orders. approval of the commissioners of her Majesty's Treasury. Rules and scales of fees were made under these sections soon after the passing of the Act, which without variation governed the practice of the county courts in Admiralty causes until the passing of the County Courts Act, 1875 (38 & 39 Vict. c. 50), sec. 8 of which Act, whilst not touching the power to make rules given to the rule committee of county court judges by the County Courts Act, 1856 (19 & 20 Vict. c. 108), gave them power to draw up a scale of costs and charges, which scale, when submitted to and approved by the Lord Chancellor, should come into force apparently without needing the sanction of the Treasury. (The words in italics were repealed, 56 Vict. c. 14.) In 1881 the S. C. of Jud. Act of that year (44 & 45 Vict. c. 68, sec, 27) gave a general power to the same body to make rules in all cases. This sec. is repealed (S. L. Eev. Act, 1894), and its place taken by sec. 24, S. C. Jur. Act, 1884. The 116 ADMIRALTY JURISDICTION IN COUNTY COURTS. special provisions as to these matters in the county courts are contained in sees. 164 and 165 of the County Courts Act, 1888^ " 164. The Lord Chancellor may appoint five judges, and from time to time fill up any vacancies in their number, to frame rules and orders for regulating the practice of the courts and forms of proceedings therein, and scales of costs to be paid to counsel and solicitors, and from time to time to amend such rules, orders, forms, and scales; and such rules, orders, forms, and scales, or amended rules, orders, forms, and scales, certified under the hands of such judges, or any three or more of them, shall be submitted to the Lord Chancellor, who may allow or disallow, or alter the same ; and the rules, orders, forms, and scales, or amended rules, orders, forms, and scales, so allowed or altered, subject to the concurrence of the authority for making rules of the Supreme Court, as in the Supreme Court of Judicature Act^ 1884, provided, shall, from a day to be named by the Lord Chancellor, be in force in every court. Such power of making rules and orders shall extend to all matters of procedure or practice, or relating to or concerning the effect or operation in law of any procedure or practice, in any case within the cognizance of county courts, as to which rules- of the Supreme Court have been or might lawfully be made for cases within the cognizance of the High Court of Justice. The rules,, orders, forms, and scales of costs in force at the commencement of this Act shall continue to be in force unless and until otherwise provided. In any case not expressly by this Act or in pursuance thereof provided for the general principles of practice in the High Court of Justice may be adopted and applied to actions and matters. " 165. The treasury from time to time, with the concurrence of the Lord Chancellor, may make orders as to the fees to be paid on any proceedings which are now or shall hereafter be authorized to be taken in the courts, whether any fee is now payable thereon or not : Pro- vided always, that every such order shall be notified to both Houses of Parliament within ten days from the commencement of the session next after the making thereof." As the Lord Chancellor and the President of the Probate, Divorce, and Admiralty Division of the High Court of Justice are ex officio members of the rule committee of the High Court of Justice by sec. 19, S. C. Jud. Act, 1881 (44 & 45 Vict. c. 68, as amended by sec. 4, S. C. Jud. Act, 1894 (57 & 58 Vict. c. 16), even if the power to make rules under sec. 36 of the C. C. Ad. Jur. Act, 1868, still remains in force, the present rules are rendered valid by their signature. As the rules of 1875, purporting to regulate the practice of the county court, were not made or, as far as appears, approved by the Judge of the Admiralty Court, it may be doubtful how LIENS. 117 iar tliey were valid where tliey differed from the rules previously ' in force, and this may have caused the doubt expressed in sec. ■21, S. C. Jud. Act, 1881. The present Treasury order as to fees where the county court exercises jurisdiction under the C. C. Ad. Jur. Acts, 1868, and 1869, bears date January 1, 1889, and the fees are contained in Sched. B., part v. See Appendix. Liens. The liens on ships, and in some cases on cargo, recognized by Ljens English law, may be divided into four classes : classified. (1) Maritime liens. These attach in the cases of damage (i) Jiaii- done by a wrong-doing vessel on the high seas, salvage to *'"^*^- property on the high seas, bottomry, and seamen's wages. (2) Statutory maritime or quasi-maritime liens. These (2) Statu- attach where damage has been done by a wrong-doing vessel *^?^T "^an- "within the body of a county (3 & 4 Vict. c. 65, sec. 6 ; 2-i Tict. c. 10, sec. 7) ; salvage within the body of a county (3 & 4 Tict. c. 65, sec. 6); for life salvage (57 & 58 Vict. c. 60, sec. 544) ; and for master's wages, except under special •contract, and disbursements (57 & 58 Vict. c. 60, sec. 167). (3) Statutory liens or a right to proceed in rem, as against a (3) Statu- vessel of which no owner is domiciled in England or Wales, ^°^Y ''ens. in respect of damage to cargo carried into England or Wales (24 Vict. c. 10, sec. 6) and for necessaries supplied under 3 & 4 Vict. c. 65, sec. 6, and 24 Vict. c. 10, sec. 5 ; for all cases of wages earned under a special contract (24 Vict. c. 10, sec. 10) ; iind towage (3 & 4 Vict. c. 65, sec. 6). (4) Possessory liens, such as that of a material man for repairs (4) Pos- ■whilst the vessel is still under his control. sessory A maritime lien attaches to the property when the cause of ■action arises, and adheres to it notwithstanding the transfer of between the property to a bond fide purchaser for value ignorant of the maritime claim {The Bold Buccleugh, 7 Moo. P.O. 267), in the absence ^^'^'^^^"^l^ of laches on the part of those enforcing it {TJie Kong Magnus, rem. 1891, P. 223, 6 Asp. 583). An action in rem only gives the claimant a charge on the .rea from the date of arrest, and the court holds the security for ■whatever may be adjudged due {The Cella, 13 P. D. 82, 6 Asp. 293); but such right of arrest is defeated by a bond fide transfer of the property for value {The Aneroid, 2 P. D. 189, S Asp. 418; The Eeinrich Bjorn, 11 App. Cas. 270, 6 Asp. 1). 118 ADMIRALTY JURISDICTION IN COUNTY COURTS. Lien must be enforced with reasonable diliarence. Maritime lien not absolute. Is ship liable for collision when demised to char- terers ? What is reasonable diligence in enforcing a maritime lien depends upon the circumstances of each case, such as the length of time that has elai^sed and the opportunities of arrest ; but if no laches have been shown, the claim, with interest on the damages awarded, is not barred by the statutes of limitation {The Kong Magnus, 1891, P. 223, 6 Asp. 583, 7 Asp. 64). Although a maritime lien attaches to the ship the moment the cause of action arises, and then follows the ship, it is not an absolute right ; it is a prima facie liability attaching to the ship, but may be rebutted on proof that the owner of the ship, neither by himself, his servants, nor agents, was responsible for the act which is alleged to give rise to the maritime lien. Thus in collision the prima facie maritime lien may be rebutted on proof that the ship at the time was under the control of some one not deriving his authority from the owners, and for whom they are not responsible (The Tasmania, 13 P. D. 110, 6 Asp. 305 ; The Utopia, 1893, A. C, at p. 499, 7 Asp., at p. 411), or of a person for whom they would be ordi- narily responsible, if at the time he was wilfully acting outside the scope of his employment {The Druid, 1 W. Eob. 391). Whether the ship remains liable for collision where she is under the exclusive control of charterers at the time of the collision, in the present condition of authority, seems somewhat doubtful. In Tlie Tasmania {uhi sup.^ Lord Hannen expressed the view, on the authority of The Ticondoroga (Swa. 215) and The Lemington (2 Asp. 475), that charterers are in such a case deemed to have derived their authority from the owners, and to be pro hac vice owners, and that the ship remains liable for a collision brought about by their negligence, or that of their servants (see 13 P. D., at p. 116) ; whereas recent dicta in the Privy Council in The Utopia (1893, A. C, at p. 499), and in the House of Lords in The Castlegate (1893, A. C, at p. 52), seem to tend against such a view. In The Tasmania (13 P. D. 110, 6 Asp. 305) the plaintiff ■was a smack-owner, and sued the steam-tug Tasmania for the loss of his smack through collision with the Tasmania. The Tasmania, at the time of the collision, was chartered to the Great Yarmouth Steam Tug Company at a weekly hire, owner finding crew and stores ; charterers finding a captain as pilot, coals, and port expenses; all damages to bo for charterers* account. Vessel to be employed towing boats in and out of Great Yarmouth harbour. LIENS BY STATUTE. 119 The Tasmania, whilst towing in the plaintiff's smack, collided with her and sank her. The plaintiff had for many years done business with the Tug Company on the terms as expressed on the accounts which they had rendered to him, that the Tug Company were exempted from liability for negligence of themselves or their servants in the towage. The plaintiff was also a director of the Tug Company, and knew of the chartering of the Tasmania. On these facts Sir James Hannen, whilst expressing an opinion that the ship would have been liable had the charterers been liable, held that the charterers had contracted themselves out of the liability, and the p-irnci facie liability of the ship was rebutted. In the case of liens which have been classified above as statutory statutory maritime or quasi-maritime liens, viz. for damage maritime done by a wrong-doing vessel in the body of a county, salvage extended services rendered in the body of a county, life salvage and jurisdic- master's wages (his disbursements will be dealt with here- *'°'^' after), it has hitherto been assumed that as a maritime lien attached in similar cases within the original jurisdiction, so also a maritime lien was given in the extended jurisdiction as given by statute. Since the decision of The Heinrich Bjorn (11 App. Cas. 270, 6 Asp. 1) a question may be raised whether, in the extended jurisdiction, a maritime lien exists, or only a remedy in rem (see per Lord Bramwell, 11 App. Cas,, at p. 282). This point appears to have been taken in Tlie Lemington (see 2 Asp., p. 475 n.), but was not argued, as it was not raised on the pleadings. In The Heinrich Bjorn (uhi stop.), it was decided that sec. 6 of Neces- 3 & 4 Vict. c. 65, which statute first gave the Admiralty Court sanes. jurisdiction over claims for necessaries supplied to a foreign ship, did not confer a maritime lien, but merely jurisdiction which could be enforced by the Admiralty proceeding m rem ; and it is the same section of this Act which extended the juris- diction of the Admiralty Court to damage and salvage within the body of a county. As regards life salvage, whether the statutes which give the Life sal- Admiralty Court jurisdiction over this have conferred a "^'^se- maritime lien in respect of it, it is not so material to inquire, as it is an essential condition to obtaining salvage that some property should be saved, and the M. S. Act, 1894 (57 & 58 Vict. c. 60), sec. 544, sub-s, (2), provides — ■ " Salvage in respect of the preservation of life, when payable by the 120 ADMIRALTY JURISDICTION IN COUNTY COURTS. Wages, of seaman. Of master. ter s Maste disburse- ments. owners of the vessel, shall be payable in priority to all other claims fur salvage." The question could only become important where cargo had alone been saved, as in the case of The Cargo ex Schiller (2 P. D. 145, 3 Asp. 439). In such a case life-salvors would have similar rights to those of the salvors of property ; but if the property had lawfully been sold prior to the institution of the life-salvors' suit, it is at least doubtful if the life-salvors could follow the property in the hands of third parties. As regards wages, a seaman has always had a maritime lien for wages earned by him under the ordinary seaman's contract. By sec. 191, M. S. Act, 1854 (now sec. 167, M. S. Act, 1894), a master has the same " rights, liens, and remedies for the recovery of his wages " as a seaman. The Admiralty Court Act, 1861 (24 Vict. c. 10), sec. 10, extended the jurisdiction of the Admiralty Court to wages earned by a seaman on board the ship, whether under a special contract or otherwise ; but this section, which also gave the court jurisdiction over a claim by a master for his disburse- ments, was held in The Sara (14 A. C. 209, 6 Asp. 413) not to have created a maritime lien for a master's disbursements. It may therefore appear open to question whether a seaman, and a fortiori a master, has a maritime lien for wages earned under a special contract. But see the remarks of Lord Hals- bury, 14 A. C, at p. 216. As regards a master, sec. 10 of the Admiralty Court Act, 1861, gave the Admiralty Court jurisdiction over a claim made by him for his wages generally, irrespective of a special con- tract, but only for wages earned by him on board the ship. Sec. 167, M. S. Act, 1894 (57 & 58 Vict. c. 60), re-enacts sec. 191, M. S. Act, 1854, but being subsequent to the Act of 1861, and giving the master the same " rights, liens, and remedies " for the recovery of his wages as a seaman has under this Act or by any law or custom, may be deemed to give him a quasi- maritime lien in all cases. The lien of a master for his disbursements is entirely created by statute sec. 167, M. S. Act, 1894, re-enacting M. S. Act, 1889, sec. 2, giving him the same rights, liens, and reme- dies for ihe recovery of disbursements or liabilities, " properly made or incurred by him on account of the ship," as he has for the recovery of his wages. LIENS BY STATUTE. 121 As tliis lien takes its origin solely from tho Act of Parlia- ment, it only arises where the circumstances fall strictly within the terms of the section. Thus where a ship was let to charterers, who by the terms of the charter-party were to provide and pay for all the ■coals, although the captain and crew were appointed and paid by the shipowners, it was held bills given by the master for coals to enable the vessel to pursue her voyage were not disbursements made on account of the ship within the terms of the section, and he had no lien (The Castlegate, 1893, A. C. 38, 7 Asp. 284). And where coals had been ordered for a ship by her owners, but the captain iu his owner's office had given a bill for the amount, this was held not to be a disbursement or liability properly made or incurred by him on account of the ship, and he had no lien in respect thereof (The Orienta, 1895, P. 49, 7 Asp. 529). In respect of damage to cargo, the remedy in rem given by Statutory the C. C. Ad. Jnr. Acts is wider than that given to the ^^^^' Admiralty Court by 24 Vict. c. 10, sec. 6, as it can be exerted ^^^^^^ irrespective of the owner's domicile or the destination of the carried. goods (ante, p. 39) ; but in the county court, arrest can only be resorted to when there is an apprehension that the property may be removed out of the jurisdiction. A similar statutory lien has been created in the county court as regards agreements in relation to the use and hire of any ship (ante, p. 39). The supply of necessaries (3 & 4 Vict. c. 65, sec. 6, 24 Vict. Neces- c. 10, sec. 5, ante, p. 24) has already been shown only to ^^*■'^^• give the person supplying them a right in rem, and no maritime lien (The Heinrich Bjorn), 11 App. Cas. 270, 6 Asp. 1). Wages earned under a special contract, if earned on board Wages the ship, certainly confer a right in rem (sees. 10, 35, 24 Vict. "°'j,^/j'* c. 10) even if a maritime lien does not attach in respect of them, contract. There is no maritime lien in respect of simple towage not Towao-e. partaking of the nature of salvage (Westruj) v. The Great Yar- mouth Steam Carrying Co., 43 Ch. D. 241, 6 Asp. 443), but a remedy in rem. The shipwright's possessory lien on a ship he has repaired Possessory is the common law lien which any artificer has in respect of '^"* any chattel on which he has expended his labour, and the lien is lost directly he parts with its possession. 122 ADMIRALTY JURISDICTION IN COUNTY COURTS. 24 Vict. c. 10, sec. 4. Detention and sale under Harbours, Docks, and Piers Clauses Acts and Removal of Wrecks Act. Priorities of claims. Ranking of liens. The Admiralty Court Act, 1861 (24 Vict. c. 10), by sec. 4, gives the Admiralty Court jurisdiction over any claim for the building, equijiping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under the arrest of the court ; but this section only confers a right hi rem, and it is doubtful if the jurisdiction can be exercised by the county court (ante, p. 27). It may be here noted that under the Harbours, Docks, and Piers Clauses Acts, 1847 (10 Vict. 27), which is generally incorporated in the Acts of Parliament under which harbours and docks are constructed and managed, and the Eemoval of Wrecks Act, 1877 (40 & 41 Vict. c. 16), as amended by 52 Vict. c. 5, special powers are conferred on the undertakers of piers or on harbour authorities to recover dues, damages done to harbour works, and expenses incurred in removing wrecks by a detention and sale of the ship or wreck. Where the fund against which several claims have to be enforced is limited under Part III. M. S. Act, 1894 (p. 49), to the value of ship, freight, or cargo (p. 52), the priori- ties of the several claimants become important to determine, therefore the relative priorities of claims for damage, salvage, wages, bottomry mortgages, and necessaries must be shortly considered. In this connection, damage and salvage, wherever they occur, are assumed to give a maritime lien, the distinction between damage and salvage on the high seas, and damage and salvage in the statutory jurisdiction alluded to in the preceding pages, not having been, hitherto at all events, recognized. Masters' wages and disbursements, after recent legislation, may also be taken as conferring an equal lien with seaman's wages, and having the same priorities, provided the disburse- ments have properly been made on account of the ship (seep. 120). The general rule as to the ranking of liens is thus expressed in Mr. Machlachlan's "Treatise on Merchant Shipping," 4th edit., p. 739 : " Considered in relation to their object, liens may be divided into two classes — first, liens in the nature of reward for benefit conferred ; secondly, liens in the nature of reparation for wrong done. Those of the former class generally rank against the fund in the inverse order of their attachment on the res ; those of the latter class, in the direct order of their attachment on the res; and relatively to each other, whilst liens of the one class, when prior in date, yield BANKING OF LIENS. 123 precedence in claim to those of the other class when subse- quent, the actual result of this order of ranking is greatly modified by positive law and equitable considerations." The lien for damage takes precedence over the lien for Damage salvage services which were rendered to the same vessel before ^'^^ the collision ; but salvors who have rendered salvage services subsequent to the collision are entitled to priority over the salvao-e damage lien, as their services have preserved the property for the benefit of all interested in it. The damage lien takes precedence over the lien on a As to bottomry bond given before the collision ; but if a bottomry bottomry. bond has been taken bo7id fide, and repairs executed on the ship subsequently to the collision, it appears the increased value of the ship, owing to such repairs, would be considered, and the damage lien only take priority on the value of the vessel before the repairs were executed (The Aline, 1 W. Eob. 111). As regards wages in the case of a foreign ship, the damage As regards lien takes precedence (The Elm, 8 P. D. 129, 5 Asp. 120); but '''^^es. it is a question whether this is so in the case of a British ship, especially in regard to wages earned subsequent to the col- lision, or where the owner is insolvent. The lien for damage ranks before the claim of a mortgagee. As regards The maritime lien for salvage ranks before other liens that "mortgage. have previously attached, for the salvors have been the means ^''^^^'age of preserving the res for the benefit of all claimants. priority. As regards wages, it takes precedence of wages earned prior As regards to the salvage services, but not of wages earned subsequently, wages. nor of a bottomry bond given by the salvors (The Selina, 2 Notes of Cas. 18). At the time of the decision of the above case, freight was still the " mother of wages ; " that is to say, the seaman's wages were dependent on freight being earned, and so the salvage preserved both the right to wages and the security for them. Now that the seaman has a remedy, whether freight is earned or not, against his owners, the reason for giving salvors priority is not so strong; but as the salvage service still preserves the security, it would probably still be granted if the question were raised, especially if the owners were insolvent. The salvage lien is preferred to the claim of a mortgagee. As regards Bottomry ranks after the lien created by a subsequent col- "^o^tgage. lision, and after subsequent salvage, and as between several bottomry 124 ADMIRALTY JURISDICTION IN COUNTY COURTS. lien priority. When master personally bound. Wages lien priority. As regards damage. As regards salvage. As regards bottomry. Possessory lien. bottomry bonds, the latest in time ranks first. Wages earned on the same voyage as that on which the bond is given rank before the bottomry hand (The Union, Lush. 128), but not wages earned on a previous voyage (The Hope, 1 Asp. 563). When a master has in the bottomry bond expressly made himself personally liable, he cannot enforce a claim for his wages, to the prejudice of the bond-holder where the fund is insufficient to satisfy both (The Jonathan Goodhue, Swa. 52-1; The Salacia, Lush. 545) ; but where the bond-holder has a further security on the cargo, the claim of the master being limited to ship and freight, the court will marshall the assets and order the master's claim to be satisfied out of ship and freight in priority (The Edward Oliver, L. R 1 A. & E. 379, 2 M. L. C. 507), provided the value of ship and the freight and the cargo are sufficient to satisfy the bond. The claim of the bottomry bond-holder takes precedence of that of a mortgagee. The priority of the lien for wages has necessarily been considered in treating of other liens. As regards the lien for damage, in the case of a foreign ship, the damage lien takes precedence of the wages lien (The Aline, 1 W. Eob. Ill); but in the case of a British ship, where the owner of the damaged vessel has a remedy against the owners of the wrong-doing vessel, should the res prove insufficient to satisfy his claims, as the seamen have against their owner, and in the case where the owner of the wrong-doing vessel is in- solvent, and hence the seamen equally with the owner of the damaged vessel can only recover against the res, the reasons for giving the damage lien j)reference do not apply, and hence it may be doubted whether the liens would not rank pari passu (&ee per Dr. Lushington in The Union, Lush. p. 136). As regards salvage, subsequent salvage services are preferred to wages, but subsequent wages to salvage, the principle in each case being that the latter service, whether for wages or salvage reward, preserved the res out of which the j)ersons were to be paid (The Selina, 2 Notes of Cas. 18). Wages earned on the same voyage as that on which a bottomry bond is given give a lien which is preferred to the bond (The Union, Lush. 128). As regards the possessory lien of a shipwright, it is taken subject to existing liens ; thus wages earned before the ship came into the shipwright's hands takes precedence of his lien, RANKING OF LIENS. 125 Solicitors' charging order. of sending crew home. but not wages subsequently earned (77*6 Gnsfaf, Lusb. 506; Immacolata Concezione, 9 P. D. 37, 5 Asp. 208). In The Livietta (8 P. D. 209, 5 Asp. 151), solicitors, under 23 & 2-i Vict. 0. 127, sec. 28, claimed a cbarging order on a fund in court in priority to a claim by tbe Italian Consul for the expenses of sending a crew back to tbeir own country, on tbe ground tbat tbe fund in court bad been preserved tbrougb tbe solicitors' instrumentality. The Italian law was proved to be very similar to tbat of our own country, and the charges of sending tbe crew home were held to rank as high as wages, and to have priority over tbe claim of tbe solicitor. The law of this country as to tbe expenses of sending seamen Expenses home is contained in sec. 186, sub-s. (4), M. S. Act, 189-i (57 & 58 Vict. c. 60) : " (4) If the master fails, without reasonable cause, to comply with any requirement of this section, the expenses of maintenance or passage home — " (a) if defrayed by the seaman or apprentice, shall be recoverable as wages due to him ; and "(5) if defrayed by the consular officer or by any other person, shall (unless the seaman or apprentice has been guilty of barratry) be a charge upon the ship to which the seaman or apprentice belonged, and upon the owner for the time being thereof, and may be recovered against the owner, with costs, at the suit of the consular officer or other person defraying the expenses, or, in case they have been allowed to him out of public money, as a debt to the Crown, either by ordinary process of law, or in a manner in which wages can be re- covered under this Act." See The Immacolata Concezione (9 P. D. 37, 5 Asp. 208). Although, as has been said above, a master has now an equal lien for his wages and disbursements with a seaman for bis wages, yet when his claim comes into competition with that of tbe seaman for bis wages against a limited fund, tbe claim of the master will give place to that of the seamen (The Salacia, Lusb. 545), as a seaman has a claim, not only against the ship and her owner, but also against tbe master who engaged him. The lien for wages takes precedence of tbe claim of a mort- gagee (The Hope, 1 Asp. 563). A possessory lien ranks after liens that have previously attached (The Gustaf, Lush. 506; The Immacnlata Concezzione, 9 P. D. 37, 5 Asp. 208) ; but has priority over the claim of a Claims of master as regards seaman's wages. Wnges, priority to mortgage. Possessory lien post- poned to 126 ADMIRALTY JURISDICTION IX COUNTY COURTS. existing mortgagee (The Acacia, 4 Asp. 254; The Sherhro, 5 Asp. 88), Hbiis. o o \ A „ . '. „ and over a claim for necessaries, as tbe claim of a mortgagee i rioritv oi to moit- ' is preferred to a claim for necessaries {The Two Ellens, L. K. gage. 4 P. C. 161, 1 Asp. 208 ; The Lyons, 6 Asp. 199). Kegistered mortgages take priority of each other according to the date of the registration, not according to the date of each mortgage (sec. 33, M. S. Act, 1894, 57 & 58 Vict. c. 60). EaDking of As to the ranking of claims similar in their nature, but for simn"" ^ which there is no maritime lien, but only a right in rem, such nature. as several claims for necessaries, in The Africano (1894, P. 141, 7 Asp. 427) it was decided that priority was not obtained from the date of the institution of the action, but from the date of the decree ; but that, as in the High Court the decree was usually conditional, and in that case " without prejudice to other claims, and reserving all questions as to the priority of such claims," the proceeds must be proportionally divided. The President of the P. D. and A. Div. in this case raised a doubt as to the position of a plaintiff who had obtained judg- ment in a county court action which has subseq^uently been transferred to the High Court. Evidence. Evidence. It is not proposed, in these pages, to discuss the general principles of law as to the admissibility of evidence, but merely to refer shortly to the provisions in the M. S. Act, 1894 (57 & 58 Vict. c. 60), relating to evidence, and also to one or two documents which, from their nature, are peculiar to shipping cases. Sec. 695, M. S. Act, 1894, provides generally as to the admissibility of documents in evidence — Sec. 695, " 695. (1) Where a document is by this Act declared to be admis- M. S. Act, sible in evidence, such document shall, on its production from the 1894 . . Admiss'- pi'oper custody, be admissible in evidence in any court or before any bility of person having by law or consent of parties authority to receive documents evidence, and, subject to all just exceptions, shall be evidence of the inevidcnce. jj,atters stated therein in pursuance of this Act or by auj' officer in pursuance of his duties as oflficer. " (2) A copy of any such document or extract therefrom shall also be so admissible in evidence if proved to be an examined copy or extract, or if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original document was entrusted, and that officer shall furnish such certified copy or extract to any person applying at a reasonable tiine for the same, upon payment of a EVIDENCE. 127 reasonable sum for the same, not exceeding fourpence for every folio of ninety words ; but a person shall be entitled to have — " («) a certified copy of the particulars entered by the registrar in the register book on the registry of the ship, together with a certified statement showing the ownership of the ship at the time being; and "(h) a certified copy of any declaration or document, a copy of which is made evidence by this Act, on payment of one shilling for each copy. " (3) If any such officer wilfully certifies any document as being a true copy or extract knowing the same not to be a true copy or extract, he shall for each ofl:ence be guilty of a misdemeanour, and be liable on conviction to imprisonment for any terra not exceeding eighteen months. "(4) If any person forges the seal, stamp, or signature of any document to which this section applies, or tenders in evidence any such document with a false or counterfeit seal, stamp, or signature thereto, knowing the same to be false or counterfeit, he shall for each offence be guilty of felony, and be liable to penal servitude for a term not exceeding seven years, or to imprisonment for a term not exceed- ing two years, with or without hard labour, and whenever any such document has been admitted in evidence, the court or the person who admitted the same may on request direct that the same shall be impounded, and be kept in the custody of some officer of the court or other proper person, for such period or subject to such conditions as the court or person thinks fit." Sec. 694 provides — " Where any document is required by this Act to be executed in the presence of or to be attested by any witness or witnesses, that document may be proved by the evidence of any person who is able to bear witness to the requisite facts without calling the attesting witness or the attesting witnesses or any of them. Sec. 64, sub-s. (2) & (3), provide— "(2) The following documents shall be admissible in evidence in manner provided by this Act, namely — " (a) Any register book under this part of this Act on its produc- tion from the custody of the registrar or other person having the lawful custody thereof; " (5) A certificate of registry under this Act purporting to be signed by the registrar or other proper ofiicer ; "(c) An endorsement on a certificate of registry purporting t) be signed by the registrar or other proper ofiicer ; "(d) Every declaration made in pursuance of this part of this Act in respect of a British ship. " (3) A copy or transcript of the register of British ships kept by Sec. 694, M. S. Act, 1894. Proof of attestation not re- quired. Sec. 64, M. S. Act, 1894,sub-s. (2) and (3). Documents of ship's registry. 128 ADMIRALTY JURISDICTION IN COUNTY COURTS. the Eegistrar-General of Shipping and Seamen under the direction of the Board of Trade shall be admissible in evidence in manner provided by this Act, and have the same effect to all intents as the original register of whicli it is a copy or transcript." Sec. 374 relates to tlie registry of fishing-boats : Sec. 37-1- " 374. In all legal proceedings against the owner or skipper of, or M. S. Act, any person belonging to, any boat entered in the fishing-boat register, l,^.^*- either for any offence against the fishery regulations or regulations as reo-istrv of ^° lights in the Sea Fisheries Act, 1868, or for an offence against the fishing- Sea Fisheries Act, 1883, or for the recovery of damages for injury boat. done by such boat, the register shall be conclusive evidence that the persons entered therein at any date as owners of the boat were at that date owners thereof, and that the boat is a British sea-fishing boat : provided that — "(a) this enactment shall not prevent any proceedings being insti- tuted against any person not so entered who is beneficially interested in the boat ; and " (h) this enactment shall not affect the rights of the owners among themselves, or the rights of any owner entered in the register against any person not so entered who is beneficially in- terested in the boat ; and "(c) save as aforesaid, entry in the fishing-boat register shall not confer, take away, or affect any title to or interest in any fishing-boat." Register TliG register is in all cases strong evidence of ownership prima facie (see TJie HorlocJc, 2 P. D. 243, 3 Asp. 421), and prima facie evi ence o gy^^gjjpg Qf possession, and, in registered fishing-boats under sect. 374, cannot, it appears, be rebutted except by proof of error in the register itself. Thus in Eihhs v. Boss (L. E. 1 Q. B. 534), the register was held prima facie evidence that the person in charge of the ship, which was at the time laid up, was appointed by the person registered as owner (see also Steel v. Lester & Like, 3 C. P. D. 121, 3 Asp. 537); but evidence of such possession can be negatived or rebutted in the case of ships as distinguished from fishing-boats — for instance, by showing the person registered as owner to have parted with the control and management of the vessel, as by a demise (Baumvoll Manufactur von Scheihler v. Fiirness, 1893, A. C. 8, 7 Asp. 263). The court will admit evidence to correct an error in the dimensions of the ship in the register (The Becepta, 14 P. D. 131, G Asp. 433). FA'IDEXCE. 129 Sec. 12.J provides — "la anj' legal or other proceeding a seaman may bring forward evidence to prove the contents of any agreement with the crew or otherwise to support his case, without producing or giving notice to produce the agreement or auy copy thereof." Sec. 136 ijrovides — "(1) Where a seaman is discharged, and the settlement of his wages completed, before a superintendent, he shall sign in the pre- sence of the superintendent a release, in a form approved by the Board of Trade, of all claims in respect of the past voyage or engage- ment; and the release shall also be signed by the master or owner of the ship, and attested by the superintendent. "(2) The release, so signed and attested, shall operate as a mutual tlischarge and settlement of all demands between the parties thereto in respect of the past voyage or engagement. "(3) The release shall be retained by the superintendent, and on production from his custody shall be admissible in evidence in manner provided bj' tliis Act. "(4) Where the settlement of a seaman's wages is by this Act required to be completed through or in the presence of a superinten- dent, no payment, receipt, or settlement, made otherwise than in accordance with this Act shall operate as or be admitted as evidence of the release or satisfaction of any claim. " (5) Upon any payment being made by a master before a super- intendent, the superintendent shall, if required, sign and give to the master a statement of the whole amount so paid; and the state- ment shall, as between the master and his employer, be admissible as evidence that the master has made the payments therein mentioned." When the parties have submitted a question to the super- intendent under sec. 137, a document purporting to be the submission or the award is by the same section made admis- sible as evidence thereof. Sec. 231 provides — " (1) Whenever a question arises whether the wages of any sea- man or apprentice are forfeited for desertion from a ship, it shall be sufficient for the person insisting on the forfeiture to show that the seaman or apprentice was duly engaged in or belonged to the ship, and either that he left the ship before tlie comitletion of the voyage or engagement, or, if the voyage was to terminate in the United Kingdom and the ship has not returned, that he is absent from her, and that an entry of his desertion has been duly made in the oflicial log-book. "(2) The desertion shall thereupon, so far as relates to any for- feiture of wages under this part of this Act, be deemed to be proved, K M. S. Act, 1894, sec. 123. Seamen not to be bound to produce agreement. Sec. 136. Evidence of settlement of wasres. Submission to, and award of, superinten- dent. Sec. 231. Facilities for proving desertion in proceed- ings for forfeiture of wages. 130 ADMIRALTY JURISDICTION IN COUNTY COURTS. il, S. Act, 1894, sec. 189, sub-s. Bill given to seaman left abroad. Sec. 174-, sub-s. (2) and (3). Recovery of wages, etc., of seamen lost with their ship. unless the seaman or apprentice can produce a proper certificate of dischar>j;e, or can otherwise show to the satisfaction of the court that he had sufficient reasons for leavini;- his shijx" Where a seaman or apprentice is left abroad, and the master has to pay him by bill under sec. 189, M. S. Act, 1894, the same section, by sub-s. (4), (b) and (c), provides — " (h) If the bill is drawn by the master, the owner of the ship shall be liable to pay the amount to the holder or endorsee thereof; and it shall not be necessary in any proceeding against the owner upon the bill to prove that the master had authority to draw it ; "(c) a bill purporting to be drawn and endorsed under this section, shnll, if produced out of the custody of the Board of Trade or (if the Registrar-General of Shipping and Seamen, or of any superintendent, be admissible in evidence ; and any endorse- ment on any such bill purporting to be made in pursuance of this section shall also be admissible as evidence of the facts stated in the endorsement." As to evidence on proceedings by the Crown for expenses incurred for the relief of distressed seamen, see sec. 193, sub-s. (3) (see p. 34). Sec. 174, which gives the Board of Trade power to sue for the wages of seamen lost with their ship in the same court and in the same manner in which seamen's wages are recoverable (see p. 23) provides, sub-s. (2) and (3) — " (2) In any proceeding for the recovery of the wages, if it is shown by some official return produced out of the custody of the Registrar-General of Shipping and Seamen, or by other evidence, that the ship has twelve months or upwards before the institution of the proceeding left a port of departure, she shall, unless it is shown that she has been heard of within twelve months after that departure, be deemed to have been lost with all hands on board, either imme- diately after the time she was last heard of, or at such later time as the court hearing the case may think probable. "(3) Any duplicate agreement or list of the crew made out, or statement of a change of the crew delivered, under this Act, at the time of the last departure of the ship from the United Kingdom, or a certificate purporting to be a certificate from a consular or other public officer at any port out of the United Kingdom, stating that certain seamen and apprentices were shipped in the ship from the said port, shall, if produced out of the custody of the Registrar-General of Shipping and Seaman, or of the Board of Trade, be, in the absence of proof to the contrary, sufficient proof that the seamen and apprentices EVIDENCE. 131 therein named as belonging to tlio ship were on board at the lime of jj ,<; _^gj. the loss." 1894. Sub-s. (2) leaves to the court the question as to when a ■vessel not heard of after sailing has been likely to have been lost, and in the absence of some evidence, such as some of her wreckage being picked up at a particular time and j)lace, or ipossibly of exceptionally severe weather damaging vessels which sailed on the same voyage at the same time, the court will hold she was lost directly after sailing, which entails a loss to the families of the seamen of any wages earned subsequent to her sailing. Under sec. 198, if the crew or some of them make comi^laint Sec. 198. as to the provisions or water supplied, the report made bv ^'^P°}'^. °" ,1 .,,., .. '■ •' provisions, the persons specified m the section is to be sent to the Board etc., at of Trade, and shall be admissible in evidence in manner pro- lei^^st of vided by the Act. When expenses have been incurred by a consular or other Sec. 208, officer on behalf of the Crown on account of the illness, etc., \"^^"*- C^^- of a seaman, which should under the M. S. Act, 1894, have iiu/un-ed" been paid by the master or owner of the ship, sec. 208, sub-s. (3), ';;}' Crown .r,,.„„:,i„„ lor sea- provides — , -'■ man s illness etc "In any proceeding for such recovery, a certificate of tlie facts Certificate.' ■signed by the said officer or other person, together with such vouchers (if any) as the case requires, shall be sufJicieiit proof that the said expenses were duly paid by that officer or other person." A deposition taken before a receiver of wreck in pursuance r>eposi- of sec. 517, M. S. Act, 1894, where a vessel has been in distress, ^'°°^' is not admissible in evidence (Noriliard v. Pepper, 17 C. B. N. S. 39, 2 M. L. C. 52), even when the deponent is dead {The Henry Coxon, 3 P. D, loG, 4 Asp. 18), on the ground that the l^arty against whom it is proposed to use it had no opportunity of cross-examination (The Little Lizzie, L. R. 3 A. & E. 56). AVhether a deposition made by an opponent's master, whose admission binds his owner, but who is not j)resent at the trial, ■can be used as evidence on proper proof of signature has not been decided; it was discussed in The Washington (not reported) in 1873. It may be noted that at the time of the decision of The Little Lizzie (^iihi suj).'), sec. 449, M. S. Act, 1854, was in force, enacting that such dejiosition should be admissible " in evidence in any court of justice, or before any person having by law 132 ADMIRALTY JURISDICTION IX COUNTY COURTS. M. S. Act, ^^' ^y consent of parties autliority to bear, receive, and examine- 189-i. evidence, as prima facte proof of all matters contained in sucb written examination." This section was repealed by sec. 45. M. S. Act, 187G. Discovery of sucb depositions can under certain circumstances- be obtained (see " Practice," p. 171), and form material for cross- examination. But tbe original sbould be produced in court by an official of tbe Board of Trade, tbat tbe witness may bave tbe- opportunity of verifying bis signature to tbe deposition before be is cross-examined upon it (pi"r Butt, J., The Bisca, Marcb 25, 1886) ; and if be repudiates bis signature, it can be proved tbat it bas come from tbe j)roper custody (sec. 695, M. S. Act, 1894 ; The Bena I/O, March 29, 1886); if be is cross-examined upon it, tbe wbole document must be put in. Sec. 6'Jl, M. S. Act, 1894, in its terms seems to contemplate proceedings otber tban criminal, but seems only to bave been acted on in criminal jjroceedings (see Beg. v. Steicart, 13 Cox. C. C. 154). Sec. 691. "691. (1) Whenever, in the course of any legal proceeding insti- tuted in any part of her Majesty's dominions before any judge or magistrate, or before any jDerson authorized by law or by consent of parties to receive evidence, the testimony of any witness is required in relation to the subject-matter of that proceeding, then upon due proof, if the proceeding is instituted in the United Kingdom, that the witness cannot be found in that kingdom, or if in any British possession that he cannot be found in that possession, any deposition that the witness may have j^reviousl}' made on oath in relation to the same subject-matter before any justice or magistrate in her Majesty's- dominions, or any British consular ofncer elsewhere, shall be admis- sible in evidence, provided that — "(a) If the deposition was made in the United Kingdom, it shall! not be admissible in any proceeding instituted in the United Kingdom ; and *' (b) if the deposition was made in any British possession, it shall not be admissible in any proceeding instituted in that British possession ; and "(c) if the proceeding is criminal it shall not be admissible, unless it was made in the presence of the person accused. "(2) A deposition so made shall be authenticated by the signature of the judge, magistrate, or consular dfScer before whom it is made; and the judge, magistrate, or consular officer shall certify, if the fact' is so, that the accused was present at the taking thereof. "(3) It shall not be necessary in any case to prove the signature or official character of the person appearing to bave signed any sucb. EVIDENCE. 133 'deposition, aiul in any criminal proceeding a certificate under this M. S. Act, section sliall, unless the contrary is proved, be sufficient evidence of l*^^'*- the accused having been present in manner thereby certified. "(4) Nothing herein contained shall aff"ect any case in which depositions taken in any proceeding are rendered admissible in ■evidence by any Act of Piirliament, or by any Act or ordiuance of the legislature of any colony, so far as regards tliat colony, or inter- fere with the power of any colonial legislature to make those depo- sitions admissible in evidence, or to interfere with the practice of any court in which depositions not authenticated as hereinbefore mentioned •are admissible." Sec. 100, M. S. Act, 1894, enacts that a record of certificates Sec. 100. of competency and the suspending, cancelling, or altering of JJg°^°5-J °^ ■the certificates shall bo kept in such manner as the Board of certificates. Trade directs, and that " any record under this section shall be admissible in evidence in manner provided by this Act." In an action for damage to cargo on account of the negligent navigation of the ship, an extract from the record relating to the master's certificate was attempted to be made prima facie •evidence of negligence. A Board of Trade inquiry had been held, and his certificate suspended on account of negligence on the occasion in question, but Willes, J., rejected the evidence {McAllim V. Beid, L. E. 3 A. & E. 57 n.). Sec. 239, M. S. Act, 1894, provides for the keeping of the Official log. •official log. "239. (1) An official log shall be kept in every ship (except ships Sec. 239. ■employed exclusively in trading between ports on the coasts of Scot- land) in the appropriate form for that ship approved by the Board of Trade. " (2) The Board of Trade shall approve forms of official log-books, which may be different for different classes of ships, ^o that each such form shall contain proper spaces for the entries required by this Act. " (3) The official log may, at the discretion of the master or owner, be kept distinct from, or united with, the ordinary ship's log, so that ■in all cases the spaces in the official log-book be duly filled up. "(4) An entry required by tliis Act in an official log-book shall be made as soon as possible after the occurrence to which it relates, and if not made on the same day as that occurrence, sliall be made and dated so as to show the date of the occurrence and of the entry ■respecting it; and if made in respect of an occurrence happening •before the arrival of tlie ship at her final port of discharge, shall not bo made more than twenty-four hours after that arrival. 134 ADMIRALTY JURISDICTION IN COUNTY COURTS. M. S. Act, "(5) Ever}'- entry in the official log-book shall be signed by the- 1894, seo. master, and by the mate, or some other of the crew, and also ~ "(rt) if it is an entry of illness, injury, or death, shall be signed by the surgeon, or medical practitioner on board (if any); and " (h) if it is an entry of wages due to, or of the sale of the effects of^ a seaman or apprentice who dies, shall be signed by the- mate and by some member of the crew besides the master ; and "(c) if it is an entry of wages due to a seaman who enters her- Majesty's naval service, shall be signed by the seaman, or by the officer authorizud to receive the seaman into that- service. " (6) Every entry made in an official log-book in manner provided by this Act shall be admissible in evidence." Sec. 240. Sec. 2-10 requires, amongst others, the following entries to be- made by the master, or under his direction : — "(1) Every conviction by a legal tribunal of a member of his crew,, and the punishment inflicted. " (2) Every offence committed by a member of his crew, for which it is intended to prosecute or to enforce a forfeiture or to exact a» fine, together with such statement concerning the copy or reading over of that entry, and concerning the reply (if any) made to the- charge as by this Act required." (See also sec. 228.) " (8) The wages due to any seaman who enters her Majesty's navai service during the voyage. "(9) The wages due to any seaman or apprentice who dies duiing the voyage, and the gross amount of all deductions to be made there- from. "(10) The sale of the effects of any seaman or ajiprentice who dies during the voyage, including a statement of each article sold and the sum received for it. " (11) Every collision with any other ship, and the conditions under Avhich the same occurred ; and " (12) Any other matter directed by this Act to be entered." Ship's log. The official log is much on the same footing as the ordinary ship's log as regards being evidence, with the important dis- tinction that it has to be signed by the caj)tain, and therefore binds his owners, as he is an agent, to make admissions (The Manchester, 1 W. Eob, G2 ; The Actoeon, 1 Spinks, 176) ; whereas the ship's log is generally kejit by the mate. More- over, as the official log has to be kept in conformity with the Act of Parliament, certain particulars must be contained, therein. EVIDENCE. 135 The log cannot be made evidence where the persons who kept it are dead (TJie Henry Coxon, '] P. D. 15G, 4 Asp. 18). This decision proceeded on the double ground, first, that the entry was not contemporaneous (the collision was on a Saturday, and the entry was made on the following Monday) ; and, secondly, that in giving an account of a collision the acts of third parties must be detailed, but the entries by a deceased person can only be evidence of acts done by himself. The log, however, may generally be used to allow a witness to refresh his memory. Dr. Lushington, in a prize case, states the rule thus : " Now, without reference to any cases, I am of opinion that the log of the party suing never can be made evidence for any ship in its own cause. . . . The truth I take to be this — that where an entry in a log has been made by any particular individual at the time of transaction, that individual, when he comes to be examined, has a right to refer to the entry in the log for the purpose of refreshing his memory, that log having been made by himself at the time, and he swearing, not to the truth of the log, but to the best of his belief certain facts to be true, and refreshing his memory merely from the entry at the time" (The Sociedade Feliz, 1 Notes of Cas. at p. 292). The log can be cross-examined upon, and, the absence of entries, esj^ecially in the case of the official log of those required by statute, is ground for comment. If cross-examined upon, the log must be put in as evidence, if the party producing it so require. Protests and depositions, when jiroduced (see pp. 171, 172), can be cross-examined upon, but such cross-examination renders the whole document liable to be put in. The report which pilots make to the Trinity House, etc., can only be used in cross-examination of the pilot, and, strictly speaking, only go to test his credibility. Statements and letters of the master to his owners are admissible as evidence against them (The Solicay, 10 P. D. 137, 5 Asp. 482) ; but not so statements of the pilot and seamen (The Lord Seaton, 2 W. Eob, 391), imless they actually form part of the res gestae (The Schcalbe, Swa. 521). The log-books which are kept on lightships or at light- Lighthouse houses (The Maria das Dares, Br. & Lush. 27), or by the coast- ""^^ \'-^*- ^ ' J- ) ; :and the same principle applies when the vessel is not lost, but the damages have been unnecessarily increased, as by premature abandonment (The Hausa, G Asp. 268); but when, •after a collision, the captain, in trying to navigate his ship to .a port of safety, got ashore in consequence of his having been deprived, through the collision, of his instruments of navigation, the defendant was held liable for the damages sustained by the stranding, as being a direct consequence of the collision (The 4Jlt)j of Lincoln, 15 P. D. 15, 6 Asp. 475). In the same way, salvage services rendered necessary in Salvage consequence of a collision, can be claimed against the wrong- ^^ ' ^'^ ' doing vessel, but not if they have only become necessary through those on board the injured vessel displaying a want of ordinary skill and resolution (The Linda, Swa. 306). In The Legatus W. Eob. at p. '2:^^) ; but if sncli necessary repairs bring some iacidental advantage to tlie shipowner, e.g. enable the ship to pass her class at Lloyd's, no deduction is to be made from the amount on this account (The Bernina, G Asp, 6") ) ; but where, on opening up a ship after collision, certain portions are found to be rotten, and have to be renewed to enable her to pass her survey, such repairs cannot be charged to collision damage, although but for the collision the defective portions might not have been discovered, and the repairs might have been deferred some years (Tin' Princess, 5 Asp. 451). The registrar and merchants will distinguish between repairs consequent on the collision and repairs on shipowner's account (The Bernina, iibi sujJ.) ; and also will Judge as to the reason- ableness of the charges for repairs, discounts received, etc. (E.m.S. Inflexible, Swa. 200). The best evidence of the damage actually done, is the evidence " of persons who saw the ship and the damage done to her before the repairs were commenced, and who were capable, from their practical experience in shipping matters, of esti- mating the extent of the repairs which were necessary in consequence of the collision, and what would be the expense of effecting them" (The Alfred, 3 W. Rob., per Dr. Lushington, at p. 237). When a ship has been damaged by collision, and in conse- quence has to be repaired, the owner is entitled to claim as- damages from the wrong-doer comjiensation for the loss of the use of the vessel and of the profit which would be derived therefrom during the time it is xmder repair ; such damages also need not necessarily be limited to the money which could have been earned during the time the vessel was actually under repair, but the loss of profit on any engagement for which the vessel is fixed is also recoverable (The Argentino, 1-i App. Cas. 519, 6 Asp. 433 ; The Star of India, 1 P. D. 466, 3 Asp. 261). In The Argentino (uhi s?;p.), it is pointed out how this matter should be dealt with. Where no specific claim is made for loss of profits on a voyage in contemplation the engagement for which is secured, damages will be awarded under the name of demurrage in respect of the loss of profit which it must reasonably have been anticipated the ship would earn during the tim;3 she was under repair. Where, however, the loss of some specific engagement is allowed as damages, the shipowner is placed in the same MEASURE OF DAMAGE. 139 position as if tlierc had been no tletention, and demurrage Future 1 1 1 • 1 pi'ofits. cannot also be claimed. The whole profit of the specific engagement will not, of course, be allowed, but credit must be given, directly the shipowner regains the use of his ship, for what he could reasonably earn in any other adventure between the time he has the use of his ship and the end of the engagement he lost in consequence of the collision. It is submitted, however, a case might arise in which, still in accordance with the above principles, both demurrage and compensation for lost employment might be claimed, ejj. a vessel engaged on a coasting voyage to A, B, and C, and subsequently, under engagement for another voyage, is run down before she reaches her port B. Here the freights she would earn between B and C would be lost to her, as well as the subsequent engagement. It should be noted that in the Argentino (uhi sup.), the engagement for the loss of which damages were obtained was a verbal arrangement, not, as in The Star of India (1 P. D. 46G, o Asp. 261), a formal charter. To enable a shipowner to obtain demurrage or consequential Actual loss damages for the detention of his vessel, he must show actual must be loss, and give reasonable proof of its amount (The Clarence, ^ ;; W. Eob. 28;J; The Chij of Peking, 15 App. Cas. 438, G Asp. 572). In this latter case, the owners of the damaged vessel were f<;f;y ^f a company running a regular line of steamers. In consequence PckuKj. of the collision, the damaged vessel was unable to sail in her regular turn, but other vessels belonging to the same company were made to take her place. In addition to all expenses incurred by them in this substitution, the company made a claim for demurrage ; but as they were unable to show they had sustained any actual loss of profit, this item was disallowed. This case is distinguishable from that of The Black Priiicr (Lush. 568), where the vessels, although working in a regular line, were owned by difierent owners, and there the loss was calculated on the number of days the damaged ship was thrown out of her regular employment. Where a sacrifice, the subject of general average as between Geneiul shipowner and cargo-owner, is made in consequence of a average, collision, the shipowner cannot, in a collision action, claim as 140 ADMIRALTY JURISDICTIOX IX COUNTY COURTS. Loss ot" fishing. Damage to cargo. Collision. Total loss. Delay in •tlelivery. Partial loss. Tall of market. Freight. Total loss. Ship- owner's •cargo. Claim against wrong-doer by person advancing money to shipowner. against the wrong-doing vessel tlie balance of general average they have had to pay the cargo-owner ( The Marpessn, 1891, r. 4Ci3, 7 Asp. 155). In The Bisoluto (8 P. D. 109, 5 Asp. 93), the loss of fishing was estimated by taking the average catch of similar vessels at the same time. Where cargo is damaged by collision, the damages are assessed on the following principles. Where the cargo is totally lost, the cost price is allowed plus a sum to rej^resont merchants' reasonable profit ; and in assessing the value of cargo which is a constructive total loss a smilar principle is adopted, except that in this case credit must be given for the price fetched by the sale of the cargo in its damaged condition (Eegistrar's Report iu The Notting Hill, 9 P. D. 105, 5 Asp. 241). In respect of cargo which reaches the port of delivery un- damaged, but after some delay on account of the collision, in addition to the i)rice obtained for the cargo, a sum is allowed suflicient to compensate the owners for the loss of interest on their capital during the delay in delivery. In the case of cargo which reaches its port of destination, but in a damaged condition, the measure of damages will be the difterence between the j)rice it fetches and the price of a similar cargo in sound condition. No damages can be obtained for loss of market, i.e. for the fall in the j)rice of the goods between the time they ought to have been delivered but for the collision and the time of their actual delivery (The Notting Hill, 9 P. D. 105, 5 Asp. 241). Where shij) and fx'eight are totally lost, the measure of the loss of freight is the gross freight less the charges which would have been incurred in earning it, and interest is allowed from the time of the probable termination of the voyage (^The Canada, Lush. 58G). Where the shipowner also owns the cargo, and ship and cargo are lost by collision, the shipowner can claim against the wrong-doer the value of the goods as enhanced by the carriage to the port of destination in lieu of freight, deducting the expenses of earning that enhanced value (T/ze Thyatira, 5 Asp. 178). Where money has been advanced to a shipowner who owns the cargo, the shipowner can, by endorsement of a bill of lading, under the name of freight assign the enhanced value of the goods at the port of destination to the person making such an advance, and the person who has made the advance can claim BOTH TO BLAME. 141 against a wrong-doer wlio lias collided with and sunk the ship such an amount of the advance as is within the enhanced value of the goods as freight (Tlw Thi/atira, 8 P. D. 155, 5 Asp. 147 ; The Empusa, 5 P. D. G, 4, Asp. 185); the amount of the enhanced value will be inquired into by the registrar and merchants (Thyatira, ubi sup.). Where both vessels have been to blame for a collision, the Damages ancient rule of the Admiralty was that either vessel should "l^'^'^e both •nit -111- ships are only recover the moiety of her loss as against the otlier ship, to blame. and that in the case of cross-causes the damages should be divided between them ; also cargo-owners on either ship can recover half the loss from the other ship (The Milan, Lush. 388j. This practice has been recognized by statute sec. 25, sub-s. (9), of the Judicature Act, 1873 (36 & 37 Vict. c. 66), enacting — " In any cause or proceeding for damages arising out of a collision Collisions between two ships, if both ships shall be found to have been in fault, at sea. the rules hitherto in force in the Court of Admiralty, so far as they liave been at variance with the rules in force in the courts of common law, shall prevail." Thus whilst in cases of collision on shore, contributory Damage is negligence is a mutual defence which would debar either jiarty from recovering the damage sustained, leaving the loss them to lie where it falls, in collisions under the Admiralty rule, it would only, except in certain cases (see The Monte Rosa, 1893, P. 23), prevent either party from recovering more than half his damage. In the case of cargo carried on board a vessel and lost in a collision for which the carrying and another vessel are both to blame, the cargo-owner is under the Admiralty rule in a worse position than he would now be did this rule not prevail over the common law ; for by the Admiralty rule he can only recover half his damages from the other ship, being relegated as to any remedy his contract may have left him against the carrying- ship for the other half (see p. 48) ; whereas, in the absence of such a rule at common law, since Thorogood v. Bryan (8 C B. 115) was overruled (see The Bernina, 13 App. Cas. 1, 6 Asp. 257), he would not be held associated with the negli- gence of the carrying ship, and would be free to claim the whole damage from the other vessel should he for any reason be unable to enforce it against that carrying the cargo. In the case of claims under Lord Campbell's Act, where , "i^ divided between & 28 Vict. c. 95, 142 ADMIUALTY JURISDICTION IX COUNTY COURTS. y & 10 tliere lias been loss of life of passengers or seamen by collision Vict. c. 93 ; for wbicli both vessels are to blame, the ordinary principles of law, and not the Admiralty rule as to damages, applies (Tlic Berninn, 13 App. Cas. 1). Claims lor As regards cases of personal injuries arising out of collision personal between two ships, in the absence of exjjress authority it is aijuiie>. uncertain whether the common law rule would apply as in The Bernina ("13 App. Cas. 1), or whether the Admiralty rule of half damages as in the case of cargo (The Milan, Lush. 358). Examples Cases ' sometimes arise making it difficult to see how the showing Admiralty rule as to recovering only half the damages where ■ lamages both shi2)s are to blame operates, but the following examples .livided, illustrate the several cases : — (1) A and B, two ships both to blame. A is damaged £500, B is undamaged. A sues B, and recovers £250. The loss to each is £250. (2) A and B, two ships both to blame. A's damage = £1000, B's damage = £500. A can recover £500 from B ; B can recover £250 from A. The balance between them is taken, viz. £250. B pays A this balance. Thus A's damage has been reduced to £750. B pays her own damage, £500, plus £250 paid A, i.e. loss to each, £750. (3) If in example (2) B had cargo on board her valued £1200, B's cargo can only claim £600 from A, but, unless barred by contract, can recover either the whole in the first instance or the balance from B. Not cross- It was decided by the House of Lords in The Siormvaarf liabilities, MaaUchoppy V. P. & 0. S. Nav. Co. (7 App. Cas. 795, 4 Asp. Habilitv •^>67), where two ships are to blame and both have sustained for balance, damage, there are not in such cases two cross-liabilities for half the loss each shipowner has sustained, but one liability for the difference between the moieties of the aggregate losses. The importance of this decision is aj)parent where one ship has limited her liability under the M. S. Act to a fixed sum which will not satisfy all claimants in full. Thus, in example (2) (supra), supposing B to limit her liability, A only has a claim in such suit for £250, the balance ; whereas if they were cross-liabilities her claim would have been £500, i.e. half her own damage — a result which obviously affects claimants for damage to cargo, and may affect other claimants for personal injuries or in respect of loss cf life (The Victoria, 13 P. D. 125, 6 Asp. 335), DAMAGES. 143 as well as the shipowner himself. These questions, for reasons given above (p. 50), are scarcely likely to arise in cases tried in county courts. Where a collision was brought about by the joint negligence of a steamship, a sailing ship and the tug which had the latter in tow, but the actual collision was between the tug and the steamship, it was contended for the vessel in tow that, as she was only liable on the principle of the responsibility of a master for the acts of his servant, the Admiralty rule was not applicable in such a case, and, on common law principles, the other vessel, having been guilty of contributory negligence, could not recover from her at all. It was held the Admiralty rule applied, and the tug and tow were condemned in a moiety of the damage sustained by the other vessel, and the other vessel condemned in a moiety of the damage sustained by the tug {Tlie Englishman v. The Austml'ui, 1894, P. 239, 7 Asp. 4503). In cases where tug and tow are both to blame for a collision, there is no contribution between them (T/ie Avon v. The Thomas Joliffe, 1891, P. 7) ; nor are they co-debtors within the terms of sec. 5 of the Mercantile Law Amendment Act, 1 856 (19 & 20 Vict. c. 97) {The Englishman v. The Australia, 1895, P. 212, 7 Asp. 605). In an action for breach of contract in the carriage of goods, damages for loss of market arising from delay in the carriage can only be recovered, if from the contract itself, or special knowledge in the parties, it appears that some particular time of delivery was contemplated, the principle being that when- ever the facts are within the contemplation of both parties (either the object of the sender being specially brought to the notice of the carrier, or circumstances being known to the carrier from which the object ought in reason to be inferred), then damages may be recovered for the natural consequences of failure in that object {The Parana, 2 P.D. 118, 3 Asp. 399). When under a charter-party there is a failure to deliver the goods, the measure of damages is the difference between the position of the plaintiff if the goods had been delivered and his position if the goods are lost ; that is, the market price of the goods at the port of delivery less the freight to be paid {Bodocanaclii v. Milburn, 18 Q. B. D. 67, 6 Asp. 100). If there is no market price for the goods, then the damages •are represented by the price paid by the plaintiff for the goods Damages wliere tug and tow and third vessel all nefrligent. No contri- bution between tug and tow. Breach of contract. Delay. Loss of market. Xon- ' delivery of goods. How damages assessed. 1-1-i ADMIRALTY JURISDICTION IX COUNTY COURTS. Breach of contract to have ship ready. Interest on damasres. l)liis the profit lie would have made ui:)on them at. the port of delivery. The market price of the goods is their value, \yhere there is any market, irrespective of any intermediate sale or purchase. Freight paid in advance is not to be deducted from the market price of the goods {B,odocanacM Sons d: Co. v» MUhnrn, 18 Q. B. D. 67, 6 Asp. 100). Where indorsees of a bill of lading sued the master of a shii> under sec. o of the Bills of Lading Act, 1855 (18 & 19 Vict, c. Ill), on a bill of lading for 400 bales of cotton, of which only 165 bales were delivered by his ship, and the remaining 235 bales arrived in another vessel three days later, they were held entitled to recover as damages a fall in the price of the 235 bales which had occurred in the three days (Smithy Edwards & Co. v. Tregarthen, 6 Asp. 137). Where by a charter-party it was agreed that a ship should be ready at a certain berth at a certain time to receive a carga of coals, and the ship in breach of such charter was not ready^ the plaintiffs (the charterers) were held entitled to recover as damages the expense of obtaining other vessels at an enhanced freight, as also a rise in the price of the coals. As regards the latter item, it was pointed out evidence of this rise should have been rebutted by proving a corresponding rise in price at the port of delivery (Featlierstone v. Wilkinson, L. E. 8 Ex. 122;^ 2 Asp. 31). Where the contract was that a shiji should be ready to receive one hundred tons of cargo by a certain day, but she was not ready, the plaintiffs were held entitled to recover as damages, not only the enhanced freight they had to pay, but also the sum charged by the railway company for the detention of their trucks in which the cargo had to remain, although other means did exist for bringing the cargo alongside which might not have necessitated such a charge (^Welch, Perrin d; Co^ \. Anderson, 7 Asp. 177). In connection with the subject of damages, it must be pointed out that interest is allowed in the Admiralty Division on a different principle to that adopted at common law. In the Admiralty Division the practice is to allow interest from the time that the claim arises or the loss takes place {Tlie Gertrude, The Baron Aherdare, 12 P. D. 204, 13 P. D» 105, 6 Asp. 225, 315). Thus in a case of collision the interest will run from the time the damage is done ; in a breach of contract, from the COSTS. 145 time when, the breach causes damage to the plaintiff — for instance, the time when the cargo is not delivered. In a collision action in ran neither the claim itself nor that for interest is barred by the Statute of Limitations (The Kong Magnus, 1891, P. 223, 7 Asp. 64). Where a vessel is lost by collision with cargo on board, interest is allowed the shipowner from the date she should have arrived in port, as until that date it is included in the freight. If, however, the ship is in ballast, the interest is •allowed from the time of her loss. Costs. The costs in Admiralty causes in the county courts fall Costs. zander the general provisions as to costs contained in the County Courts Act, 1888. Sec. 113 provides — "All the costs of any action or matter in the court, not herein Sec. 113, otherwise provided for, shall be paid by or apportioned between the Si"^"*'^ parties in such manner as the court shall think just, and, in default of Act 1888. any special direction, shall abide the event of the action or matter, and Costs to execution may issue for the recovery of any such costs in like manner ^^^'^^^^ ^^^ as for any debt adjudged in the said court;" ^^^^ ' which would seem to have the same effect as E. S. C, Discretion 'Order LXV. r. 1, which leaves costs generally in the discretion °^ '^°"^"*' of the court, with this exception, that if the action be tried by a jury in the county court, and some issues are found in favour of the plaintiff, but others in favour of the defendant, it would appear necessary to apply to the judge to apportion the costs both of the action and of the several issues ; whereas, according to the rule in the High Court, costs of the issues will follow the event in each issue, and the costs of the action be awarded to the party succeeding in the action, in the absence of special ■direction. As to whether an Admiralty cause can be tried by a jury, see sees. 10 and 11, ante, p. 69, and notes thereto. The County Court Act, 1888, sec. 87, gives the judge absolute discretion over the costs of any amendment. Sees. 88 and 89 give the judge power, where the plaintiff Where does not appear, or where he does appear, but fails to make P'=ii»f'i^ out his case to allow the defendant the costs of appearance. !ipne,"i° Sec. 91 provides that where the defendant does not appear, ^y, the judge, upon due proof of service, may proceed with the defendant L 14G AD^^riRALTY JURISDICTION IX COUNTY COURTS. does not appear. Where action exceeds jurisdic- tion. trial, but may grant a new trial or hearing on such terms as to costs, security, etc., as he may think just. Sec. 114 provides that where an action is commenced in the county court over which the court has no jurisdiction, unless the parties consent to the jurisdiction the judge shall strike it out, but shall have the same jurisdiction as regards costs as he has in a case where the plaintiff has not appeared, or, having: appeared, has failed to prove his claim. But in Admiralty causes, where the subject-matter exceeds in amount the limit of the jurisdiction, the judge would not strike out the cause, but transfer it to the High Court under see. 7, C. C. Ad. Jur. Act, 1868, ante, p. 59. By sec. 115, if any party shall sue another in any court in respect of any cause of action for which judgment has been obtained in any other court, the party so suing shall not be entitled to recover, and shall be adjudged to pay three times the costs of the second action to the opposite j)arty. Sec. 116 deals with costs of actions brought in the High Court which could have been brought in the county court. For Admiralty actions so brought, see p. G5. Sec. 117 applies to actions brought in any other court than the High Court, and which could have been brought in the county court (see C. C. Ad. Jur. Act, 1868, sec. 25; as to Court of Passage of Liverpool, pp. 94, 96, and sec. 33 ; as to Court of Adm. of Cinque Ports, pp. Ill, 113). The County Court Rules, 1889, Order V. r. 7, provide— "7. Where it shall appear, on an application for the entry of a plaint, that the plaintiff does not reside in England or Wales, the summons shall not be issued until security for costs, by deposit of money or otherwise, shall have been given to the satisfaction of the registrar : provided that where the plaint is entered through a solicitor, an undertaking by him, according to the form in the Appendix, to be responsihle for the costs shall be sufficient. If the plaintiff fail in or discontinue his action or proceeding, and do not pay the amount of costs ordered to be paid by him to the defendant, proceedings may be taken for the recovery of such amount from him or from his solicitor, if he has given the undertaking, as for the recovery of a judgment debt." For form, see Appendix. C tsin County Court Rules, 1889, Order XL r. 4 deals with the third party costs in third party procedure in practically the same terms as procedure, j^ g^ q^ Order XXL r. 54, leaving them in the discretion of the court as follows : — Second action for same mjitter penalized by treble costs. County court actions brought in High Court, or in any other Security for costs. COSTS IN COLLISION ACTIONS. 147 4. " The judge may decide all questions of costs, as between a tliird party and the other parties to the action, and may orrler any one or more to pay the costs of any other or others, or give such direction as to costs as the justice of the case may require," The High Court has generally followed a certain practice as to costs, in collision and salvage actions and in refer- ences, which will be found under those heads ; it is probable that in other cases, and especially in the somewhat difficult ones where more parties than two are concerned, a judge of a county court would accept this practice as a guide in his discretionary power over the costs. As to costs in an Admiralty action for collision — (1) One of the vessels may be to blame. (2) Both vessels may be to blame. (3) Neither vessel may be to blame, the collision having occurred through no negligence on either side. (4) Either or both ships may have been under the control of a pilot compulsorily employed, and the owners will be exonerated if the collision is caused solely by his negligence. (5) The owners of either vessel, if to blame, may, under certain circumstances, institute an action to limit their lia- bility ; but this action, as before pointed out, must generally be brought in the High Court, sec. 504, M. S. Act, 1894 (57 & 58 Vict. c. GO, ante, p. 50). (6) Where more than two parties or ships are involved. In each of these the usual practice of the High Court, in the absence of special circumstances, is as follows — (1) In the first case, one vessel alone to blame, costs will follow the event, and be paid by the wrong-doer. (2) Where both vessels are found to blame no costs are ordered — that is to say, each party pays his own costs ; but if in a collision action the plaintiff admits in his claim his vessel is partly to blame, and at the trial the other vessel is also found to blame, the plaintiff is entitled to his costs as having succeeded on the only issue ( The General Gordon, 6 Asp. 533). Where the owner of cargo laden on one ship sues the other vessel, formerly even if both ships were found to blame, the cargo-owner was allowed his costs (see The Milan, Lush. 388) ; but now the practice is assimilated to the case of a shipowner suing {The City of Manchester, 5 P. D. 221, 4 Asp. 201). It may be presumed that, on appeals to the divisional court, that court will follow the same general rules as to costs that Practice of High Court in collision actions. Alone to blame. Both to blame. Action by cargo- owner. Costs on appeal. l-iS AD^iIIRALTY JURISDICTION IN COUNTY COURTS. the Court of Appeal has done in appeals from the Admiralty Division, viz, if the court below has found one vessel alone to blame, but on appeal both vessels are found to blame, no costs will be given either on the a2)peal or for the trial in the court below (The Hector, 8 P. D. 218, 5 Asp. 101 ; The Milanese, 4 Asp. 318). Where, however, the court below has found both vessels to blame, and on an appeal the Court of Appeal confirms that judgment, the appellant will be condemned in the costs of the appeal (see The Hector, uhi sup.) ; but if there is a cross- appeal on the part of the respondents, they must pay such costs as are necessitated by the cross-appeal ( The Lauretta, 4 P. D. 25, 4 Asp. 118 ; The City of Manchester, 5 P. D. 221, 4 Asp. 261). Where no (3) In cases where the collision has not been caused by negligence, negligence of either party, the general rule of the Admiralty Court used to be to allow no costs {The Marpesia, L. E. 4 P. C. 212, 1 Asp. 261) ; but now the practice prevailing in the other divisions of the High Court is followed, and the plaintiff who brings the action and fails to prove negligence is condemned in costs in the absence of special circumstances (The Swansea V. The Condor, 4 P. D. 115, 4 Asp. 115; The Monkseaton, 14 P. D. 51, 6 Asp. 383). As to what may constitute special circumstances, see The Batavier (15 P. D. 37, 6 Asp. 500), in which case the court below held the Batavier, who was de- fendant, alone to blame, and the Court of Appeal held that the collision was an inevitable accident, and allowed the costs of the successful appeal, but ordered no costs in the court below, on the ground that the defendants had told and pleaded an untrue defence inconsistent with the plea of inevitable accident. Inevitable For definitions of what constitutes an inevitable accident, accident. ggg y/^g Marpesia, L. E. 4 P. C. 212, 1 Asp. 261 ; and The Schicann, 1892, P. 419, 7 Asp. 347. Negligence Where the owners of one vessel sue the owners of another of a third vessel for collision, but the owners of the vessel sued are able to show the collision was directly and solely caused by the wrongful manoeuvre of a third vessel, that is an inevitable acci- dent, as far as the vessel sued is concerned, and the suit will be dismissed with costs (The Thames, 2 Asj). 512 ; The Schican, 1892, P. 427, 7 Asp. 347); but the third vessel can be sued by either or both of the other vessels for the damage they have sustained (The Sisters, 1 P. D. 117, 3 Asp. 122; The Schican, 1892, P. 419, 427). COSTS IN COMPULSORY PILOTAGE, 149 (■i) Where a vessel is to blame for a collision, but ber owners Compul- are relieved from liability on the ground that she was in charge sory of a pilot compulsorily employed, and the collision was caused '' * solely by his negligence — (1) If the defendants admit their vessel was to blame, and Where sole solely rely on the plea of compulsory pilotage and P^^'"*- succeed on this plea, they generally get their costs {The Boyal Charter, L. E. 2 A. & E. 362, 3 M. L. C. 262 ; The Juno, 1 P. D. 135, 3 Asp. 217); although the judge will exercise his discretion in each case, see The HanJcoio (i P. D. 197, 4 Asp. 97), where, although the defendants only relied on this plea, the judge made no order as to costs, on the ground that the matter was one of great complexity, and he had not followed a former case. (2) Where the defendants deny that their vessel is to blame. Where and rely on that plea as well as on the plea of comj)ul- °*'^^^ pleas, sory pilotage, and succeed on the latter alone, the practice has been to make no order as to costs (The Livia, 1 Asp. 204 ; The Schwcm, L. E. 4 A. & E. 187, 2 Asp. 259 ; The Daioz, 3 Asp. 477 ; The Mattheio Cay, 5 P. D. 49, 4 Asp. 224). In the case of The General Steam Navigation Co. v. London and Edinburgh Shipping Co. (2 Ex. Div. 467, 3 Asp. 454), a collision action where the defendants pleaded inevitable accident as well as compulsory pilotage, and which was tried before a jury, who found the collision solely due to negligence of the pilot, the Exchequer Division declined to be controlled by the Admiralty practice, and gave the defendants their costs in accord- ance with the then existing Common Law practice. But see now E. S. C, Order LXV. r. 1, S. C. Jur. Act, 1890, sec. 5 (pp. 64, 67). In the Mattheio Cay (uhi sup.) Sir E. Phillimore considered whether the decision of the Court of Appeal in the Swansea. and the Condor (4 P. D. 115, 4 Asp. 115) (a case of inevit- able accident), that costs should follow the event as in other divisions of the High Court, affected the practice in cases of compulsory j)ilotage, but held it did not. Where the defendants raise other issues and also counter- claim and succeed on the ground of compulsory pilotage alone, the practice is to order no costs of the action, but the defendants to pay the costs incidental to the counterclaim {The Euhy, 15 P. D. 164, 6 Asp. 577). 150 ADMIRALTY JUPJSDICTIOX IX COUNTY COURTS. Effect of, in both to blame. Limitation of liability. Where two defendants are sued. Costs of reference. Wliere Lotli vessels are found to blame for the collision, but the owners of one of tbem are exemi)t from liability on tbe ground that the negligence was tliat solely of the compulsory pilot, the practice is to make no order as to costs [The Bighorgs Minde, 8 P. D. 132, 5 Asp. 123 ; TJie Hector, 8 P. D. 218). (5) Where shipowners limit their liability under sec. 503, 504, M. S. Act, 1894, the proceeding, as before jjointed out, will be in the High Court, and it is not therefore necessary to discuss the question of costs. (6) Where the plaintiff claims damages against two defend- ants and each of the defendants as between themselves alleges negligence in the other, and one of them is found alone to blame, the latter may be condemned in the costs both of the jDlaintiff and the other defendant (The Biver Lagan, 6 Asp. 281 ; Green and Burleigh v. Goodyear and General Steam Navigation Co., 6 Asp. 281 n.). Where one of the co-defendants and the plaintiff' were held to blame, the innocent defendant obtained an order for costs against the i^laintiff, there being no order as to costs between the two wrong-doers (The Quickstep, 15 P. D. 196, 6 Asp. 603). Where the plaintiff and both co-defendants all three were found to blame, the order was no costs as between any of them ( The Englishman v. Australia, 1894, P. 239). Probably in a case where both defendants were found to blame, the rule laid down by Lord Esher, M.E., in Stumm v. Dixon (22 Q. B. D. 529) would be followed, that a defendant is not liable for costs which he has not caused the plaintiff to incur. It should be observed, however, that in this case the Court of Appeal were equally divided. The reference to assess the damages is a separate proceed- ing from the original action, and the costs of the reference are in the judge's discretion independent of the costs of the action (The Consett, 5 P. D. 77, 4 Asp. 230). When the registrar in his report states his views as to costs, and no objection is taken to the report, the decree would be in accordance Avith the report as to costs, and in any case the registrar's views would naturally carry great weight with the judge. As a rule the party entitled to damages is entitled to costs where he has put forward a reasonable claim and substantially made it good, and where there is a cross-reference or counter- claim arising from both ships having been to blame, the COSTS IN SALVAGE. 151 ■defendants will pay the costs incurred by tlie plaintiffs in substantiating the claim, and the plaintiffs will pay the costs incurred by the defendants in substantiating the counterclaim (TJie Mary, 7 P. D. 201, 5 Asp. 33). The general practice in collision references where the •claimant has failed to substantiate the whole of his claim has been, where more than one quarter of the claim has been disallowed, to allow no costs, and where more than one-third lias been struck off, to condemn the claimant in the costs of the reference (see The Empress Eugenie, Lush. 138); but this is not a hard and fast rule, and the judge must in each case exercise his judicial discretion (The Fried eherg, 10 P. D. 112, 5 Asp. 426). The general rule in salvage actions is that the defendants Lave to pay all the costs of the action. There are, however, three exceptions to this rule : (1) Where a tender has been made and upheld. (2) Where there has been misconduct or negligence on the part of the salvors. (3) Where the plaintiffs have in any way unnecessarily added to the costs and expenses of the defendant. (1) Where the defendant brings into court a sum of money by way of tender, and the court finds this sum sufficient remuneration for the salvage services, the practice of the Admiralty Court is to make the defendants pay the plaintiffs' costs only up to the time of tender, the plaintiffs paying the costs incurred subsequent to the tender (Tlie William Syming- ion, 10 P. D. 1, 5 Asp. 293). Where there were three actions consolidated, and the defendants made one tender to satisfy all claims which might be made in respect of the said services, and this tender was upheld by the court, the court ordered each jjarty to pay his own costs, on the ground that it was impossible for any one of the salvors to decide whether this tender sliould be accepted or not, as he could form no estimate of the value of the other salvors' services {The Lee, 6 Asp. 395) ; but the court will sometimes give the defendants leave to make one tender in consolidated actions (TA^? Jacob Landstrom, 4 P. D. 191, 4 Asp. 58). The former practice was that a tender should either be made with costs, or distinctly state the grounds on which costs were withheld (The Hichnau, L. E. 3 A. & E. 1 5, 3 M. L. C. 298 ; The Thraeian, L. E. 3 A. & E. 504, 1 Asp. 207); but by the present practice, a tender should not Salvage. General rule defen- dants to pay costs. Exceptions. Tender. Where adequate. In con-- solidated actions. Tender should be 152 ADMIRALTY JUllISDICTION IN COUNTY COURTS. made with- out costs. Costs when suing on agreement. Apportion- ment. Misconiluct or negli- gence or unreason- able con- duct on part of salvors. Miscon- duct. Costs of counter- claim for negli- gence. "Want of skill. be accompanied with an offer to pay costs (The William Sipniiujfou, 10 P. D. 1, 5 Asp. 293). Where plaintiffs sue on an agreement to pay a certain sum as salvage, which agreement is held by the court to be unreason- able, and an award of a less amount is made, if there has been no tender both parties have been left to pay their own costs {The Medina, 1 P. D. 272, 2 P. D. (C. A.) 5, 3 Asp. 219, 305), even where the plaintiffs claimed, either on the agreement or in the alternative, " such an amount of salvage as the court may think fit to award" (The Silesia, 5 P. D. 177, 4 Asp. 338) ; but in the recent case of The Mark Lane (15 P. D. 135, 6 Asp. 5-iO), Butt, J., did not follow the above cases, but gave the plaintiffs their costs, although he set aside the agree- ment to pay £5000, and only awarded £3000. The apportionment of a salvage award when made at the trial, as is usual, does not affect the question of costs, and in no case will fall on the defendant. Where an application is made by the plaintiffs to the court for the apportionment of a sum awarded as salvage, ordinarily the costs will be taken from the fund {The Sjjvee, 1893, P. 147, 7 Asp. 397) ; but the court will exercise its discretion as to costs (see The Wilhelm Tell, 1892, P. 337; The Salthurn, 7 Asp. 474). (2) Misconduct, negligence, or want of skill does not neces- sarily deprive salvors of all right to salvage, but, besides leading to a diminished award, may be punished by depriving the salvors of costs. Thus where salvors had performed a valuable service, but then improperly declined to allow servants of the shipowner on board, and refused to yield up possession, although salvage was awarded, the plaintiffs were deprived of costs (The Pinnas, G Asp. 313); but where the misconduct is such as to disqualify the plaintiffs from recovering salvage at all, the suit will be dismissed with costs according to the ordinary rules (The Capella, 1892, P. 70, 7 Asp. 158; The Yan Yean, 8 P. D. 147, 5 Asp. 135). So also where there has been negligence, the salvors may not only be dein-ived of costs, but condemned in the costs of a counterclaim for the damage sustained ; it is believed that this was done in the case of The Bobert Dixon (4 P. D. 121, 5 P. I>. (C. A.) 54, 4 Asp. 95, 24G), though the reports do not mention the circumstance; but it is discretionary, depending on the facts in each case, and where salvors had by want of skill done damage estimated at £400 to the salved vessel, this amount COSTS IN SALVAGE. ].53 was deducted by the court from the jiniouut awarded, but the plaintitfs were allowed their costs, and not condemned in the costs of the counterclaim (Tlie Dwina, 1892, P. 58, 7 Asp. 173). Unreasonable conduct on the part of the salvors in bringing their suit may also be the cause of inducing the court, in the exercise of its discretion, to deprive them of costs. Thus where part of the crew of one ship brought an action in the High Court for salvage services rendered to another vessel belonging to the same owners, and which involved neither difficulty nor hard- ship, and arrested the vessel, taking bail for £5000, the court awarded them £15 as salvage, but censured their proceedings and condemned them in costs (T/ie Agamemnon, 5 Asp. 92 ; see also The Nasm,yth, 5 Asp. 36-1:). (3) Where plaintiiis insist on bail in an excessive sum, it is the practice of the court to condemn the plaintiffs in the expenses of obtaining the whole or some part of the bail (^The George Gordon, 9 P. D. 40, 5 Asp. 216). And where defendants had admitted the whole of the plaintiffs' claim, but plaintiffs had still insisted on discovery, the plaintiffs were condemned in all costs incidental to discovei'y subsequent to the defence (The Maria, 4 Asp. 94j. In the High Court, the court will condemn in costs a plaintiff' who has resisted a consolidation order and continued a separate action {The Jacob Landstrom, 4 P. D. 191, 4 Asp. 58), or will make him pay some portion of the costs thus in- curred (The Longford, 6 P. D. 60, 4 Asp. 385); but as to the county court having no power of compulsory consolidation, see "Consolidation," p. 161. By Order XXXIX. b., County Court Rules, 1889, r. 35 (County Court Eules, 1892, r. 100, see p. 160), where the defendant in an action brings a claim in another court arising out of the same transaction, and it appears he did not propose to the plaintiffs in the first action, that the court in which the first action was commenced should by agreement have juris- diction also to hear and determine his action, the judge has power to refuse him any costs of his action. As to the costs in actions by different plaintiffs against the same defendant pending the decision of a selected action, see (common law) County Court Rules, 1889, Order VIII. rr. 5 & 6. Unreason- able con- duct. Unneces- sary addi- tion to costs and expensesv County Court Admiralty rule where cross actioii instituted in another court. Costs at common law when actions stayed. 154 ADMIRALTY JURISDICTIOX IX COUNTY COURTS. Costs on salvage ajipeals. In a recent case {The Gijisy Queen, 1895, P. 176), where on appeal the amount awarded for salvage in the court below was reduced by £400, it was stated by the Court of Appeal to be the practice, where the amount has been reduced, to give no costs of the appeal, although this is not a hard and fast rule. (See the note in the Law Eeports to tlie case, citing the names of other cases to the same effect). In The City of Berlin (2 P. D. 187, 3 Asp. -iOlj, where the award was very largely increased on the appeal, the successful ajipellants obtained their costs of the appeal, James, L.J., saying, "It is the custom in this court to give a successful appellant his costs, and I see no reason, on principle, why salvage appeals should differ from appeals in other cases ; " and the other Lord Justices concurred. Prohibition and man- damus. Before the Judicature Acts. Subsequent to Judica- ture Acts in Admiralty Division. The Mecepta. Prohibition and Mandamus. These are matters dealt with in works on general county court practice, and see sees. 126-132, County Courts Act, 1888 (51 & 52 Vict. c. 43). It is sufficient here to point out such points as are peculiar to Admiralty cases. Before the Judicature Acts (1875), the Admiralty Court had no jurisdiction to issue prohibition or mandamus to any inferior court, but, not being itself a superior court, was liable to pro- hibition or mandamus. In a recent case {The Beeepta, 1893, P. 255, 7 Asp. 359), the effect of the Judicature Acts, and of the above sections of the County Courts Act, 1888, were considered, and it was there decided that sec. 16 of the S. C. of Jud. Act, 1873, gave the Admiralty Court the power to issue writs of prohibition ; that Barnes, J., sitting in chambers as vacation judge was a judge of the High Court in all divisions, and therefore a judge of the P. D. & A. Division as regards j)rohibition in an Admiralty matter; and that the effect of sec, 132 of County Courts Act, 1888, is that applications for prohibition cannot be made to various judges of the High Court in succession, as had been the practice before the County Courts Act, 1856(19 & 20 Vict. c. 108, sec. 44) ; and that the decision of the judge of the Admiralty Court in chambers, when he does not wish to have further argument in court, or of a divisional court if the appli- cation was in the first instance made to a divisional court, is final, except for an ajoiieal from the decision of the judge trom judge. PROHIBITION AND MANDAMUS. 155 oi" the divisional court to the Court of Appeal, given by sec. T.) of the S. C. of Jud. Act, 1873. Since the above decision, the S. (J. of Jud. Act, 1894 (57 Effect of «& 58 Vict. c. 16) has come into force. V ^'ioq^ Sec. 1, sub-s. (4j, provides — "In all matters of practice and procedure, every appeal from a judge shall be to the Court of Appeal." Whilst sec. 1, sub-s. (5), provides — " la all cases where there is a right of appeal to the High Court from any court or person, the appeal shall be heard and determined by a divisional court constituted as may be jDrescribed by llules of Court, and the determination thereof by the divisional court shall be final, unless leave to appeal is given by that court or by the Court of Appeal." In the Probate, Divorce, and Admiralty Division, on its Appeal Admiralty side, in practice, there has not been an appeal from a judge in chambers to a divisional court, though there might be, and sometimes was, a rehearing in court by the same judge, in accordance with the practice before the Judicature Acts (S. C Jud. Act, 1873, sec. 50) ; it would therefore appear that sec. 1, sub-s. 5, of the Judicature Act, 1894, set out above, cannot refer to applications to a judge in this division, whether sitting in chambers or in court (see Bocike v. Stevenson [1895], 1 Ch. 358), and that, whether a j)rohibition or mandamus is a matter of practice or procedure within sec. 1, sub-s. (-4), of the above Act or not, an appeal lies in all cases to the ( "ourt of Appeal ; that, in fact, there is nothing in the Act of 1894 to interfere with the practice laid down in The Itece]^>ta (uhi s»j>.). Should the application be made to a divisional court, the Divisional appeal would also naturally lie to the Court of Appeal. It Court of must, however, be borne in mind that if made to a judge alone, the application is still ex parte and for an order nisi practice on in the first instance {Kinilotage in answer to a counterclaim, it would be well for him to give notice to avoid any question of an adjourn- ment or costs at the trial. Service on board ship. Service where violence threatened. Service on a railway company. Special defences. In actions for damage by collision. 168 ADMIRALTY PRACTICE IN COUNTY COURTS. Counter- claim. Judgment may be given for balance proved due to defendant. Counterclaim. The rules for common law actions provide that where a defendant relies on a set-off or counterclaim, he shall give such particulars of it as the plaintiff has to give of his claim (see County iCourt Eules, Order X., 1889, r, 11, Order VI., 1889, r. la (1892, r. 11)), and although the Admiralty rules contain no such special provision as to counterclaims, the general practice as contained in Order X., 1889, r. 11, seems to apply. Order XXIL, 1889, r. 18, provides— " 18. Where in any action a set-off or counterclaim is established as a defence against the plaintiff's claim, the court may, if the balance is in favour of the defendant, give judgment for tlie defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case." As to counterclaims which involve matter beyond the limits of jurisdiction, see p. 57. Cross- actions. Cross Actions. Order XXXIX. b., 1889, r. 35 (1892, r. 100), deals with the case where a second action has been instituted in another court, and r. 36 of the same order where a second or cross action has been instituted in the same court. See p. 160. In such cases it will be seen the consent is only to the district, not as to subject-matter — as might be the case in counterclaims — for both parties have been plaintiffs in the county court, and therefore their respective claims have been within the jurisdiction as to subject-matter. Admission of Liability. Admission The parties can admit liability under Order XXXIX. b., of liability. 1839^ J.J,. 63, 64 (1892, rr. 128, 129). "63. The defendant may at any time after appearance, and the plaintiff may at any time after the filing of a counterclaim, admit liability in any action except for salvage. Such admission shall be by praecipe in the prescribed form, which shall be signed b}' the solicitor for the party, or, if signed by the party in person, shall be attested by a solicitor. (Form 322d, Appendix.) "64. The party filing such prascipe shall immediately give notice thereof to the other party or parties in tlie action, and after receipt of such notice no costs shall be allowed to the party served therewith in Party may admit liability. Notice thereof. TENDER. 169 respect of the farther prosecution of the action so far as regaras the question of liability. " The parties may, before trial, agree that the damages recoverable shall be assessed by the registrar with or without an assessor or assessors." These rules exclude salvage actions, ia which the admission of liability would be useless unaccompanied by tender. Tender. Order XXXIX. b., 1889, rr. 48-50 (1892, 113-115), applies Tender. to tenders. "48. The party desiring to make a tender shall give a notice to the Notice of adverse party of\he terms and amount of the tender, and shall pay P|'^^^°^!^'^ the amount into court, and deliver a prfecipe. Money may be paid into court with a denial of liability, in which case the form in the appendix shall be altered accordingly. (Form 333, Appendix.) "49. Within forty-eight hours after the receipt of the notice of any Notice of such payment into court the adverse party shall file a notice stating acceptauce. whether he accepts or rejects the tender, and, if he shall fail to do so, he shall be deemed to have rejected it. " 50. A party accepting a tender shall be entitled to his costs of Costs may suit, and shall be at liberty to tax and enforce payment of same ^^J^^^^^^^^^ without the necessity of an application to the court for the purpose." Tender in Admiralty actions under these rules is different to the tender before action brought, mentioned in Order X., County Court Eules, 1889, r. 20. As to the practice in the Admiralty Division as to costs in salvage actions where a tender has been made, see " Salvage Costs," p. 151. As no costs are usually allowed to the plaintiff subsequent to a tender where it is ujiheld, it is as well to tender as soon as possible where it is advisable to do so at all ; but in salvage cases it is usually not advisable to tender, unless the sum is so liberal as to ensure its being either accepted or upheld, for if a barely adequate amount be tendered, the court will usually award rather more, being unwilling to deprive the plaintiff of his costs ; besides, it is not unnatural to suppose that a defen- dant, when the danger is past, will rarely over-value salvage services rendered to his property. Payment out of Court. Payment Order XXXIX. b., 1889, rr. 51, 52 (1892, rr. 116, 117), 1^';^^''^"^^^ provide for payment out of court. court. 170 ADMIRALTY PRACTICE IN COUNTY COURTS. Retainer of moneys in court where more than one action. " 51. Money ordered in an Admiralty action to be paid out of court may be paid to the solicitor on the record, without the production of a power of attorney from the party entitled to receive the money, unless the judge shall otherwise order. " 52. Where more than one action has been commenced against a vessel or any property, and the same has been sold, the proceeds thereof shall be retained in court, to abide the decision of the court in the various actions, unless the judge shall otherwise order." Eules 48 to 52 are the only special rules for payment of money into and out of court in the Admiralty jurisdiction of the county courts. For the General Eules, see Order IX., County Court Eules. The rules as to payment in (48,49, p. 169) seem drawn in conformity with what has since been stated to be the practice of the Admiralty Court in cases of tender (see The Mona, 1894, P. 265) ; as they specify that the tender must be accepted or rejected within a certain time, the question in The Mona could not arise in the county court. In the Admiralty Division a tender can be made at any time, and if made even after the decree determining liability, as must usually be the case in damage actions, but before reference would, if upheld, probably save the costs of the reference. The General County Court Eules place a limit of time (Order IX. r. 11), within which payment into court must be made ; but in the absence of any such limit being mentioned in the Admiralty rules, this appears not to apply to Admiralty actions, and the Admiralty practice in the High Court, in cases of tender, would be followed. Discovery, Interroga- tories. Discovery and Inspection. The ordinary rules as to discovery and inspection contained in Order XVI., County Court Eules, apply to Admiralty actions. Interrogatories (for form, see Appendix) are frequently administered in collision cases, the questions being framed so that the answers represent the preliminary act which, in collision cases in the High Court is filed, but not delivered inter partes until the pleadings are closed. The matters contained in a preliminary act are as follows : — (1) The names of the vessels which came into collision, and the names of their masters ; (2) time of collision ; (3) place DISCOVERY AND INSPECTION. 171 of collision ; (4) direction and force of the wind ; (5) state of the weather ; (6) state and force of the tide; (7) the course and speed of the vessel when the other was first seen ; (8) the lights (if any) carried by her ; (9) distance and bearing of the other vessel when first seen; (10) the lights (if any) of the other vessel which were first seen; (11) whether any lights of the other vessel other than those first seen came into view before the collision ; (12) what measures were taken, and when, to avoid the collision ; (13) jiarts of each vessel which £rst came in contact. The interrogatories must of course be adapted to each case, and need not be confined to the above matters. It is usual to ask who was in charge, and what acts of negligence are com- plained of, and what rules of navigation it is alleged were infringed. In collision and salvage causes, in nearly every case, and in Documents. other cases as occasion may rec[uire, it is usual to have discovery of such documents as official log, ship's log, engineer's log, deck or scrap log, surveys on ship and cargo, depositions and any report to or telegrams from the master or chief engineer to the owners. In a case where the captain of a Queen's ship was sued by Privilege, the owner of a private vessel for collision, inspection of the log was ordered; but a report made by the captain for the information of the Admiralty was held privileged on the ground of public policy {H.M.S. Bdlerojilion, 2 Asp. 449). The ques- tion as to whether it is injurious to public policy or not is determined by the statement on oath of the head of the department having the custody of the paper (Beatson v. SJcene, 5 H. & N. 838). Survey reports are not privileged unless they are obtained Survey only to be laid before a solicitor for the purposes of his ^^^°^ ^' advice, or to enable him to take some step in the action, on the principle laid down in Soutliioark Water Co. v. Quick (3 Q. B. D. 315) ; The Theodor Korner (3 P. D. 1G2, 4 Asp. 17). In practice in collision cases between British ships, the Deposi- depositions made before the receiver of wreck by various members of the respective ships' crews are disclosed and in- spected ; but where the collision is between a British and a foreign vessel, as depositions need not be made by the latter, the depositions made by the crew of the British ship are held privileged {The Palermo, 9 P. D. 6). 172 ADMIRALTY PRACTICE IN COUNTY COURTS. Protests. Protests are disclosed, especially in salvage cases (see Tlic Emma, 2 W. Eob. 315 ; The Hechoig, 1 Spinks 19) ; but as they are not in the parties' possession, but the notary's, in the absence of any copies obtained by the parties at the time of making the affidavit, they would not be produced. The parties by agreement generally dispense with the security for costs of discovery, but such consent does not deprive the judge of his discretion to order it (Aste v. Stumore, 13 Q. B. D. 326, 5 Asp. 175). In the Admiralty Division there is a general practice, sanctioned by the court, that the deposit may be waived by consent, and there seems no reason why such a practice should not be allowed in a county court generally, or for any class of cases. The court will order foreign defendants who have appeared in an action in rem to make discovery, but will extend the time to do so {TJie Emma, 3 Asp. 218). Where an action is brought by or against cargo-owners, the shipowners cannot obtain discovery of any of the ship's papers or captain's letters from the cargo-owners. For this reason, and also because a defendant ship cannot counterclaim against a plaintiff cargo, it is not uncommon in collision cases for the action to be brought by cargo-owners. Notice to The notices to admit and produce documents follow the usual produce? practice as laid down in Order XVIII., County Court Eules, and are of importance in regard to the documents specified above in Admiralty actions. The notice must be given not less than five clear days before trial. Notice to The notice to admit facts is governed by Order IX., County admit facts. ^^^^,^ j^^j^^^ ^^ ^ ^^^ g As there are no pleadings in the county court, this process may be useful, especially in cases of damage to cargo, to avoid the expense which otherwise may unnecessarily be incurred iu bringing evidence to prove in whom the right of action vests. Transfers, Transfer, As to the practice on transfer from a county court by order Jur. Act *^^ *^^ Higt Court to the Admiralty Division, see sec. 6, C. C. 1868, ' Ad. Jur. Act, 1868, p. 60. ^'"'' As to transfer from county court to High Court by county Sec. 7. court, see sec. 7, C. C. Ad. Jur. Act, 1868, p. 59. As to transfer by county court to another county court, or Sec. 8. to High Court, see sec. 8, C. C. Ad. Jur. Act, 1868, p. 61. TRANSFER. 173 Order XXXIX. b., 1889, rr. 33, 34 (1892, rr. 98, 99), applies to all transfers under the C. C. Admiralty Jurisdiction (see p. G2). As to a possible power of transfer of certain Admiralty County actions from Higli Court to county court under sec. G5, County C!ourts Act, Courts Act, 1888, see p. 63. The practice is laid down in Sec. 65. that section and Order XXXIII., County Court Eules, 1889, rr. 1-3. The application to transfer is made by summons to a judge in chambers. Sitting of Court. As to sittings of the court and powers for special sittings, piace of see sec. 13, C. C. Ad. Jur. Act, 1868, and Order XXXIX. b., ^'■^'^^^ 1889, rr. 1-3 (1892, rr. 66-68), ante, p. 75. The general sittings of the courts are provided for by sec. 10, County Courts Act, 1888. For form of praecipe on applica- tion for sitting at special place, see Form 318, Appendix. As to the formation of the tribunal, judge alone, judge and Assessors. assessors, or judge and jury, see sec. 11, ante, p. 69. As to method of summoning assessors, see Order XXXIX. b., County Court Eules, 1889, rr. 58-62 (1892, rr. 123-127), p. 76. For form of summons see Forms 335, 336, Appendix. Examination of Witnesses. See sec. 20, C. C. Ad. Jur. Act, 1868, ante, p. 79, and general Examina- tion of witnesses. County Court Rules, 1889, Order XVIII., rr. 14-28, Appendix *'°" "^ The Admiralty Rules, Order XXXIX. b., 1889, rr. 75, 76 (1892, rr. 140, 141), provide— " 75. A party or his solicitor shall be entitled to issue subpoenas ad Subpoenas. testificandum and duces tecum under the seal of the court without inserting the names of the witnesses. " 76. Service of a subpcEna may be effected by a party to the action or his solicitor or agent, or by any person employed by either of them ill any part of England or Wales." At an examination of witnesses in an Admiralty cause, it is very usual to employ a shorthand writer by agreement, and to dispense by consent with the necessity of reading over the deposition to the witness and obtaining his signature. In the High Court, where an error appeared on the short- hand transcript thus taken, the parties applied by motion to 174 ADMIRALTY PRACTICE IN COUNTY COURTS. Summon- ing and punish- ment of ■witnesses. the court, and the transcript was ordered to be taken off the file and returned to the examiner for correction, the costs so incurred being made costs in the cause (Tlie Knutsford, 1891, P. 219, 7 Asp. 33). Sec. Ill of County Courts Act, 1888, deals with the case of recalcitrant witnesses : " 111. Every person summoned as a witness, either personally or in such other manner as shall be prescribed, to whom at the same time payment or a tender of payment of his expenses shall have been made on the prescribed scale of allowances, and who shall refuse or neglect, without sufficient cause, to appear, or to produce any books, papers, or writings required b}'' such summons to be produced, or who shall refuse to be sworn or give evidence, and also every person present in court who shall be required to give evidence, and who sliall refuse to be sworn or give evidence, shall forfeit and pay such fine, not exceed- ing ten pounds, as the judge shall direct; and the whole or any part of such fine, in the discretion of the judge, after deducting the costs, shall be applicable towards indemnifying the party injured by such refusal or neglect, and the remainder thereof shall be accounted for by the registrar to the treasurer." County Court Kules, 1889, Order L. b. r. 8 (1895, r. 42), provide — "8. An order under sec. Ill of the Act, imposing a fine for non- attendance on a person summoned as a witness, or a fine on a person present in court who refuses to be sworn or give evidence shall be according to the form 148a in the Appendix; and payment of such fine may be enforced, upon the order of the judge, pursuant to sec. 167 of the Act, and according to the forms 149a, 149&, and 149c in the Appendix, by distress and sale of the goods of the witness under warrant of execution, or, in default or (as the case may be) in lieu of distress, by imprisonment of such witness for any period not exceeding the period which under the summary Jurisdiction Acts may be imposed in respect of the default of sufiicient distress to satisfy a similar sum adjudged to be paid on summary conviction, regard being had to the provisions of the Summary Jurisdiction Acts set out in Part II. of the Appendix." (For Forms, see Appendix.) The provisions of the Summary Jurisdiction Acts contained in the Appendix to the Rules, 1895, are 11 & 12 Vict. c. 43; the Summary Jurisdiction Act, 1848, sees. 18-22 and 28 ; 42 & 43 Vict. c. 49, the Summary Jurisdiction Act, 1879, sees. 5 and 21, subs. 1 to 4 inclusive. 1889, Order L. b. r. 7 (1895, r. 41) of the same order is— " 7. Summons to witnesses shall be according to the Forms 145&, 14G6 in the Appendix." TRIAL, 175 Trial Order XII., County Court Eules, 1889, rr. 12-15, are as Trial. follows : — Adjoui'u- ment of, on joiat appli- cation of parties. Postpone- meut of, upon appli- cation. "12. The judge or registrar may at any time postpone the trial of any action or matter upon the joint application of the parties. No hearing fee shall be paid where the order is made before the case is called on for trial, but no second or subsequent postponement shall be granted until the hearing fee be paid. "13. Where in any action or matter interlocutory proceedings are contemplated or pending which cannot be concluded in time to enable the parties to prepare for the trial of such action or matter on the day fixed for the same, the judge or registrar may, upon the application of any party, and upon being satisfied that such interlocutory proceed- ings are necessary and proper, make an order postponing such trial upon such terms as to costs or otherwise as he shall think fit, and such order shall be served upon the other party. " 14. Where it appears to the judge or registrar that from the course of proceedings in any action or matter the trial cannot be held on the return-day, he may postpone the trial until such other day as the state of the proceedings require, and notice of such postponement shall be given by the registrar to all parties and persons interested. (Form 144, Appendix.) " 15. When anything required by the practice of the court to be done by either party, before or during the trial, has not been done, the judge or registrar may, in his discretion, and on such terms as he shall think fit, adjourn the trial to enable the party to comply with the practice." Admiralty cases in the county court are conducted as any other cause. The plaintiflf s case is oiiened, his witnesses are examined and cross-examined ; and if the defendant calls no witnesses, the plaintiff then sums up his case, and the defendant addresses the court last. Where the defendant calls witnesses or has a counterclaim, or where there are cross-actions, after the plaintiff's witnesses have been called, the defendant opens his case ; the defendant's witnesses are then examined and cross-examined ; then the defendant sums up his case, and the plaintiff has the final right of addressing the court. In the Admiralty Court, where the facts of the case — at any rate, in collision and salvage and some other causes — are fully set out in the pleadings, it is not usual for the plaintiff or defendant to open their case. In the High Court, from the manner in which the case is Right to presented on the pleadings, questions may arise as to which ^^S'"- Postpone- ment of, by- judge or registrar. Adjoui'n- ment for non-com- pliance witli rules. 176 ADMIRALTY rRACTICE IX COUNTY COURTS. party has tte riglit to begin ; but, in tlie absence of pleadings, sucb questions can rarely arise in county court actions. Onus of The rough test is to consider for whom judgment would be P^°° ■ entered if no evidence were given at all, as this consideration shows clearly on which party the onus of proof lies, and it is for such party to begin. Where there are cross-causes of collision heard together, the jilaintiif in the suit first entered is treated as plaintiff, and begins. Collision. In certain circumstances the onus lying on the j)laintiff is very easily discharged. Thus if a ship is at anchor, and is run into by another vessel which is under way, the onus lying on the plaintiff is satisfied by his i>roving the vessel was properly moored in a proper place, with the addition, if the collision takes place at night, that the anchor light or lights were duly exhibited and burning brightly (Tlie Annot Lyle, 11 P. D. 114). The onus is then shifted to the defendants, and they must show that the collision was caused, not through any negligence on their part, but by a compulsory pilot or inevitable accident (The Indus, 12 P. D. 46, 6 Asp. 105). Where the defence is compulsory pilotage, when the defen- dants have proved fault on the part of a pilot who is com- pulsorily in charge, the burden is transferred to the plaintiff of proving contributory negligence on the part of the crew (Clyde Navigation Co. v. Barclay, 1 App. Cas. 790, 3 Asp. 390). The onus can, of course, be shifted by admission from either side. Thus if the defendant admitted the vessel to be properly at anchor, with a proper light exhibited, the onus would then lie on them to prove something exonerating them from liability for the collision. Where any of the statutory regulations for preventing col- lisions at sea have been infringed by a ship, to exempt her from blame the onus is cast on those responsible for her navigation of proving that such an infringement could not by any possi- bility have contributed to the collision (The Duke of Buccleugh, 1891, A. C. 310, 7 Asp. 68). Bills of Where the action is for non-delivery of goods shipped under lading. g^ ^,jjj ^f lading, a recent case in the Court of Appeal has shown where the onus of proof lies. The plaintiff has to show the contract and non-deliveiy of the goods ; it is then for the defendant to excuse himself, if he can, by showing that the exceptions contained in the contract protect him. Then, if the excepted cause by itself sufficiently accounts for the loss, TRIAL. 177 the burden of proof is on tlie plaintiff to show there is some further cause which prevents the exception from screening the defendant ; e.g., if the defendant relies on the exemption " perils of the seas," it is on the plaintiff to prove those perils were caused by the negligence of the defendant's servants {The Glendarroch, 1894, P. 226, 7 Asp. 420). A bill of lading signed by the master is prima facie evidence that the amount of goods mentioned therein was shipped on board the vessel, and the onus of proving that a less quantity was in reality shipped is thus thrown on the shipowner {McLean v. Flemimj, 2 H. L. (Sc.) 128, 1 Asp. 160; Smith & Co. V. Bedouin S. Nav. Co., 1896, A. C. 70),- and the words " shipped in good order and condition," though followed by the words " weight, contents, and value unknown," admit that the external condition of the goods was good, and throw the onus on the shipowner of excusing himself {The Peter der Grosse, 1 P. D. 414, 3 Asp. 195), but it is competent to parties to contract that the bill of lading shall be conclusive evidence of the amount shipped {Lishman v. Christie, 19 Q. B. D. 333, 6 Asp. 186). In Admiralty causes in the county court, especially where any shorthand appeal is likely to follow, the parties frequently agree to employ writer, a shorthand writer, making this expense costs in the cause; and the costs of any transcript follow the costs of the appeal. In the City of London Court there is an official shorthand writer, but a transcript of his notes has to be paid for {R, V. His Honour Comr. Kerr and Hives, 70 L. T. 595) ; but his presence does not relieve the judge from taking a note of a point of law (Sutton v. L. C. & D. By. Co., Times newspaper, May 19, 1896). In Queen's Bench cases the practice seems to be, where the case is tried by a jury, only to allow on taxation the short- hand writer's notes of the judge's summing up, and that only in exceptional cases {Andrews v. 3Iockford, 1896, 1 Q. B. 372, at p. 385), but not shorthand notes of the evidence {Pilling v. Joint StocJc Institute, 73 L. T. 570). In cases tried by a judge and assessors, or a judge alone, following the same principle, it appears a shorthand note of the judgment would be allowed on taxation. For practice as regards shorthand notes on examination of witnesses, see a7ite, p. 173. In the Admiralty Division, by virtue of sec. 18, Admiralty inspection N 178 ADMIRALTY PRACTICE IN COUNTY COURTS. of pro- Court Act, 1861 (24 Vict. c. 10), eitlier of tlie parties can P^i*^y- apply, where necessary, for an inspection of the property by the Trinity masters who act as assessors, or by the parties themselves, and this course was recently followed in The Duke of Bucdeugh (6 Asp. 471). Order XXII. r. 13 of the County Court Eules gives the county court judge power to inspect, or to order the jury to inspect, any property or thing at his discretion, but is silent as to assessors. If, however, the judge himself inspects, there would seem no difficulty as to assessors going too. Moreover, if the general powers of Admiralty jurisdiction (sec. 3, p. 5) do not convey the right to have the assessors to view the ship on the application of a party, such a right would appear to be granted by County Court Kules, Order XII. r. 3, but should not be exercised before the trial {The Victor Covacevich, 10 P. D. 40). Adjourn- See. 106, County Court Act, 1888, gives the judge power to ment. grant time or adjourn any court or hearing, and hence he can reserve judgment in any case. " 106. The judge may in any case make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of the action or matter, and also may from time to time adjourn any court, or the hearing or further hearing of any action or matter, in such manner as the judge may think fit." Judgment. Judgment. For forms of judgment in county courts where the amount is decided by the court, see Forms 328, 329 (Appendix). The decree of the court fixing liability, leaving the damages or amount due to be assessed by the registrar or registrar and assessors, is not a final judgment (^The Dulce of Bucdeugh, 1892, P. 201, 7 Asp. 294), and hence an amendment as to the parties can be made subsequent to it (see p. 159, ante). Decree Where both vessels were held to blame, the form of decree where both jn the High Court, before the Judicature Acts, where the to blame. -,. ■, , . proceedings were by cross-actions, was — Form in " The judge, being assisted by , and having heard High Court counsel on both sides, pronounced that the collision in question actions. ill this cause was occasioned by the fault or default of the master and crew of the , and by the fault or default of the master and crew of the ; that the damage arising therefrom ought to be borne equally by the owners of the JUDGMENT. 179 and Ly the owners of the , and, for a moiety only of the damage proceeded for, condemned the defendants and their bail in the said moiety of the said damage, and referred the same to the registrar, assisted by merchants, to report the amount thereof, but made no order as to costs." A similar decree was made in the second action against the owners of the other vessel. Since the Judicature Acts, where there is a counterclaim the form of decree is — " The judge, being assisted by , and having heard Form in counsel on both sides, pronounced the collision in question in ^'S^ Court wner6 this action to have been occasioned by the fault or default of counter- the master and crew of the , and by the fault and default claim. of the master and crew of the ; that the damages arising therefrom ought to be borne equally by the owners of the , and by the owners of the ; and he condemned the owners of the in a moiety of the plaintiff's claim in respect of the said damages, and also condemned the owners of the in a moiety of the defendants' counterclaim in respect of the said damages, and referred the said damages to the registrar, assisted by merchants, to assess the amount thereof, but made no order as to costs." It has been pointed out before (p. 142) that in cases of both Whereboth to blame there are not two cross-liabilities for half the loss *° blame each shipowner has sustained, but one liability for the differ- bility. ence between the moieties of the aggregate losses {The Stoomvaart Maatschappy v. P. and 0. S. Nav. Co., 7 App. Cas. 795, 4 Asp. 567). In the county court. Order XXII., County Court Kules, Common 1889, r. 18, provides— ?'^^^' ^^^'f^^ * m county " 18. "Where in any action a set-off or counterclaim is established court. as a defence against the plaintiff's claim, the court may, if the balance Order is in favour of the defendant, give judgment for the defendant for " " ' ' ' such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case." The form of judgment under this rule is — Judgment wliere a Counterclaim has been made. "It is this day adjudged that the jjlaintiff in the original action do Form 35. recover against the defendant in the original action the sum of £ for debt, [or damages] and £ for costs, amounting together to the sum of £ [or that judgment be entered for the defendant [or that judgment of nonsuit be entered] in the original action, and that 180 ADMIRALTY PRACTICE IN COUNTY COURTS. only for balance. the plaintiff in the said action do pay the sum of £ for the said defendant's costs.] " And it is further adjudged that the plaintiff by counterclaim do- recover against the defendant by counterclaim the sum of £ for debt [or damages, as the case may he] and £ for costs, amounting together to the sum of £ [or that judgment be entered for the defendant by counterclaim [or that the counterclaim be struck out], and that the plaintiff by counterclaim do pay the sum of £ for the said defendant's costs.] " And it is ordered that the defendant [or plaintiff] by counterclaim do pay to the registrar of the court the sum of £ [add ivhere necessary, being the balance in favour of the plaintiff by counter- claim after deducting the amount adjudged to be due to the plaintiff in the original action] ; and that the said sum be so paid on the day of [or by instalments of for every days, the first instalment to be paid on the day of 18 County When there are cross-judgments, sec. 150, Connty Conrts isss^^s"^^*' ^*^*' ISS^' provides as to execution only being taken out for 150. ' the balance. Execution " 150. if there shall be cross-judgments between the parties, execu- tion shall be taken out by that party only who shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum, and satisfaction for the remainder shall be entered, as well as satisfaction on the judgment for the smaller sum ; and if both sums shall be equal, satisfaction shall be entered upon both judgments." Reference. The power to refer matters of account as distinguished from arbitration (County Courts Act, 1888, sec. 104; County Court Eules, Order XX.), except by agreement, as to which see Order XXXIX. B., County Court Eules, 1889, r. 64 ad fin., p. 168, was first given to county courts by sec. 92, County Courts Act, 1888 (see ante, p. 79). The rules specially relating to Admiralty actions are con- tained in Order XXXIX. b., 1889, rr. 65-73 (1892, 130-138); but see also County Court Rules, Order XII. r. 10, and Order XXIV. rr. 1-4, & 19, Appendix. Assessment of Damages. "65. In all actions excepting salvage the judge may, instead of giving judgment for any specified amount, give judgment settling the rights of the parties and order a reference to the registrar or to the registrar and assessors as to the amount, which shall bear interest from References as to damages. .Tu'lge may order reference. REFERENCE. 181 such date as the registrar may allow at the rate of -i per cent, per annum. "66. After an order has been made under the last rule, or an Particulars admission of liability filed under rule 63, the solicitor for the claimant =i'i (C. C. E. 1896, r. 13). Item 93. In the cases mentioned in Order L. a. r. 7 for settling petition, interrogatories, or other matters required in the course of any action or matter, scale B, £1 3s. Qd. ; C, £l 3s. 6d. to £2 4s. 6d. Item 94. Advising on evidence, scale B, £1 3s. 6d. ; C, £2 4s. 6fL Item 95. Plans, charts, or models for use of the judge at the trial, not exceeding in the whole, scale A, £1 Is.; B, £2 2s. ; C, £3 3s. Judge can It should be borne in mind that iu many cases the judge can "^rt^^^f ^y ^^^ order deprive the party of certain costs — for instance, certain refreshers ; and in many cases it may be well to ask the judge items. j^{. ^^Q ^j.£f^j fQj. certain items, although his order is not abso- lutely necessary ; for instance, for fee on conference, which is otherwise in the registrar's discretion if marked on the brief when delivered (item 87). Refresher As regards refreshers where the case has been in the court list, but has not been reached, see HeajJ v. Peart (1891, 1 Q. B. 110), where a refresher was allowed, the case being considered " adjourned for want of time," item 88 (at that time numbered 78). Sec. 119 of the County Courts Act, 1888, referred to in r. 6 above, is as follows : — Costs on "119. The judge may award costs on any scale higher than that Jiig er which would be otherwise applicable to the plaintiff on any amount recovered, however small, or to a defendant who successfully defends an action brought for any amount, however small, provided that the said judge certifies in writing that the action involved some novel or difficult point of law, or tliat the question litigated was of importance to some class or body of persons, or of general or public interest." The application must be made immediately after trial, r. 6. And Order L. A. County Court Eules, 1889, r. 8 — Judge's "8. Where a judge certifies under section one hundred and nineteen certificate of the Act, the certificate shall be entered at the end of the minutes for costs. on case in list. COSTS. 193 of the court of the day on which it is given, and shall be signed by the judge." County Court Rules, Order L.A., 1889, rr. 13-lG (1892, rr. 165-168), are as follow : — " 13. Where a counterclaim is raised and tried, unless the judge shall otherwise order, the scale upon which the costs of the partii's are to be taxed shall be determined as follows : — "(a) If plaintiff is successful on both claim and counterclaim, by the amount which he recovers on his claim, unless the amount of defendant's claim is the larger, in that case the costs incurred subsequently to the delivery of the counter- claim shall be determined by the amount of such counter- claim. " (b) If defendant is successful on both claim and counterclaim, by the amount which he recovers on his counterclaim, or the amount of plaintiff's claim, whichever may be the larger. " (c) If both parties are successful, by the amounts which they recover on their respective claims; and if both claims fail, by the amount claimed by the opposite party. " 14. Where the demand is unliquidated and the plaintiff recovers less than the amount claimed, the judge may order that his costs be taxed on the scale applicable to the amount claimed, or any inter- mediate scale. "15. Where the costs of a defendant are being taxed, the word 'recovered,' wherever it occurs in the scale, shall be deemed to be • claimed.' " 16. Where the plaintiff recovers less than the amount of his claim, so as to reduce the scale of court fees, he shall pay the difference." General Directions as to Costs. Couuty Court Eules, 1889, Order L. a. rr. 17-24 (1892, rr. 169-176), contain general directions as to costs. " 17. Costs not sanctioned by the scale are not to be allowed, and costs are not to be allowed as between the parties to an action in respect of searching for payments into court nor in respect of any proceedings to enforce payment of a judgment or order by way of execution against the goods or commitment under the Debtor's Act, 1869, save as provided in Order XXV. rr. 38a and 386. " 18. When under the scales or rules a discretion as to the allowances to be made is vested in registrars, they are required to exercise it with care and discrimination, and strictly in accordance with the particular directions set forth in the scales and rules. " 19. No costs which are to be paid or borne by another party shall Counter- claims. When plaintiff recovers less than claim. Defendant's costs. Fees where plaintiff recovers less than he claims. No costs allowed it' not sanc- tioned by scales. Discretion of registrar when costs unneces- sarily in- curred. 194 ADMIRALTY PRACTICE IX COUNTY COURTS. Discretion- ary fees and allow- ances. Where separate judgments against defendants. Folio. Costs of person in fiduciary, etc., position. be allowed which do not appear to the registrar on taxation to have been necessary or proper for the attainment of justice or defending the rights of the party incurring the same, or which appear to such oificer to have been incurred through over-caution, negligence, or mistake, or merely at the desire of such party. "20. All fees or allowances which are discretionary shall, unless otherwise provided, be allowed at the discretion of the registrar on taxation, who, in the exercise of such discretion, shall take into con- sideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and importance of the action or matter, the amount in- volved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings, and all other ch'cumstances. "21. Where two or more defendants are joined and judgment is given separately against each with costs, unless the judge shall other- wise order the costs shall be apportioned according to the respective amounts of each judgment. " 22. A folio shall comprise 72 words, each figure comprised in a column or authorized to be used counting as one word. "23. When any real property is directed to be sold, the ordinary conveyancing charges shall be allowed. " 24. Where in the course of an action or matter a party suing or sued in a fiduciary or representative character necessarily incurs costs not allowable upon taxation under any scale, the registrar shall apply to the judge, who may, by an order to be filed with the proceedings^ allow such a sum as he may think fit for such costs to be paid out of any funds in court applicable to the purpose." The following are the rules as to expenses allowed to witnesses. County Court Kules, Order L.a., 1889, rr. 25-32 (1892, rr. 177-184). Allowance to wit- nesses. "25. Subject to the following rules, there may be allowed to witnesses for their attendance at court the sums mentioned in the scales in the Aj^pendix. "26. Where the witness is a plaintiff in the action or matter he shall not be entitled to any allowance, except for travelling, unless he is a domestic or menial servant, a labourer, a servant in husbandry, a journeyman, an artificer, a handicraftsman, a miner, or any person engaged in manual labour, or unless the judge in any particular case, for reasons of special hardship, shall otherwise order. " 27. There may be also allowed to all witnesses, including plaintiffs and defendants if called as witnesses, for travelling expenses, the sum which shall have been actually and reasonably paid by them; but WITNESSES EXPENSES. 195 such expenses shall in no case exceed in the whole a sum equal to sixpence per mile one way. "28. If witnesses attend in more than one cause they shall be allowed a proportionate part of their allowances in each cause only. "29. The costs of witnesses, whether they have been examined or not, may, unless otherwise ordered by the judge, be allowed, though tliey have not been summoned. " 30. Seamen necessarily detained on shore for the purpose of an action or matter shall be allowed such remuneration as the judge may order, or, in the absence of an order, as the registrar may think reasonable compensation for their loss of time. " 31. In any action or matter in which a party is entitled of right or by order of the judge, to tax his costs on scales B, or C. in the Appendix, the judge may order that any expert or scientific witnesses may be allowed for qualifying to give evidence and for attending such trial such sums as the registrar on taxation may think fit, not exceed- ing the maximum allowances mentioned in the scale of allowances to * expert and scientific witnesses " in the Appendix, and in like cases the judge, subject to the provisions of the next rule, may order that the expense of preparing and proving plans, drawings, models, etc., shall be allowed. " 32. Persons who prepare plans, drawings, models, etc., for the Allowance purpose of illustration, and who if called at the trial prove the for proof correctness of such plans, drawings, models, etc., only, shall not be ' j^^^ ^^^^ entitled to allowances as expert and scientific witnesses, but shall be allowed for their attendance upon the scale applicable to ordinary witnesses, and there may be also allowed for the preparation of sucli plans, drawings, models, etc., and of all tracings and copies thereof, the sum reasonably paid for the same so long as it shall not exceed the sums mentioned in item 95 of the scale of costs." As to experts in Admiralty causes, see p. 73. Eminloyment of Advocate. Order LI., County Court Eules, 1889, r. 8. " 8. It shall not be necessary for either party to give notice to the No notice other, or to the court, of his intention to employ a barrister or of employ- solicitor to act as his advocate at the trial, and the allowance of costs ^^^^j^gg" ^^ for such barrister or solicitor shall not be affected by such want of solicitor notice." required. A solicitor can only appear as of right as an advocate in a county court when he is the solicitor, whether permanently employed by another solicitor or not, who has general charge 196 ADMIRALTY PEACTICE IN COUNTY COURTS. of and responsibility for the action in question, see sec. 72, County Courts Act, 1888, r., and Beg. v. Judge of County Court of Oxfordshire (1894, 2 Q. B. 440). But tlie judge has a dis- cretion to allow any one not being a solicitor or barrister to apijear instead of any party to address the court, but such person is not entitled to any fee. APPENDIX.* COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868. 31 & 32 Vict. Chap. 71. An Act for conferring Admiralty Jurisdiction on the County Courts. [Slst July, 1868.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as The County Courts Admiralty Short titles Jurisdiction Act, 1868 (p. 1). 2. If at any time after the passing of this Act it appears to Appoint- her Majesty in Council, on the representation of the Lord ™*^iit o^ Chancellor, expedient that any county court should have courts for Admiralty jurisdiction, it shall be lawful for her Majesty, by Admiralty- Order in Council, to appoint that court to have Admiralty jurisdiction accordingly, and to assign to that court as its district for Admiralty purposes any part or parts of any one or more district or districts of county courts ; and the district so constituted for that court, with the parts of the sea (if any) adjacent to that district to a distance of three miles from the shore thereof, shall be deemed its district for Admiralty pur- poses ; and accordingly the judge and all officers of the court shall have jurisdiction and authority for those purposes throughout that district, as if the same was the district of the court for all purposes ; and, from a time to be specified in each such order, this Act shall have effect in and throughout the district so constituted ; and any such order may be from time to * The numbers at the end of each paragraph or section denote the pages in the work where such jiaragraph or section is set out and referred to. 198 APPENDIX. Extent of Admiralty jurisdiction of county courts. Restric- tions on county court juris- diction in certain cases. No county court other than that ap- pointed to have juris- diction. time varied as seems expedient ; and a county court so ajipointed to have Admiralty jurisdiction, and no other county court, shall, for the purposes of this Act, be deemed a county court having Admiralty jurisdiction : provided that no judge of a county court, except the judges of the London court, shall have jurisdiction in the city of London (p. 2). 3. Any county court having Admiralty jurisdiction shall have jurisdiction, and all powers and authorities relating thereto, to try and determine, subject and according to the provisions of this Act, the following causes (in this Act re- ferred to as Admiralty causes) (j;. 5) : (1) As to any claim for salvage — any cause in which the value of the property saved does not exceed one thousand jiounds, or in which the amount claimed does not exceed three hundred pounds (p. 6) : (2) As to any claim for towage, necessaries, or wages — any cause in which the amount claimed does not exceed one hundred and fifty pounds (^pp. 21, 23, 27) : (3) As to any claim for damage to cargo, or damage by collision — any cause in which the amount claimed does not exceed three hundred pounds (p. 39) : (4) Any cause in respect of any such claim or claims as aforesaid, but in which tiie value of the j)roperty saved or the amount claimed is beyond the amount limited as above mentioned, when the parties agree by a memorandum signed by them or by their attor- neys or agents that any county court having Admiralty jurisdiction, and specified in the memorandum, shall have jurisdiction (p. 57). 4. Nothing in this Act, or in any Order in Council under it, shall confer on a county court jurisdiction in any prize cause, or in any other matter within the Naval Prize Act, 1864, or in any matter arising under any of the Acts for the suppression of the slave trade, or any Admiralty jurisdiction by way of appeal {p. 4). 5. From and after the time specified in each Order in Council under this Act appointing a county court to have Admii-alty jurisdiction within any district as the time from which this Act shall have efi'ect in and thl-oughout that district, no county court, other than the county court so appointed, shall have jurisdiction within that district in any Admiralty cause ; provided that all Admiralty causes at that time pending C. C. AD. JUR. ACT, 1868. 199 in any county court within tbat district may be continued as if no sucli Order in Council had been made (p. 4). 6. The High Court of Admiralty of England, on motion by As to trans- any party to an Admiralty cause pending in a county court, ^^ '^°^ may, if it shall think fit, with previous notice to the other court by party, transfer the cause to the High Court of Admiralty, and ?J".'^*;^ °^ , .-. . ,, High Court may order security for costs, or impose such other terms as to of Admi- the court may seem fit {p. 60). ^'^^^J- 7. If during the progress of an Admiralty cause in a county As to court it appears to the court that the subiect matter exceeds the "^'^"^ ^J" ..... causes by limit in respect of amount of the Admiralty jurisdiction of order of the court, the validity of any order or decree theretofore made county by the court shall not be thereby affected, but (unless the Hio-h Court parties agree, by a memorandum signed by them or by their of Admi- attorneys or agents, that the court shall retain jurisdiction,) ^ ^" the court shall by order transfer the cause to the High Court of Admiralty ; but that court may, nevertheless, if the judge of that court in any case thinks fit, order that the cause shall be prosecuted in the county court in which it was commenced, and it shall be prosecuted accordingly (p. 59). 8. If during the progress of an Admiralty cause in a county As to court it shall appear to the court that the cause could be more t^'i'^s^^l' o^ C3.USGS to conveniently prosecuted in some other county court, or in the other High Court of Admiralty of England, the court may by order county transfer it to such other county court, or to the High Court of court of Admiralty of England, as the case may be, and the cause shall Admiralty. thenceforward be so prosecuted accordingly (p. 61). 9. If any person shall take in the High Court of Admiralty Restric- of England or in any superior court proceedings ichich he might, ^°^^ °^ ivithout agreement, have taJcen in a county court, except by order ings in of the judge of the High Court of Admiralty or of such superior *^® Court court or of a county court having Admiralty jurisdiction, and shall i-aity or not recover a sum exceeding the amount to which the jurisdiction Superior of the county court in that Admiralty cause is limited by this Act, and also if any person ivithout agreement shall, except by order (IS aforesaid, take proceedings as to salvage in the High Court of Admiralty or in any superior court in respect of property saved, the value of ichich when saved does not exceed one thousand pounds, he shall not be entitled to costs, and shall be liable to be con- demned in costs, unless the judge of the High Court of Admiralty or of a superior court before lohom the cause is tried or heard shall certify that it icas a proper Admiralty cause to be tried in 200 APPENDIX, Powers, etc., of judges and resjistrars. Power to judge of county court to summon nautical assessors to his assist- ance. Decrees in county courts in Admiralty- causes to have same force as those in civil causes. Admiralty causes to be heard at usual courts. Appoint- ment of assessors in county court. Attendance of asses- sors. the High Court of Admiralty of England or in a superior court {p. 64). 10. In an Admiralty cause in a county court the cause shall be heard and determined in like manner as ordinary civil causes are now heard and determined in county courts ; save and except that in any Adnnralty cause of salvage, towage, or collision the county court judge shall, if he think fit, or on the request of either party to such cause, be assisted by two nautical assessors in the same way as the judge of the High Court of Admiralty is now assisted by nautical assessors (p. 69). 11. In any such Admiralty cause as last aforesaid it shall be lawful for the judge of the county court, if he think fit, and he shall, upon request of either party, summon to his assistance in such manner as general orders shall direct two nautical assessors, and such nautical assessors shall attend and assist accordingly (p. 69). 12. The decree of the county court in an Admiralty cause shall be enforced against the person or persons summoned as the defendant or defendants in the same manner as the decrees of the said court are enforced in ordinary civil causes, save and except as in this Act otherwise provided (p. 74). 13. The judge of every county court having Admiralty jurisdiction shall hear and determine Admiralty causes at the usual courts held within his jurisdiction, or at special courts to be held by him, and which he is hereby required to hold as soon as may be after he shall have had notice of an Admiralty cause having arisen within the jurisdiction of his court (p. 75). 14. The registrar of each county court having Admiralty jurisdiction shall from time to time frame a list, to be approved by the judge of the High Court of Admiralty before whom the same shall be laid by the county court judge, and without whose approval it shall have no validity, of assessors, of per- sons of nautical skill and exjierience residing or having places of business within the district of the county court, to act as assessors in that court, and shall cause the list to be published in the London Gazette (p. 76). 15. Every person named in the list of assessors so framed and approved shall attend the county court under such circum- stances, and in such rotation, and subject to such regulations, and shall receive such fees for his attendance, as General Orders shall direct, and for every wilful non-attendance shall be liable. C. C. AD. JUR. ACT, 18G8. 201 at the discretion of the court, to a penalty not exceeding five pounds (j>. 7G). 16. Every assessor named in such list shall hold his office Removal of until a new list of assessors shall have been framed and approved as aforesaid, or until he shall resign his appointment {p. 7G). 17. The registrars of the county courts shall be remune- ilemunem- rated for their duties in Admiralty causes by receiving for Jg^JLtrars. their own use such fees as General Orders shall direct (p. 78). 18. A scale of costs and charges in Admiralty causes in the Scale of county courts shall be prescribed by General Orders {p. 78). 19. The registrar of a county court shall have power to Power to administer oaths in relation to any Admiralty cause in a county J^^admin- court ; and any person who shall wilfully depose or affirm ister oaths falsely before the registrar in any Admiralty cause shall be ^J!|JjgU^g_ deemed to be guilty of perjury, and shall be liable to all the pains and penalties attaching to wilful and corrupt perjury (p. 78). 20. Evidence taken in any Admiralty cause before the Evidence registrar of a county court, as the judge of a county court or ^l^'^^^.^^. General Orders shall direct, shall be received as evidence in receivable any other county court, saving all just exceptions; and the i" Admi- registrar of any county court shall, for the purpose of the ^^^^^^^.^ examination of any witnesses within the district of that court, have all and the like powers and authorities of an examiner of the High Court of Admiralty of England, and evidence taken by him in that capacity shall be received as evidence in the High Court of Admiralty of England, saving all just exceptions (p. 79). 21. Proceedings in an Admiralty cause shall be commenced — (1) In the county court having Admiralty jurisdiction within As to pro- the district of which the vessel or property to which ceedings m ■^ -^ „ , county the cause relates is at the commencement of the pro- court for ceedings : commence- (2) If the foregoing rule be not applicable, then in the ^^^^^^ county court having Admiralty jurisdiction in the district of which the owner of the vessel or property to which the cause relates, or his agent in England, resides, or if such owner or agent does not reside within any such district, then in the county court having Admiralty jurisdiction the district whereof is nearest . to the place where such owner or agent resides : (3) If for any reason the last foregoing rule is not applicable 202 APPENDIX. Limitation of arrest. Power to issue pro- Registra- tion of or cannot be acted on, then in sucli county court having Admiralty jurisdiction as General Orders direct : (4) In any case in the county court or one of the county courts having Admiralty jurisdiction in which the parties by a memorandum, signed by them or by their attorneys or agents, agree shall have jurisdiction in the cause Qj. 80). 22. In an Admiralty cause in a county court if evidence be given to the satisfaction of the judge, or in his absence the registrar of the court, that it is probable that the vessel or property to which the cause relates will be removed out of the jurisdiction of the court before the plaintiff's claim is satisfied, it shall be lawful for the said judge, or in his absence for the registrar, to issue a warrant for the arrest and detention of the said vessel or property, unless or until bail to the amount of the claim made in such cause, and to the reasonable costs of the plaintiff in such cause, be entered into and perfected, according to General Orders, by or on behalf of the owner of the vessel or property or his agent, or other the defendant in such cause ; and, except as in this section expressly provided, there shall be no arrest or detention of a vessel or property in an Admiralty cause in a county court otherwise than in execution (p. 84). 23. For the execution of any decree or order of a county court in an Admiralty cause the court may order, and the registrar on such order may seal and issue, and any officer of any county court may execute, process according to General Orders ; provided that where under such process a vessel or property would or might be sold, then, if the owner of the vessel or property desires that the sale should be conducted in the High Court of Admiralty instead of in the county court, he shall be entitled, on security for costs being first given, and subject and according to such other provisions as General Orders direct, to obtain an order of the county court for transfer of the proceedings for sale, with or without (as the judge of the county court thinks fit) the transfer of the subsequent j)ro- ceedings in the cause, to the High Court of Admiralty, which court shall have jurisdiction and all powers and authorities relating thereto accordingly (^. 90). 24. Such decrees and orders of county courts in Admiralty causes as General Orders shall direct shall be registered with C. C. AD. JUR. ACT, 1868. 208 the registrar of county court judgments in London in such decrees and manner as General Orders shall direct (jp. 92). orders. 25. The Court of Passage of the Borough of Liverpool shall, Concurrent upon an Order in Council being made which shall appoint the jurisdiction county court of Lancashire holden at Liverpool to have Court of Admiralty jurisdiction, have the like jurisdiction, powers, and Passage, authorities as by that order are conferred on the said county court ; but nothing herein shall be deemed to enlarge the area over which the jurisdiction of the Court of Passage extends, or to alter the rules and regulations for holding the said court, or to take away or restrict any jurisdiction, power, or authority already vested in that court ; and fees received in that court under this Act shall be dealt with as fees received in that court under its ordinary jurisdiction (j?. 94). 26. An appeal maybe made to the High Court of Admiralty Appeal to of England from a final decree or order of a county court in ^^""."f. , an Admiralty cause, and, by permission of the judge of the county court, from any interlocutory decree or order therein, on security for costs being first given, and subject to such other provisions as General Orders shall direct (p. 97). 27. No appeal shall be allowed unless the instrument of Time for appeal is lodged in the registry of the High Court of Admiralty "Ppe-^'- within ten days from the date of the decree or order appealed from, but the judge of the High Court of Admiralty of England may, on sufficient cause being shown to his satisfaction for such omission, allow an appeal to be prosecuted, notwith- standing that the instrument of appeal has not been lodged within that time (j>. 104). 28. No appeal shall be allowed if, before the decree or order Agreement is made, the parties shall have agreed by a memorandum 1° ^^^ signed by them, or by their attorneys or agents, that the decree or order shall be iinal ; and any such agreement need not be stamped, except in respect of any fee imposed by General Orders (^9. 106). 29. There shall he no appeal from a decree or order of the As to High Court of Admiralty of England made on appeal from a ^^^J'^^J°^ county court, except hy express permission of the judge of the in Council. High Court of Admiralty (p. 106). 30. On an appeal under this Act, when the appellant is Costs of unsuccessful, he shall pay the costs of the appeal, unless the ^PPe-il- appellate court shall otherwise direct (j), 107). 204 APPENDIX. I Xo appeal unless amount exceeds £50. Conduct of sale, etc., in Court of Admiralty. In certain cases causes may be trans- ferred by county court and appeals made to Court of Admiralty of the Cinque Ports. County Court Acts applied to this. Practice, etc., to be regulated by general orders. Authority lor making general orders. 31. No api^eal shall be allowed unless tte amount decreed or ordered to be due exceeds tbe sum of fifty pounds (p. 108). 32. On an appeal under this Act, the judge of the High Court of Admiralty, if it appears to him expedient that any sale decreed or ordered to be made of the vessel or property to which the cause relates should be conducted in the High Court of Admiralty instead of in the county court from which the appeal is brought, may direct the transfer of the proceed- ings for sale, with or without the transfer of the subsequent proceedings in the cause, to the High Court of Admiralty, which court shall have jurisdiction, and all powers and autho- rities relating thereto accordingly Q). 110). 33. In all cases which shall arise within the jurisdiction of the Cinque Ports as defined by the Act first and second George the Fourth, chapter seventy-six, section eighteen, causes may be transferred by the county court and appeals made to the court of Admiralty of the Cinque Ports in lieu of the High Court of Admiralty ; and in the case of appeals the instrument of appeal shall be lodged in the registry of the Cinque Ports, and the same discretion vested in the judge official and commissary of the said Cinque Ports Court as is by this Act vested in the judge of the High Court of Admiralty (p. 111). _ 34. This Act shall be read as one Act with so much of the County Courts Act, 1846, and the Acts amending or extending the same, as is now in force (pj». 1, 70, 113). 35. General Orders shall be from time to time made under this Act for the purposes in this Act directed, and for regu- lating the practice and procedure of the Admiralty jurisdiction of the county courts, the forms of processes and proceedings therein or issuing therefrom, and the days and j)laces of sittings for Admiralty causes, the duties of the judges and officers thereof, and the fees to be taken therein (p. 115). 36. General Orders under this Act shall be made by the Lord Chancellor, with the advice and assistance of the judge of the High Court of Admiralty of England, and, as far as they relate to fees, or to the receipt and expenditure of and accounting for money, with the approval of the commissioners of her Majesty's treasury (p. 115). COUNTY COURTS ADMIRALTY JURISDICTION AMENDMENT ACT, 1869. 32 & 33 Vict. Chap. 51. An Act to amend the County Courts (Admiralty Jurisdiction) Act, 1868, and to give Jurisdiction in certain Maritime Causes. [2d August, 1869.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as The County Courts Admiralty Jurisdiction Amendment Act, 1869, and shall be read and interpreted as one Act with the County Courts Admiralty Jurisdiction Act, 1868 (pp. 1, 72, 81). 2. Any county court appointed or to be appointed to have Admiralty jurisdiction shall have jurisdiction, and all powers and authorities relating thereto, to try and determine the following causes (pp. 5, 39) : (1) As to any claim arising out of any agreement made in relation to the use or hire of any ship, or in relation to the carriage of goods in any ship, and also as to any claim in tort in respect of goods carried in any ship, provided the amount claimed does not exceed three hundred pounds (p. 39) : (2) As to any cause in respect of any such claim or claims as aforesaid, but in which the amount claimed is beyond the amount limited as above mentioned, when the parties agree, by a memorandum signed by them or by their attorneys or agents, that any county court having Admiralty jurisdiction, and specified in the memorandum, shall have jurisdiction (2). 57). 3. The jurisdiction conferred by this Act and by the County Short title. Extension of jurisdio tion over ships anil goods. If parties agree, causes in respect of claims of higher amount may be determined by county court. Proceed- 206 APPENDIX. ings in rem or in per- sonam. Amend- ment of sec. 3 of 31 & 32 Vict. c. 71. As to a.\>- jiointment of mercan- tile as- sessors. Power of assessor of Court of Passage to make general rules and orders. Commence- ment of Act. Courts Admiralty Jurisdiction Act, 1868, may be exercised either by proceedings in rem or by proceedings in personam (p. 81). 4. The third section of the County Courts Admiralty Juris- diction Act, 1868, shall extend and apply to all claims for damage to ships, whether by collision or otherwise, when the amount claimed does not exceed three hundred pounds (p. 42). 5. In any Admiralty or maritime cause the judge may, if he think fit, or on the request of either party, be assisted by two mercantile assessors; and all the provisions of the County Courts Admiralty Jurisdiction Act, 1868, with reference to nautical assessors, shall apply to the appointment, approval, summoning, and remuneration of such mercantile assessors (pp. 69, 72). 6. The assessor of the Court of Passage of the borough of Liverpool shall have power from time to time to make general rules and orders for regulating the practice and procedure of the Admiralty and maritime jurisdiction in the said court, and for other purposes mentioned in section thirty-five of the County Courts Admiralty Jurisdiction Act, 1868 ; and any general rules and orders already made or hereafter to be made by the said assessor for any of the purposes aforesaid shall be of full force and effect as if the same had been made under this or the aforesaid Act {p. 94). 7. This Act shall come into operation on the first day of September one thousand eight hundred and sixty-nine. I ORDERS IN COUNCIL GIVING COUNTY COURTS ADMIRALTY JURISDICTION. The first Order in Council, dated December 9, 1868, and whicli was to come into force on January 31, 1869, never came into operation, being superseded by the following one, and is not set out. OiiDER IN Council, Jan. 14, 1869. Whereas by the County Courts Admiralty Jurisdiction Act, 1868, it is, among other things, enacted, that if at any time after the passing of that Act it appears to her Majesty in Council, on the representation of the Lord Chancellor, expe- dient that any county court should have Admiralty jurisdiction, it shall be lawful for her Majesty, by Order in Council, to appoint that court to have Admiralty jurisdiction accordingly, and to assign to that court as its district for Admiralty pur- poses any part or parts of any one or more district or districts of county courts : And, further, that any such Order may be from time to time varied as seems expedient : And whereas her Majesty was pleased by an Order in Council of the 9th day of December, 1868, to order that certain county courts should have Admiralty jurisdiction : And whereas a representation has been made by the Lord Chancellor, stating that it is expedient that the said Order should be varied, and that the county courts mentioned in the first column of the schedule hereto annexed, marked A, should have Admiralty jurisdiction, and that such courts should have assigned to them as their respective districts for Admiralty purposes the districts of the county courts, the names of which are printed in the second column of the said schedule, opposite to the names of the said courts respectively : Now, therefore, her Majesty having taken the said repre- sentation into consideration is pleased, by and with the advice of her Privy Council, to order and appoint, and it is hereby ordered and appointed, that from and after the 31st day of 208 APPENDIX. January, 1869, tlie county courts mentioned in the first column of the schedule hereto annexed, marked A, shall have Admi- ralty jurisdiction ; and her Majesty is further jjleased, by and with the advice aforesaid, to assign to the courts hereby ap- pointed to have Admiralty jurisdiction, as their respective districts for Admiralty purposes the districts of the county courts, the names of which are printed in the second column of the said schedule, opposite to the names of the said courts respectively. And her Majesty is further pleased, by and with the advice aforesaid, to order that the said Order of the 9th day of December last shall be varied or rescinded as far as it varies from this Order. SCHEDULE A. Name of (he court appointed to have Admii-alty jurisdiction. The districts of county courts which are to be for Admiralty purposes the district of tlie court, the name of which is printed in the first column. The County Court of Nor- thumberland holden at New- castle-upon-Tyne. The County Court of Nor- thumberland holdca at Ber- wick, Belford, Alnwick, Mor- peth, North Shields, and New- castle -on- Tyne ; and the County Court of Durham holden at Gateshead and South Shields. The County Court of Dur- ham holden at Sunderland. The County Court of Dur- ham holden at Sunderland and Seaham. The County Court of Dur- ham holden at Stockton and Middlesborough. County Court of Durham held at Hartlepool, separate Admiralty Jurisdiction (Order in Council, March 31, 1870). The County Court of Dur- ham holden at Hartlepool, Stockton,and Middlesborough; the County Court of Yorkshire holden at Stokesby and Whitby. ORDERS IN COUNCIL. 209 Niime of the court appointed to have Admiralty jurisdiction. The districts of county courts which are to be for Admiralty purposes the district of the court, the name of which is printed in the Urst column. The County Court of York holdcn at Hull. The County Court of York- shire holden at Scarborough, Bridlington, Beverley, Hedon, Hull, Howden, and Goole. The County Court of Lin- colnshire holden at Great Grimsby. The County Court of Lin- colnshire holden at Brigg, Great Grimsby, Louth, and Barton-on-Humber. The County Court of Lin- colnshire holden at Boston. The County Court of Lin- colnshire holden at Spilsby, Boston, Spalding, and Hol- beach. The County Court of Nor- folk holden at King's Lynn. The County Court of Cam- bridgeshire holden at Wis- bech ; the County Court of Norfolk holden at King's Lynix and Little Walsingham. The County Court of Nor- folk holden at Yarmouth. The County Court of Suffolk holden at Lowestoft. The County Court of Nor- folk holden at Holt, North Walsham, Great Yarmouth, and Norwich. The County Court of Suffolk holden at Beccles, Lowestoft, and Halesworth. The County Court of Suffolk holden at Ipswich. The County Court of Suffolk holden at Framlingham, Wood- bridge, and Ipswich ; the County Court of Essex holden at Harwich. 210 APPENDIX. Xame of the court appointed to have Admiralty jurisdiction. The districts of county courts which are to be for Admiralty purposes the district of the court, the name of which is printed in the first column. The County Court of Essex holden at Colchester. The County Court of Essex holden at Colchester and Maldon. The City of London Court. (Order in Council, May 16, 1871; jurisdiction given to Whitechapel County Court ; but that Order rescinded June 29, 1871. By Order in Council, January 15, 1878, County Court of Essex holden at Rochford to be holden as well at Southend, but by Order in Council, February 7, 1888, to cease to be held at Kochford, and to be held at Southend.) The County Court of Essex holden at Rochford, Brent- wood, and Eomford ; the County Court of Kent holden at Dartford, Gravesend, Green- wich, and Woolwich ; the Southwark County Court of Surrey; the Bow County Court of Middlesex; the White- chapel County Court of Mid- dlesex, and the City of London Court. The County Court of Kent holden at Rochester. The County Court of Kent holden at Rochester, Sheer- ness, Sittingbourne, and Faver- sham. The County Court of Kent holden at Ramsgate. The County Court of Kent holden at Canterbury, Mar- gate, Ramsgate, Sandwich, and Deal. The County Court of Kent holden at Dover. The County Court of Kent holden at Dover, Folkestone, Hythe, and Romney ; the County Court of Sussex holden at Rye. The County Court of Sussex holden at Brighton. The County Court of Sussex holden at Hastings, Lewes, Brighton, Worthing, Arundel, and Chichester. ORDERS IN COUNCIL. 211 Name of the court appoinfed to have Admiralty jurisdictiou. The districts of county courts which are to be for Admiralty purjOTses the district of the court, the name of which is printed in the first column. The County Court of Hamp- shire holden at Portsmouth. The County Court of Hamp- shire holden at Portsmouth and Newport, Isle of Wight. The County Court of Hamp- shire holden at Southampton. The County Court of Hamp- shire holden at Southam2)ton and Lymington. The County Court of Dorset- shire holden at Poole. The County Court of Hamp- shire holden at Christchurch ; the County Court of Dorset- shire holden at Poole and Wareham. The County Court of Dorset- shire holden at Dorchester. The County Court of Dorset- shire holden at Dorchester, Weymouth, and Bridport. The County Court of Devon- shire holden at Exeter. The County Court of Devon- shire holden at Axminster, Honiton, Exeter, and Newton Abbot. The County Court of Devon- shire holden at Totnes and Churston Ferrers. The County Court of Devon- shire holden at Totnes, Chur- ston Ferrers, and Kingsbridge. The County Court of Devon- shire holden at East Stone- house. (And Plymouth, Order in Council, June 26, 1893, see p. 3.) The County Court of Devon- shire holden at East Stone- house and Tavistock ; the County Court of Cornwall holden at Liskeard. The County Court of Corn- wall holden at Truro. The County Court of Bodmin holden at Bodmin, St. Austell, Truro, Falmouth, Helston, Penzance, Eedruth, St. Columb Major, and Camelford, 212 APPENDIX. Name of the court appointed to have Admiralty jurisdiction. The districts of county courts which are to be for Admiralty purposes, the district of the court, the name of which is printed in the first column. The County Court of Devoa- sliire holden at Barnstaple. The County Court of Devon- shire holden at Holsworthy, Bideford, and Barnstaple. The County Court of Somer- setshire holden at Bridgewater. The County Court of Somer- setshire holden at Williton, Bridgewater, and Weston- super-Mare. The County Court of Glou- cestershire holden at Bristol. The County Court of Glou- cestershire holden at Glou- cester. The County Court of Glou- cestershire holden at Bristol and Thornbury. The County Court of Glou- cestershire holden at Dursley, Gloucester, and Newnham. The County Court of Mon- mouthshire holden at Newport. The County Court of Gla- morganshire holden at Cardiflf- The County Court of Mon- mouthshire holden at Chep- stow and Newport. The County Court of Gla- morgan holden at Cardiff. Bridgend, and Cowbridge. The County Court of Gla- morganshire holden at Swan- sea. The County Court of Gla- morgan holden at Neath and Swansea; the County Court of Carmarthenshire holdeu at Llanelly. ORDERS IN COUNCIL. 213 Name of the court appointed to have Admiralty jurisdiction. The districts of county courts which are to be for Admiralty purjioses the district of the court, the name of which is printed in the first column. The County Court of Car- marthensliire holden at Car- martlien. (The County Court of Peni- hrokeshire holden at Pembroke Dock was substituted for Pem- broke, Order in Council, April 22, 1872, and has Admiralty jurisdic- tion over the districts of Narberth, Haverfordwest, and Pembroke Dock conferred on it; see Order in Council, May 16, 1878, 2^ost. The County Court of Cardigan- shire holden at Aberystwith has Admiralty jurisdiction conferred on it over the district of Aberay- ron; see Order in Council, May 28, 1894, post.) The County Court of Car- marthenshire holden at Car- marthen and Newcastle-in- Emlyn ; the County Court of PemhroJceshire holden at Nar- berth, Pembroke, and Haverford- west ; the County Court of Cardiganshire holden at Car- digan and Aherayron. The County Court of Car- narvonshire holden at Bangor. (The County Court of Cardigan- shire holden at Aberystwith has Admiralty jurisdiction conferred on it over the district of Aberyst- with and Aberayrou, and of the County Court of Merionethshire holden at Dolgelly, and of the County Court of Montgomeryshire holden at Machynlleth ; see Order in Council, May 28, 1891.) The County Court of Car- diganshire holden at Aberyst- with ; the County Court of Montgomerysliire holden at Machynlleth ; the County Court of Merionethshire holden at Dol- gelly ; the County Court of Carnarvonshire holden at Port- madoc, Pwllheli, Carnarvon, Bangor, and Conway ; the County Court of Anglesea holden at Llangefni and Holy- head ; the County Court of Flintshire holden at St. Asaph, Khyl, Holywell, and Mold. 2U APPENDIX. Name of the court appointed to have Admiralty jurisdiction. The districts of county courts which are to be for Admiralty purposes the district of the court, the name of which is printed in the first column. The County Court of Lan- cashire holden at Liverpool. The County Court of Che- shire hoklen at Chester, Birken- head, and Runcorn; the County Court of Lancashire holden at Warrington, St. Helens, Liver- pool, and Ormskirk. The County Court of Lan- cashire holden at Preston. (The County Court of Lan- cashire holden at Ulverston was also to be held at Barrow-in- Furness (Order in Council, June 27, 1873), and these two jointly have separate Admiralty jurisdic- tion over their own districts con- ferred by Order in Council, Janu- ary 29, 1882, post.) The County Court of Lan- cashire holden at Preston, Kirkham, Poulton-le-Fylde, Garstang, Lancaster, and VI- verstone. The County Court of Cum- berland holden at Whitehaven. The County Court of Cum- berland holden at Whitehaven, Cockermouth, Wigton, and Carlisle. Oeder in Council, March 31, 1870. County Court of Durham holden at Hartlepool. The County Court of Dur- ham holden at Hartlepool. Order in Council, May 16, 1871. Wliitechapel County Court of Middlesex. (Rescinded, and jurisdiction over these places restored to the City of London Court by Order in Council, June 29, 1871.) The County Court of Essex holden at Bochford, Brentwood, and Bomford ; County Court of Kent holden at Dartford, Gravesend, Greenwich, and Woolwich ; Southicarh County Court of Surrey; Bow and Whitechapel County Courts of Middlesex. ORDERS IN COUNCIL. 215 Order in Council, May 16, 1878. Name of the court appointed to have Admii-iilty jurisdiction. The districts of couuty courts which are to be for Admiralty purposes the district of th(! court, the name of wliich is printed in the first column. County Couit of Pembroke- shire holden at Pembroke Dock. County Court of Pembroke- sliire holden at Narberth, Haverfordwest, and Pembroke Dock. Order in Council, June 29, 1882. County Court of Lancashire holden at Ulverston and Bar- row-in-Furness. County Court of Lancashire holden at Ulverstone and Bar- row-in-Furness. Order in Council, December 12, 1893. The County Court of Lan- cashire holden at Manchester. (By the Manchester Ship Canal Act, 1885 (48 & 49 Vict. c. 188, sec. 3), these limits are the canal and navigable waters of the Irwell and Mersey, between Hunts Bank in Manchester and the limits of the port of Liverpool at War- rington.) County Court of Lancashire hol'len at Manchester ; County Court of Lancashire holden at Salford, and such parts of the districts of any other county courts as are comprised within the limits for the time being of the harbour and port of Manchester as constituted under the Manchester Ship Canal Act, 1885, or the Cus- toms Consolidation Act, 1876, or other lawful authority. Order in Council, May 28, 1894. The County Court of Car- diganshire holden at Aberyst- with. The County Court of Car- diganshire holden at Aberyst- with and Abcrayron ; the County Court of Merioneth- shire holden at Dolgelly ; and the County Court of Mont- gomeryshire holden at Ma- chynlleth. 216 APPENDIX. Order in Council, March 31, 1870. It is hereby ordered and appointed, tliat from and after the nth of April, 1870, the district of the County Court of Durham holden at Hartlepool shall for Admiralty purposes cease to form part of the district of the County Court of Durham holden at Stockton and Middlesborough ; and that the said County Court of Durham holden at Hartlepool shall have Admiralty jurisdic- tion, and that for its district for Admiralty purposes the district of the said court shall be and is hereby assigned to the said Court. By an Order in Council of May 16, 1871, the Admiralty Jurisdiction of the City of London Court was transferred to the Whitechapel County Court, but owing to the difficulties arising from the court not being able to exercise jurisdiction in the City of London (see C. C. Ad. Jur. Act, 18G8, sec. 2 ante, and C. C. Act, 1888, sec. 185 post), this Order in Council was rescinded and the jurisdiction in Admiralty restored to the City of London Court by Order in Council of June 29, 1871. In these circumstances the Orders in Council are not set out. Order in Council, May 16, 1878. It is hereby ordered and appointed that from and after the 1st of July, 1878, the districts of the County Courts of Pembrokeshire holden at Narberth, Haverfordwest, and Pembroke Dock, shall for Admiralty purposes cease to form part of the district of the County Court of Carmarthenshire holden at Carmarthen ; and that the Comity Court of Pembrokeshire holden at Pem- broke Dock shall have Admiralty jurisdiction, and that for its district for Admiralty purposes the districts of the Coimty Courts of Pembrokeshire holden at Narborth, Haverfordwest, and Pembroke Dock, shall be and are hereby assigned to the County Court of Pembrokeshire holden at Pembroke Dock. Order in Council, January 29, 1882. It is hereby ordered and appointed that from and after the Ist of August, 1882, the district of the County Court of Lancashire holden at Ulverstone and Barrow-in-Furness shall for Admiralty purposes cease to form part of the district of the County Court of Lancashire holden at Preston ; and that the ORDERS IN COUNCIL. 217 County Court of Lancashire liolden at Ulverstoue and Barrow- in-Furness shall have Admiralty jurisdiction, and that its district for Admiralty purposes shall be the district of the said County Court of Lancashire holden at Ulvcrstone and Barrow-in- Furness. Order in Council, December 12, 1893. It is hereby ordered that from and after the 1st of January, 1894, the County Court of Lancashire holden at Manchester shall have Admiralty jurisdiction ; and her Majesty is further pleased, by and with the advice aforesaid, to assign to the court hereby appointed to have Admiralty jurisdiction as the districts thereof for Admiralty purposes the districts and parts of districts following, that is to say : the district of the said Coimty Court of Lancashire holden at Manchester ; the district of the County Court of Lancashire holden at Salford, and such parts of the districts of any other county courts as are comprised within the limits for the time being of the harbour and port of Manchester aforesaid, as constituted under the said Manchester Ship Canal Act, 1885, or the Customs Consolidation Act, 1876, or other lawful authority. Okdeh in Council, May 28, 1894. It is hereby ordered and appointed that from and after the 1st of September, 1894, the County Court of Cardiganshire holden at Aberystwith shall have Admiralty jurisdiction ; and her Majesty is further pleased, by and with the advice aforesaid, to assign to the court hereby appointed to have Admiralty jurisdiction as the district thereof for Admiralty purposes, the district and parts of districts following, that is to say : the districts of the said County Court of Cardiganshire holden at Aberystwith and Aberayon ; the district of the County Court of Merionethshire holden at Dolgelly ; and the district of the County Court of Montgomeryshire holden at Machynlleth. 218 APPENDIX. COUNTY COURTS ACT, 1888. 51 & 52 Vict. Chap. 43. AEEANGEMENT OF SECTIONS. Peeliminaey. Section. ■■: 1. Short title. t1 2. Commencemeut of Act. Part I. Courts. 3. Existing courts continued. 4. Power to alter districts. 5. Courts to have all jurisdiction of county courts, and to be courts of record. 6. Lords of manors, &c., may surrender courts. 7. On petition to Her Majesty the jurisdiction of court of local jurisdiction may be excluded from that of the county court in concurrent causes. Part II. Judges and Officers. 8. Appointment and qualification of judges. 9. Jurisdiction of judge within or without his districts. 10. Times of sittings. 11. Closing of court for one month. 12. Two judges of one district. 13. Power to re-distribute districts among judges. 14. Judges not to practise. 15. Judges removable. IG. Judges may be named for assizes. 17. Judges in commission of the peace. 18. Appointment of deputy judge. c. c. ACT, 1888. 219 19. Judges may act for one another; substitute for deputy judge. 20. Deputy judge not to practise in district. 21. Deputy judge to act during vacancy. Eemuneration. 22. Court where judge can sue and be sued. 23. Salaries and allowances of judges. 24. Pension of judges. 25. Appointment of registrars. 26. Duties of registrars. 27. Eemoval of registrars. 28. Minutes of proceedings to be kept. 29. Appointment of joint registrars. 30. On death of a joint registrar, survivor to be sole registrar. 31. Deputy registrar. 32. Deputy registrar provisionally appointed. 33. Appointment of bailiffs. 34. Bailiffs during vacancy of high bailiff. 35. Duties of high bailiffs, &c. 36. On death, &c., of high bailiff, judge to appoint provisionally a deputy. 37. When registrar shall perform duties of high bailiff. Re- muneration. 38. Vacancies in office of treasurer and examination of accounts of officers. 39. Treasurers' superannuation. 40. Registrar and high bailiffs to give security. 41. Officers not to act as solicitors in the court. 42. If officer is plaintiff in his own court, defendant may remove action to an adjoining district. 43. Where officer of county court may be sued. 44. Provision for salaries. 45. Salaries of registrars. 46. High bailiffs' salaries and fees. 47. Remuneration of officers. 48. Penalty for assaulting bailiffs, or rescuing goods taken in execution. 49. Bailiffs made answerable for escapes and neglect to levy execution. 50. Remedies against and penalties on bailiffs and other officers for misconduct. 51. Penalty on officers taking fees besides those allowed. 62. No officer shall be deemed a trespasser by reason of irregularity. 220 APPENDIX, 53. Limitation of actions for proceedings in execution of this Act. 54. No action to be brought against bailiff, &c., acting under order of the court without notice ; and registrar to be made defendant in the action. 55. Protection to officers. Part III. Jurisdiction and Law. 56. Ordinary jurisdiction of the court. 57. Where claim reduced by set-off to £50 court to have juris- diction. 58. Cases of partnership and intestacy. 59. Ejectment where annual value does not exceed £50. 60. Title where neither value nor rent exceeds £50. 61. Jurisdiction by consent in cases of title. 62. In certain cases defendant may object to action being tried in the court. 63. No action on judgment. 64. Jurisdiction by agreement. 65. Where judge of High Court may order action of contract to be tried in a County Court. 66. Actions of tort in High Court may be remitted to County Court. 67. Jurisdiction in equity. 68. Transfer to Chancery Division of action exceeding juris- diction. 69. Transfer to county courts of equitable actions or matters. 70. Trustees may pay trust moneys or transfer stock and securities into the court. 71. Moneys paid into court in proceedings may be invested in a post-office savings bank. 72. Persons qualified to j)ractise before courts. Part IV. Procedure and Trial. 73. Actions by plaint. 74. Where action may be commenced. 75. In what courts proceedings in equity shall be taken. 76. Service of process out of district. C. c. ACT, 188S. 221 77. Service of summons or execution of warrant within 500 yards of district. 78. Proof of service of summonses by a bailiff. 79. Proceedings on bearing the plaint. 80. No evidence to be given that is not in summons. 81. Demands not to be divided for the purpose of bringing two or more actions. 82. Notice to be given to the registrar of special defences, who shall communicate the same to the plaintiff. 83. Before whom affidavits may be sworn. 84. Districts of the courts in the metropolis to be treated as one district. 85. Power to judge to change place of trial. 86. Default summons and notice of defence. 87. Amendment of proceedings. 88. Proceedings if plaintiff does not appear or prove his case. 89. Costs of defendant where i)laintiff does not appear. 90. Proceedings before registrar where defendant does not appear. 91. Trial in absence of defendant. 92. Where defendant appears and admits the claim. 93. Judgments how far final. 94. Bankruptcy not to cause action to abate, if trustee elect to continue it. 95. Executors may sue and be sued. 96. Minors may sue for wages. 97. One of several persons liable may be sued. 98. Confession of debts or parts of debts, &c., and judgment thereupon. 99. Agreement as to the amount of debt, &c., and conditions of payment. 100. Judge alone to determine all questions, unless a jury be summoned. 101. Trial with jury when parties require it. 102. Who shall be jurors, and their number. 103. Appointment of assessors. 104. Actions may be settled by arbitration. 105. Where judgment does not exceed £20 court may order payment by instalments. In other cases consent of plaintiffs necessary. 106. Judge may grant time. 107. Defendant may pay money into court. Notice of such payment to be given to plaintiff. 222 APPENDIX. 108. How securities to be given and enforced. 109. Where security is required to be given, a deposit of money may be made in lieu thereof. 110. Service of summonses to witnesses and others. 111. Penalty on witnesses neglecting summons. 112. Judge may issue warrant for bringing up a prisoner to give evidence. 113. Costs to abide the event. 114. Court may award costs where action or matter is struck out for want of jurisdiction. 115. No second action for same cause. Treble costs. ■ 116. Costs when not recoverable in High Court. 117. Costs of action brought elsewhere than in county court. 118. Costs of solicitor to be taxed by registrar. 119. Costs on higher scale. Part Y. Appeals, (i'c. 120. Parties aggrieved may appeal by notice of motion. 121. Procedure on appeal. 122. Jurisdiction of High Court. 123. Parties may agree not to ajipeal. 124. No appeal allowed except as in this Act mentioned. 125. Assessors on appeal. 126. Where action may be removed on security given. 127. Judge of High Court may hear ai^plications for prohibition. 128. Prohibition finally disposed of by order. 129. Order to show cause as to certiorari or prohibition a stay of proceedings if High Court so direct. 130. Costs of certiorari or prohibition if not sent to registrar. 131. Order in lieu of mandamus. 132. No judge to grant writ or order once refused. Pabt VI. JReplevin ; Becovery of Tenements. 133. Actions of replevin may be brought by plaint. 134. Registrar to grant replevins. 135. Conditions of security to be given in cases of replevins commenced in Hifjh Court. C. c. ACT, 1888. 223 136. Conditions of security to be given when replevin brought in county court. 137. Eeplevins shall at instance of defendant be removed into High Court by certiorari in certain cases. 138. Possession of small tenements may be recovered in county courts by landlords where term has expired or been determined by notice. 139. Possession of small tenements may be recovered in the court by landlords for non-payment of rent. 140. Sub-tenant served with summons to recover possession must give notice to his immediate landlord, who may come in and defend. 141. In plaints to recover possession of premises, how sum- monses may be served. 142. Warrants to high bailiffs sufficient to justify them for entering on premises. 143. Such warrants to be in force for three months from the day named for delivering possession. 144. Judges, registrars, bailiffs, or other officers not liable to actions on account of proceedings taken. 145. Where landlord has a lawful title, he shall not be deemed a trespasser by reason of irregularity. Part VII. Execution ; Commitment. 146. Court may award execution against goods. 147. What goods may be taken in execution. 148. Securities seized to be held by high bailiff. 149. Execution after default in instalment may issue for whole sum. 150. Cross judgments. 151. Judgment may be removed into the High Court if there are no goods to be taken under it. 152. Priority of executions issuing out of High Court and county court. 153. Power to judge to suspend execution or order discharge in certain cases. 154. Regulating the sale of goods taken in execution. 155. Execution to be superseded on payment of debt and costs. 156. Claimant of goods taken in execution must deposit their values or pay costs of keeping possession, otherwise goods shall be sold. 224 APPENDIX. 157. High bailiff may interj)lead where claims as to goods taken in execution are made. 158. How execution may be bad ont of the jurisdiction of the court. 159. Judge may authorise bailiffs to act as brokers. 160. When goods seized under process of the court, landlord may claim certain rent in arrear. 161. Mode of issuing and executing orders of commitment. 162 Power of committal for contempt. 163. To what prisons committals may be made. Part VIII. Rides; Fees; Fines; Unclaimed Money in Court. IQA:. Kules, &c., and forms of proceedings and scale of costs to be framed by judges appointed by Lord Chancellor. 165. Order as to fees. 166. Fees; how payable, and where to be exhibited. 167. Fines how to be enforced. 168. Penalties to bo paid to registrar and accounted to treasurer. 169. Account of fees and fines. 170. Account to Auditor-General. 171. Audit of registrar's accounts. 172. Eules as to balances. 173. Suitors' money unclaimed in six years to be forfeited. Part IX. Miscellaneous Provisions. 174. Publication of Orders in Council. 175. No privilege allowed. 176. Act not to affect rights of universities of Oxford or Cambridge. 177. Nothing to affect the courts of the wardens of the Stannaries. 178. When treasurer's clerk shall be deemed a civil servant. 179. Townhalls used for sittings. 180. Process of the court to be under seal. 181. Incidental expense. 182. No action for beer, &c., consumed on the premises to be brought. 183. Eegistry of judgments. c. c. ACT, 1888. 225 IS-t: Acknowledgments by married women under 3 & 4 W. IV. c. 74 to be received by judge. 185. City of London Court. Sufplementary. 18G. Interpretation of Act. 187. Construction of Acts referring in tliem to county courts. 1 88. Repeal of Acts in Schedule. Schedule. CHAPTEE 43. An Act to consolidate and amend the County Courts Acts. [ISth August, 1888.] Whereas it is desirable to consolidate and amend the County Courts Acts : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this present Parlia- ment assembled, and by the .authority of the same, as follows : Preliminary. 1. This Act may be cited as the County Courts Act, 1888. Short title. 2. This Act, save as in this Act otherwise expressly pro- Commence- vided, shall come into operation on the first day of January, ™^°* ° one thousand eight hundred and eighty-nine, which day is in this Act referred to as the commencement of this Act. Part I. Courts. 3. This Act shall be in force throughout all those parts of Existi Hie England in which county courts have been established ; and, courts subject to alterations made in pursuance of this Act, the county court districts existing at the commencement of this Act shall continue, and the county courts for such districts shall continue to be held at the places fixed at the commencement of this Act. 4. It shall be lawful for her Majesty by Order in Council Power to from time to time to alter the number and boundaries of the '^}}^^'. f 1 1 T T 1 ^ districts. districts and the place of holding any court, and to order the discontinuance of the holding of any court, and the consolida- tion of any two or more districts, and the division of any Q 226 APPENDIX. Courts to have all iurisdiction of county courts, and to be courts of record. 9 & 10 Vict. c. 95, Lords of manors, etc., may surrender courts. Power to exclude jurisdiction of court of local juris- diction from that of county court in concurrent causes. district, and to order by wliat name and in what towns and places a court shall be held in sucb district. Any sucb order of her Majesty in Council may declare tbat a part of any county, liberty, city, borough, or district shall be within the jurisdiction of the court held under this Act for any adjoining county or district in like manner as if such part were a part of such adjoining county or district. 5. Every court held under this Act shall have all the juris- diction and powers at any time prior to the coming into operation of the County Courts Act, 1846, belonging to any county court for the recovery of debts and demands as altered by this Act throughout the whole district for which it is held, and there shall be a judge for each district under this Act, and the court may be held simultaneoi;sly in all or any of such districts ; and every court held under this Act shall be a court of record. 6. It shall be lawful for the lord of any hundred, or of any honor, manor, or liberty having any court in right thereof in which debts or demands may be recovered, to surrender to her Majesty the right of holding such court for any such purpose (with the consent of any steward or other officer, if any, having a freehold office in such court, or upon the next vacancy in any such freehold office) ; and from and after such surrender such court shall be discontinued, and the right of holding such court shall cease, and all proceedings commenced in such court may thereafter be continued, and shall be enforced and executed as if they were commenced under the authority of this Act in a court held for the district in which the cause of action arose ; but no person shall be entitled to claim any compensation under this Act by reason of any such surrender : Provided always, that the surrender of the right of holding any such court for the recovery of debts and demands shall not be deemed to infer the surrender or loss of any other franchise incident to the lordshij) of such hundred, honor, manor, or liberty, and that the court thereof may be held for all other purposes, if any, incident thereunto, as now by law it may. 7. If the council of any city or borough, or a majority of the ratepayers of any jiarish, within the limits of which a court of local jurisdiction, other than a county court, is established, or into the limits of which city, borough, or parish the jurisdiction of such court of local jurisdiction shall extend, shall petition her Majesty in Council that the jurisdic- tion of such court of local jurisdiction may be excluded in any c. c. ACT, 18S8. 227 causes whereof tbe county coui-t has cognizance, and if notice of such petition shall be given two months before it is pre- sented by public advertisement in such city, borough, or parish, and in some newspaper therein circulated, her Majesty, by Order in Council, may declare the exclusion of the jurisdiction of such court of local jurisdiction throughout the whole or any part of the district assigned or which may hereafter be assigned to such county court, if no petition against declaring the exclusion is presented, and no caveat entered at the council office ; and if any counter-petition is j)rescnted, or any caveat entered, then her Majesty may refer such petition and counter- petition to the Judicial Committee of the Privy Council, upon Avhose report her Majesty may make such Order in Council as she shall be advised toiiching the matter of the said petitions in respect of excluding the jurisdiction of such court of local jurisdiction, and may award compensation to any persons entitled to appoint officers of such court, or to any officers thereof appointed before the j)assing of this Act, to be given by the Treasury, who are hereby empowered to pay the same. Part II. Judges and Officers. 8. The Lord Chancellor shall from time to time appoint as Appoint- many fit persons, not exceeding sixty, as are needed to be "^^nt and judges of the courts under this Act, each of whom shall be a tion of barrister-at-law of at least seven years' standing: Provided J^'^'S^s. that where the whole of a district is within the duchy of Lancaster the appointment of the judge for such district shall be made by the chancellor of the said duchy. No judge shall during his continuance in the office of judge be capable of being elected or of sitting as a member of the House of Commons. 9. A judge shall, whether within the district of any of his .lurisdic- courts or not, have jurisdiction to make any order, or exercise !'°" °^ on an ex ^xirte application any authority or jurisdiction in any within or action or proceeding pending in any of the courts of which he without his is judge, which, if the same related to an action or proceeding pending in the High Court, might be given, made, or exercised by a judge of the High Court in chambers, and, with the con- sent of both parties to an action or proceeding, to hear and listricts. 228 APPENDIX. Times of sittings. Closing of court for one month. Two judges of one district. flecide any matter at any place, either witliiu or without any such district (p. 69). 10. The judge of each district sLall attend and hold the court at each place where her Majesty shall have ordered thal> the court shall be held within the district, at such times as he shall appoint for that purpose, so that a court shall be held at every such place once at least in every month, or at such other interval as the Lord Chancellor shall in each case order ; and notice of the days on which the court will be held shall be put up in some conspicuous place in the court-house and in the office of the registrar of the court, and no other notice thereof shall be needed ; and whenever any day so appointed for holding the court shall be altered, notice of such intended alteration, and of the time when it will take effect, shall be put up in some consj)icuous place in the court-house and in the registrar's office. Where, by reason of death or imavoidable absence, a judge at the sitting of a court is not present the registrar, after exercising his powers where the defendant does not appear or admits the debt, or in his unavoidable absence the high bailiff shall adjourn the court to such day as he may deem convenient, and enter in the minute book the cause of such adjournment (p. 173). 11. No judge shall be obliged to hold any courts during the month of September in any year, unless he shall be ordered by the Lord Chancellor so to do ; and if any judge shall be desirous of holding courts in the said month of September, and of being relieved from the obligation to do so at some other period of the year, it shall be lawful for such judge, with the sanction of the Lord Chancellor, to close the coiirts upon his circuit for any periods of time of which the Lord Chancellor shall approve, not exceeding in the whole four weeks in any one year : Provided nevertheless, that the office of every court shall always be open for the receipt and payment out of money due under any order of the court, pursuant to the rules and orders in force for the time being or for any proceedings before the registrar. 12. The Lord Chancellor may from time to time direct that there shall be two judges of a district or districts, and may make such regulations as to their respective sittings, or other- wise as to the division of their duties, as he may think right, and each of the judges when acting shall have all such powers and authorities as if he had been sole judge of such district or districts. c. c. ACT, 1888. 220 13. It shall be lawful for the Lord Chancellor from time to I'ower to -time to alter the distribution of the districts among the judges, re-Jistii- and for that purpose to remove any judge from all or any of ^^-^^^^^ the districts of which he is the judge, for the purpose of among appointing him to any other district or districts, or to appoint J^'^ses- iiny such judge to be the judge of any district or districts in addition to the district or districts of which he is the judge, or to direct that any judge shall sit as an additional judge in any district or districts. 14. No judge shall practise at the bar, or as a special pleader Judges not -or equity draftsman, or be directly or indirectly concerned as a '^° practise. conveyancer, notary public, or solicitor, or act as arbiti'ator or a'eferee for any remuneration to himself. 15. It shall be lawful for the Lord Chancellor, or the chan- Judges oellor of the duchy of Lancaster (as the case may be), if he '"emovable. shall think fit, to remove for inability or misbehaviour any judge already appointed or hereafter to be appointed by them respectively. 16. Her Majesty may, if her Majesty shall so please, include Judges in any commission of assize, oyer and terminer, or gaol delivery '"^7 ^'^,. p . -, named for ihe name of any judge. assizes. 17. Her Majesty may include in any commission of the Judges in peace for any borough, city, county, riding, or division of a county where a court is holden, the judge of such court for the "gac'J time being, and he may and shall act in the execution of the office of justice of the peace for the said borough, city, county, a-iding, or division, although he may not be qualified in such manner as is required by law in the case of other j^ersons being Justices of the peace. 18. In case of the illness or unavoidable absence of any Appoint- judge it shall be lawful for such judge to appoint a barrister- ™ent of at-law of at least seven years' standing to act as his deputy judge. during such illness or unavoidable absence ; provided that ■whenever any deputy is appointed, the fact of the appointment •and the name of the deputy shall be forthwith communicated to the Lord Chancellor, and no deputy so appointed shall be entitled to act for more than fourteen days at any time, unless with the approval of the Lord Chancellor ; provided also that, in the case of the judge's inability to make such appointment, the Lord Chancellor or the chancellor of the duchy (as the case may be) may make the same : and it shall also be lawful .for any judge, with the approval of the Lord Chancellor or chancellor of the duchy (as the case may be), to appoint a commission of the 230 APPENDIX. Judges may act for one another. Substitute for deputy judge. Deputy judge not to practise in district. Deputy judge to act during vacancy. Eemunera- tion. Court where judge can sue and be sued. barrister-at-law of at least seven years' standing to act as tie- deputy for any time or times not exceeding in the whole two months in any consecutive period of twelve months. Every deputy appoioted under this section, during the time for which he shall be so appointed, shall have all the powers and privileges and perform all the duties of the judge for whom he shall have been so appointed. 19. Any judge shall be capable of acting for any other judge within or without the districts presided over by such other judge, and where, in the absence of a judge, a deputy of such judge shall, from illness or otherwise, be incapable of performing his duties as such deputy, it shall be lawful for the Lord Chancellor to appoint another person duly qualified, to be the deputy of such judge. 20. No deputy judge, save and except of the Westminster County Court of Middlesex, shall, during the time he acts or is entitled to act as such deputy, practise as a barrister in any court within the district for which he acts or is entitled to act as such dej)uty. 21. The appointment of a deputy of a judge, whether such deputy shall have been appointed by the judge, or by the Lord Chancellor, or by the chancellor of the duchy of Lancaster, shall not be vacated by the death or resignation of the judge, but the acts of the deputy done after such death or resignation shall be as valid as ii the judge had not died or resigned, and he shall continue to act in all the courts to which he was appointed until the Lord Chancellor or the chancellor of the duchy of Lancaster (as the case may be) shall otherwise order, or a successor to such judge shall be appointed ; and such deputy shall receive as remuneration for the period that he may act as deputy, after the death or resignation of the judge, a rateable proportion of the salary and travelling allowances attached to the office so vacant during any vacancy. If no such deputy shall have been appointed, the Lord Chancellor may appoint a dejiuty with the like powers and remuneration for any period not exceeding three months, if the office shall so long remain vacant. 22. A judge proposing to sue any person dwelling or carry- ing on business in any district of which he is the judge may bring his action in the court of any adjoining district of which he is not the judge ; and any person proposing to sue a judge may bring his action in any court of a district adjoining the district of which the defendant is judge. c. c. ACT, 1888. 231 23. The salary to be received by a judge shall be one Salaries thousand five hundred pounds a year : Provided that it shall ^"'^ allow- auces Ox be lawful for the Treasury to allow to a judge such sum as the judges. Treasury shall in each case, Avitli the concurrence of the Lord Chancellor, deem reasonable to defray his travelling expenses, with reference to the size and circumstances of the district for which he is judge, or in which, under the provisions of this Act, he is directed to sit. The salaries of the judges shall be paid out of the Consolidated Fund, and the Treasury shall pay the same accordingly ; and the sums which may be allowed to them for travelling expenses shall be paid out of money provided by Parliament. 24. It shall be lawful for the Lord Chancellor from time to Pension of time, on a petition presented to him for that purpose, to J^'^S*^*- recommend to the Treasury that there shall be paid out of the Consolidated Fund to any judge who shall be afflicted with some permanent infirmity disabling him from the due execution of his ofiice, and who shall be desirous of resigning the same, an annuity or clear yearly sum of money for the term of his life, not exceeding two thirds of the yearly salary which such judge shall be entitled to as a judge at the time of presenting his petition ; and such annuity or sum shall be paid out of the Consolidated Fund, quarterly or otherwise, as the Treasury may direct. 25. For every court there shall be a registrar who shall be Appoint- a solicitor of the Supreme Court of at least five vears' standing, ^^^^^ °^ recistrai's and whom the judge shall be empowered to appoint, subject to ° the approval of the Lord Chancellor. No person shall be appointed registrar of more than one court ; and every registrar shall reside within the district of his court. In the case of any court where the number of plaints for the preceding year has exceeded eight thousand, the Lord Chancellor may in the case of any future a2)pointment make it a condition of the appointment that the registrar shall not practise as a solicitor or notary, but nothing in this section shall be deemed to dis- qualify a registrar from holding any other public appointment. 26. The registrar of each court, with such clerks as may be Duties of required, shall issue all summonses, warrants, precepts, and registrars. writs of execution, and register all orders and judgments of the said court, and keep an account of all proceedings of the court and shall take charge of and keep an account of all court fees and fines payable or paid into court, and of all moneys paid into and out of court, and shall enter an account of all such O'AO APPENDIX. Removal of registrars. Minutes of proceed- ings to be kept. Appoint- ment of joint regis- trars. On death of a joint registrar survivor to be sole registrar. Deputy registrar. fees, fines, and moneys in a book belonging to the court, to be kept by him for that purpose ; and shall from time to time, as may be directed, submit his accounts to be audited or settled. 27. It shall be lawful for the Lord Chancellor, or the chancellor of the duchy of Lancaster (as the case may be) when such Lord Chancellor or chancellor of the duchy shall in his discretion think fit, to remove the registrar of any court from his office, and from time to time to make orders as to the attend- ance of any registrar during the sitting of the court or otherwise. 28. The registrar of every court shall cause a note of all plaints and summonses, and of all orders, and of all judgments and executions and returns thereto, and of all fines, and of all other proceedings of the court, to be fairly entered from time to time in a book belonging to the court, which shall be kej)t at the office of the court ; and such entries in the said book, or . a copy thereof bearing the seal of the court and purporting to be signed and certified as a true copy by the registrar of the court, shall at all times be admitted in all courts and places whatsoever as evidence of such entries, and of the proceeding referred to by such entry or entries, and of the regularity of such proceeding, without any further proof. 29. It shall be lawful for the Lord Chancellor, in populous districts in which it shall appear to him to be expedient, to direct that two persons shall be appointed to execute jointly the office of registrar, under such regulations as to the division of the duties and emoluments of the said office as shall be from time to time made by order of court in case of difterence between them, each of such persons being qualified as is herein- before jjrovided in the case of a single registrar. 30. Upon the death, resignation, or removal of any jierson being joint registrar with another, no other person shall be appointed to such office of registrar jointly or otherwise, until both the persons holding the joint office shall have died, been removed, or resigned, unless the Lord Chancellor shall other- wise order. 31. It shall be lawful for the registrar of any court, with the approval of the judge, or in case of inability of the registrar to make such appointment, for the judge, to appoint from time to time a deputy, qualified to be appointed registrar, to act for the registrar of the said court at any time when he shall be • prevented by illness or unavoidable absence from acting in such office, and to remove such deputy at his pleasure ; and 8uch deputy while acting tinder such appointment shall have c. c. ACT, 1888. 233 Deputy- registrar provision- ithe like powers and privileges, and be subject to the like pro- visions, duties, and penalties for misbebaviour, as if he were ■the registrar of the said court for the time being. The appoint- ment of a deputy of a registrar shall not be vacated by the •death or removal of the registrar, but his acts done after such death or removal shall l»e as valid as if the registrar had not ■died or been removed, and he shall continue to act until a •successor to such registrar shall be appointed ; and he shall ireceive as remuneration for his services during the period he may so act after the death or removal of the registrar, a rate- -able proportion of the salary attached to the office of registrar. Provided that notice of any vacancy in the office of registrar shall be forthwith given by the judge having the appointment, :and no appointment shall be made to fill the vacancy within the period of one month after the date of the notice without the assent of the Lord Chancellor. 32. On the death or removal of a registrar who shall not have appointed a deputy, the judge may, for a period not exceeding three months, provisionally appoint a person qualified ally ap- to be a registrar to discharge the duties of registrar ; and such Pointed. person shall act as and have all the rights and liabilities of a registrar until a permanent successor shall be appointed, and shall receive as remuneration for his services during the period he may so act, a rateable proportion of the salary attached to the office of registrar. 33. For every court there shall, unless otherwise provided Appoint •by this Act, be one or more high bailiffs, whom the judge shall ^^^^^^ be empowered to appoint, and whom the Lord Chancellor or the chancellor of the duchy of Lancaster (as the case may be), may, if he shall think fit, remove from his office ; provided that no person shall be appointed high bailiff' of more than one ■court, and every person discharging the duties of high bailiff shall be empowered, subject to the restrictions hereinafter ■contained, by any writing under his hand, to appoint a sufficient number of able and fit persons, not exceeding such number as shall be from time to time allowed by the judge, to be bailiffs to assist him, and at his j^leasure to dismiss all or any of them, and to appoint others in their stead ; and every bailiff so appointed may be suspended or dismissed by the judge. Every .bailiff duly appointed may serve or execute any process which by any Act passed or to be passed is directed to be served or executed by a high bailifi", unless otherwise specially provided .against therein. I 234 APPENDIX. Bailiffs (luring vacancy of higli bailiff. Duties of high bailiffs, etc. On death, etc., of high bailiff, judge to appoint provision- ally a deputy. When registrar shall per- form duties of high bailiff. Piemunera- tion. 34. The appointment of the bailiffs who are appointed to- assist the high bailiff shall not be vacated by the death or removal of the high bailiff, but their acts done after such death or removal shall be as valid as if the high bailiff had not died or been removed, and had authorized such acts, and they shall continue to act until they shall be dismissed by the successor of the high bailiff or by the judge ; and they shall be paid for their services during the period they shall so act after the death or removal of the high bailiff the same wages as they were receiving at the date of such death or removal,. and such wages shall be paid out of the salary and allowances attached to the office of high bailiff. 35. The high bailiff shall attend every sitting of the court for such time as shall be required by the judge, unless when his absence shall be allowed for reasonable cause by the judge, and shall, by himself or by the bailiffs appointed to assist him as aforesaid, serve all summonses and orders, and execute all the warrants, precepts, aud writs issued out of the court, except as hereinafter provided ; and the said high bailiff and bailiffs shall in the execution of their duties conform to all such general rules as shall be from time to time made for regulating the jiroceedings of the court as hereinafter provided, and, subject thereunto, to the order and direction of the judge ; and every such high bailiff shall be responsible for all the acts and defaults of himself and of the bailiffs appointed to assist him in like manner as the sheriff of any county in England is responsible for the acts and defaults of himself and his officers. 36. On the death or removal of a high bailiff the judge may, for a period not exceeding three months, provisionally appoint a person to discharge the duties of high bailiff; and such, person shall act as and have all the rights and liabilities of a high bailiff until a permanent successor shall be appointed, and shall receive as remuneration for his services during the period he shall so act a rateable proportion of the salary and allowances attached to the oflBce of high bailiff. 37. Upon the happening of any vacancy in the office of high bailiff of any court, if the registrar of the court in which the vacancy shall occur shall have been appointed such registrar after the twenty-third day of April, one thousand eight hundred and sixty-six, or having being appointed before that day, shall be willing to perform the duties of the office of high bailiff of such court, no successor to such high bailiff shall,, unless the Lord Chancellor with the consent of the Treasury c. c. ACT, 18S8. 235 sliall otherwise cletermine, be appointed, but in either of such cases the registrar shall perform the duties of the high bailitf of such court, and shall have all the powers and authorities vested by this Act or any other Act in a high bailiff, and shall be responsible for the acts and defaults of himself and his officers in like manner as the high bailiff is by law responsible for the acts and defaults of himself and his officers. Every registrar so invested with the powers and authorities of high bailiff shall receive, in addition to his net salary as registrar, a sum equal to one fifth part of such salary, together with such sum or allowances for service and execution of process as the Treasury may determine; and such additional salary and allowances shall be paid out of the produce of the fees payable under the provisions of this Act. The appointment of a high bailiff as registrar shall vacate the office of high bailiff held by such appointee. 38. Whenever a treasurer of a court shall die, resign, or be Vacancies removed, the vacancy caused by the death, resignation, or ^^g^^^'j^g^?^ removal of such person shall not be filled up ; and the accounts aud exami-- of the registrar and other officers of the court of which the nation of liccounis 01 person who shall have died, resigned, or been removed was the otlicers. treasurer, shall be examined by such person or persons, at such time or times, and under the supervision of such person, as the Treasury shall think fit. 39. Where it shall appear to the Treasury that greater Treasurers'" efficiency and economy will be effected by permitting the ^"f^"j^'tio„_ retirement of a treasurer of a court, it shall be lawful for the Treasury to grant to any such treasurer, out of moneys to be provided for the purpose by Parliament, such superannuation allowance as the Treasury may determine, not exceeding such amount as might be granted under the Superannuation Act, 22 Vict. c. 1859, to a civil servant retiring upon medical certificate. '''^• 40. The treasurer, registrar, and high bailiff of every court Registrar •who may receive any moneys in the execution of his duty, shall ^"^j^^^|)^ give security for such sum and in such manner and form as give the Treasury from time to time shall order for the due per- security. formance of their several offices, and for the due accounting for and payment of all moneys received by them under this Act, or which they may become liable to pay for any misbe- haviour in their office. 41. No registrar, treasurer, high bailiff, or other officer of Officers not any court shall, either by himself or his partner, be directly or solicitors indirectly engaged as solicitor or agent for any party in any in the court. •236 APPENDIX. if officer is plaintirt' in his own court, defendant may re- move action to an adjoin- insrdistrict. Where officer of county court may be sued. Provision for salaries. Salaries of registrars. proceeding in the said court. And every registrar, treasurer, high bailiff, or other officer of any court who shall be, by himself or his partner, or in any way, directly or indirectly, concerned as solicitor or agent for any party in any proceeding in the said court, shall for every such offence forfeit and pay the sum of fifty pounds to any person who shall sue for the same by action of debt. 42. If an action be brought by an officer in the court of which he is an officer, except as official receiver, the judge shall, at the request of the defendant, order that the venue be changed, and that the action be sent for trial to the court of some convenient district of which he is not the judge ; and the registrar of the first-mentioned court shall forthwith transmit by post to the registrar of such last-mentioned court a certified copy of the plaint as entered in the plaint book, the duplicate copy of the summons and particulars served on the defendant, and a certified copy of the order for changing the venue as entered in the minute book; and the judge of such last- mentioned court shall appoint a day for the trial, notice whereof shall be sent by post or otherwise by the registrar of such last-mentioned court to both parties. 43. If an action be brought against an officer of a county court, the summons may issue in the district of which he is an officer, or in any adjoining district the judge of which is not the judge of a court of which the defendant is an officer. 44. The salaries and remuneration of the registrars and high bailiffs shall be paid out of the produce of the fees imyable under the provisions of this Act ; and whenever the amount of such fees shall not be sufficient to pay the salaries and remuneration, the deficiency shall be made good out of any moneys to be provided by Parliament for that purpose ; and the surplus which from time to time shall remain after payment of the salaries and remuneration shall be paid over to the credit of the Consolidated Fund. 45. A registrar shall be paid by salary, and the principle upon which the said salary shall be regulated shall be, that if the plaints entered in the court of which he is registrar do not exceed in the year from the first day of January to the thirty- first day of December inclusive the number of two hundred, the salary shall be one hundred pounds for that year ; and if the plaints so entered shall exceed two hundred, then such salary shall be increased by sums of four pounds for every twenty-five additional plaints up to six thousand inclusive; c. c. ACT, ISSS. 237 and such salaries shall be inclusive of all salaries to the clerks employed by the registrars in the business of their respective courts, and of all emoluments whatsoevei', cxcejit as by this Act otherwise provided and except those that may be receivable, in respect of special duties under any Act of Parliament and in any court in which the plaints shall have at any time exceeded six thousand the amount of salary shall be fixed from time to time by the Treasury with the concurrence of the Lord Chancellor, but in no case shall the net salary, exclusive of clerks' salaries and office expenses to be allowed, exceed seven hundred jiounds a year. In the case of any court where by reason of the amount of business therein, or of the union of the registrar's office with that of the district registrar of the High Court or the district probate registrar, or any other public office, the Lord Chancellor shall at any time be of opinion that the whole time of the registrar ought to be given to the public service, the Lord Chancellor may, by order to be laid before Parliament, direct that the registrar shall not practise as a solicitor ; and thereupon the Treasury shall assign to the registrar such salary in respect of his public offices as they may think fit, having regard to all the circumstances of the case, but no such salary shall exceed fourteen hundred pounds a year ; and every registrar to whom any such order shall apply shall, for all purposes, be deemed to be an officer of the Supreme Court within the meaning of the Supreme 4-2 & 43 Court of Judicature (Officers) Act, 1879: Provided that no '^ . c. / * such order shall be made with respect to any registrar appointed before the passing of this Act without the consent of such registrar (p. 78). 46. The high bailifi's of the courts shall be paid by salaries High to be fixed and regulated from time to time by the Treasury, ""'''"* ° ^ ^ J salaries ancs with the concurrence of the Lord Chancellor, and shall, in fees. addition to such salaries, receive, for their own use, besides any additional remuneration as herein-after mentioned, the fees appointed for keeping possession of goods under executions, and such salaries shall include all jiayments made by the high bailiffs to their under bailiffs, or, with the like consent, the high bailiffs may be paid partly by salaries and partly by allowances for the execution of warrants, and for mileage on the service or execution of any process. 47. The Treasury with the concurrence of the Lord IJemunera- Chancellor shall direct whether any and what additional or (.fficeis other remuneration shall be allowed to any person performing 238 APPENDIX. Penalty for assaulting bailiri's, or rescuing goods taken in ■execution. Bailifls made answerable for escapes and neglect to levy execution. KemeJies -against and penalties un bailiffs and other officers for miscon- duct. any duties under this Act or under any Act passed or to be passed where by such Act no remuneration is or shall be given for the performance of duties by officers of the courts ; and such remuneration shall be paid out of the fees which the Treasury, with the consent of the Lord Chancellor, is em- powered to order to be taken on proceedings authorised to be taken in the courts. This section shall not apply to the City of London Court. 48. If any officer or bailiff of any court shall be assaulted while in the execution of his duty, or if any rescue shall be made or attemj)ted to be made of any goods levied under pro- cess of the court, the person so offending shall be liable to a fine not exceeding five pounds, to be recovered by order of the judge, or on summary conviction in manner provided by the Summary Jurisdiction Acts; and it shall be lawful for the bailift' of the court, in any such case, to take the ofiender into custody (with or without warrant), and bring him before such judge accordingly (p. 185). 49. In case any bailiff of any court who shall be employed to levy any execution against goods and chattels shall, by neglect or connivance or omission, lose the opportunity of levying any such execution, then upon complaint of the party aggrieved by reason of such neglect, connivance, or omission (and the fact alleged being proved to the satisfaction of the court on the oath of any credible witness), the judge shall order such bailiff to pay such damages as it shall appear that the plaintiff has sustained thereby, not exceeding in any case the sum of money for which the said execution issued, and the bailiff shall be liable thereto ; and upon demand made thereof, and on his refusal so to pay and satisfy the same, payment thereof shall be enforced by such ways and means as are herein provided for enforcing a judgment recovered in the court. 50. If any registrar, bailiff, or officer of any court, acting under colour or pretence of the process of the said court, shall be charged with extortion or misconduct, or with not duly paying or accounting for any money levied by him under the authority of this Act, it shall be lawful for the judge to inquire into such matter in a summary way, and for that purpose to summon and enforce the attendance of all necessary parties in like manner as the attendance of witnesses in any case may be enforced, and to make such order thereupon for the repayment of any money extorted or for the due payment of any money so levied as aforesaid, and for the payment of such damages c. c. A(JT, 1888. 239 and costs as lie shall think just, and also, if he shall think fit, to impose such fine upon the registrar, bailiff", or officer, not exceeding ten pounds for each offence, as he shall deem ade- quate ; and in default of payment of any money so ordered to be paicl, payment of the same may be enforced by such ways and means as are herein provided for enforcing a judgment recovered in the said court. 51. Every treasurer, registrar, bailiff", or other officer em- Penalty on j)loyed in putting this Act or any of the powers thereof in l^^^^^ execution, who shall wilfully and corruptly exact, take, or fees besides accept any fee or reward whatsoever, other than and except ^^°^^^ such fees as are or shall be appointed and allowed respectively for or on account of anything done or to be done by virtue of this Act, or on any account whatsoever relative to putting this Act into execution, shall, upon proof thereof before the judge of the court, and in the case of a treasurer, registrar, or high bailiff", on allowance of the finding of the judge by the Lord Chancellor, be for ever incapable of serving or being employed under this Act in any office of profit or emolument, and shall also be liable for damages as in this Act before provided. 52. No officer of any court in executing any warrant of Xo officer a court, and no person at whose instance any such warrant ^^^ f shall be executed, shall be deemed a trespasser by reason of trespasser any irregularity or informality in any proceeding on the by leason validity of which such warrant depends, or in the form of such larity.'' warrant, or in the mode of executing it, but the party aggrieved may bring an action for any special damage which he may have sustained by reason of such irregularity or informality against the party guilty thereof, and in such action he shall recover no costs, unless the damage awarded shall exceed forty shillings (jj. 185). 53. All actions and prosecutions to be commenced against Limitation any person for anything done in pursuance of this Act shall, foj. proceed unless otherwise provided, be laid and tried in the county iugs in where the fact was committed, and shall be commenced within three months after the fact committed, and not afterwards or otherwise ; and notice in writing of such action or prosecution, and of the cause thereof, shall be given to the defendant one month at least before the commencement thereof; and no plaintiff' shall recover in any such action if tender of sufficient amends shall have been made before action brought, or if after action brought a sufficient sum of money shall have been paid into court, with costs, by or on behalf of the defendant. execution of this Act. 240 APPEXDIX. No action to be brought against bailiff, etc. acting under order of the court without notice ; and regis- trar to be made defendant in the action. Protection to officers. 54. No action shall be commenced against any bailiff, op against any person acting by the order and in aid of any bailiff, for anything done in obedience to any wai'rant under the hand of the registrar and the seal of the court, until demand has been made or left at the office of such bailiff by the party intending to bring such action, or by his solicitor or agent, in writing, signed by the party demanding the same, of the i)erusal and copy of such warrant, and the same has been refused or neglected for the space of six days after such demand ; and in case after such demand and compliance there- with, by showing the said warrant to and permitting a copy to be taken thereof by the party demanding the same, any actioci shall be brought against such bailiff, or other person acting in his aid for any such cause as aforesaid, without making the registrar who signed or sealed the said warrant defendant, on producing or proving such warrant at the trial of such action, a verdict shall be given for the defendant, notwithstanding any defect of jurisdiction or other irregularity in the said warrant ; and if such action be brought jointly against such registrar, and also against such bailiff, or person acting in his aid as. aforesaid, then on proof of such warrant the finding shall be for such bailiff, and for such person so acting as aforesaid;, notwithstanding such defect or irregularity as aforesaid ; and if the verdict shall be given against the said registrar, the plaintiff shall recover his costs against him, to be taxed in such manner by the proper officer as to include such costs as such plaintiff is liable to pay to such defendant for whom such, verdict shall be found as aforesaid. 55. In any action commenced against any person for any- thing done in pursuance of this Act, the production of the warrant under the seal of the court shall be deemed sufficient proof of the authority of the court previous to the issuing of such warrant ; and in case the plaintiff shall have a verdict or judgment pass against him, be nonsuit, or discontinue, the defendant shall in any such case be allowed full costs a& between solicitor and client. Part III. Jurisdiction and Law. Ordinary 56. All personal actions, where the debt, demand, or damage junsdic- claimed is not more than fifty pounds, whether on balance of tion of the , . , -, • ^^ ^ i it court. account or otherwise, may be commenced in the court ; and all c. c. ACT, 1888. 241 isuch actions shall be heard and determined in a summary way- according to the provisions of this Act : Provided always that, except as in this Act provided, the court shall not have cogni- zance of any action of ejectment, or in which the title to any •corporeal or incor2)oreal hereditaments, or to any toll, fair, market, or franchise, shall be in question, or for any libel or slander, or for seduction, or breach of promise of marriage ' sum of money not greater than fifty pounds which may be duo to him for wages or piece work, or for work as a servant, iu the same manner as if he were of full age. 97. Where any plaintiff shall have any demand recoverable One of tinder this Act against two or more persons jointly answerable, persons it shall be sufiicieut if any of such persons be served with liable ma\r process, and judgment may be obtained and execution issued "^^^'^ ' against the person or persons so served, notwithstanding that others jointly liable may not have been served or sued, or may not be within the jurisdiction of the court ; and every such person against whom judgment shall have been obtained, and who shall have satisfied such judgment, shall be entitled to demand and recover in the court contribution from any other person jointly liable with him (p. 158). 98. Any person against whom a plaint shall be entered in Confession any court may, if he think fit, whether he be summoned upon of fJebts or such plaint or not, in the presence of any registrar, registrar's debts, etc^ clerk, or solicitor, sign a statement confessing and admitting ^°d judg- the amount of the debt or demand, or part of the amount of thereupon. the debt or demand, for which such plaint shall have been entered ; and it shall be the duty of the registrar of the court in which the plaint was entered, as soon as conveniently may be after receiving such statement, to send notice thereof to the plaintiff by post, or by causing the same to be delivered at his usual place of abode or business, and thereupon it shall not be necessary for the said plaintift' to prove the debt or demand so confessed and admitted as aforesaid ; but the court, at the next sitting thereof, whether the parties or either of them attend such court or not, shall, upon proof by affidavit of the signature of the party, if such statement was not made in the presence of a registrar, or one of his clerks, enter uj) judgment for the debt or demand so confessed and admitted. 99. If the person against whom a plaint shall be entered in Agreement a court can agree with the person on whose behalf such plaint ^^ *° shall have been entered upon the amount of the debt or demand ^ebt and in respect of which such plaint shall have been entered, and condition& upon the terms and conditions upon which the same shall be n^gut"' l)aid and satisfied, it shall be lawful for such persons respec- tively, in the presence of the registrar of the court in which such plaint shall have been entered, or one of his clerks, or in the presence of a solicitor, to sign a statement of the amount 256 APPENDIX. of the debt or cleraand so agreed upon between such persons respectively, and of the terms and conditions upon which the same shall be paid or satisfied, and such registrar shall receive such statement, and shall thereupon, upon proof by affidavit of the signatures of the parties, if such statement was not signed in the presence of the registrar, or one of his clerks, enter up judgment for the plaintiff for the amount of the debt or demand so agreed on, and upon the terms and conditions mentioned in such statement; and such judgment shall to all intents and purposes be the same and have the same effect, and shall be enforced and enforceable in the same manner as if it had been a judgment of the judge of the said court. Judge 100. The judge shall be the sole judge in all actions brought alone to jjj ^^q court, and shall determine all questions as well of fact allques-'^ as of law, unless a jury shall be summoned as hereinafter tions, mentioned (p. 73). ^"r^^be* 101. In all actions where the amount claimed shall exceed summoned, five pounds, it shall be lawful for the plaintiff or defendant to Trial with require a jury to be summoned to try the said action, unless jury when ^-^q action is of the nature of the causes or matters assigned to l^cll'tl6S a-equire it. the Chancery Division of the High Court of Justice ; and in all actions where the amount claimed shall not exceed five pounds, it shall be lawful for the judge in his discretion, on the application of either of the parties, to order that such action be tried by a jury ; and in every case such jury shall be summoned according to the provisions in this Act contained : The party requiring a jury to be summoned shall give to the registrar of the court, or leave at his office, such notice thereof as shall be prescribed ; and the said registrar shall cause notice of such demand of a jury, made either by the plaintiff or defendant, to be communicated to the other party to the said a,ction, either by post or by causing the same to be delivered at his usual place of abode or business, but it shall not be necessary for either party to prove on the trial that such notice was communicated to the other party by the registrar. Every party requiring a jury to be summoned shall, at the time of giving the said notice, and before he shall be entitled to have such jury summoned, pay to the registrar of the court the sum of five shillings for payment of the jury, and such sum shall be considered as costs in the action, unless otherwise ordered by the judge. Whenever it is required that a jury should be summoned for the trial of any matter arising out of the juris- diction given to the court by section sixty-seven of this Act, C. C. ACT, 1888. 257 the jury shall be summoned from the list of jurors iu the possession of the registrar of the court in which the action or matter was commenced ( jjp. 70, 71, 72, 73, 115). 102. The sheriff of every county, and the high bailiffs of Westminster and Southwark, shall cause to be delivered to the registrar of the court a list of persons qualified and liable to serve as jurors in the courts of assize and nisi prius for their county, city, and borough respectively, within fourteen days fi'om the receipt of the jury book from the clerk of the peace of the county or other officer, each list containing only the names of persons residing within the jurisdiction of the court, for which list the said sheriffs and high bailiffs shall be entitled to receive a fee after the rate of twopence for every folio of seventy- two words; and whenever a jury shall be required the registrar of the court shall cause so many of the persons named in the list as shall be prescribed, to be summoned to attend the court at a time and place to be mentioned in the summons, and shall administer, or cause to be administered, to such of them as shall be impanelled, an oath to give true verdicts according to the evidence ; and the persons so summoned shall attend at the court at the time mentioned in the summons, and in default of attendance shall forfeit such sum of money as the judge shall direct, not being more than five pounds for each default ; and the delivery of such summons to the person whose attend- ance is required on such jury, or delivery thereof to his wife or servant, or any inmate at his usual place of abode, trading, or dealing, shall be deemed good service : Provided always, that no person shall be summoned or compelled to serve on such jury more than twice within one year, or who shall have been summoned and shall have attended upon any jury for the same county at the assizes, or any court of nisi prius, or at the Central Criminal Court within six months next before the delivery of such summons. Whenever there are any jury trials five jurymen shall be impanelled and sworn, as occasion shall require, to give their verdicts in the actions which shall be brought before them in the said court, and being once sworn shall not need to be re-sworn in each trial ; and either of the parties to any such action shall be entitled to his lawful challenge against all or any of the said jurors in like manner as he would be entitled in the High Court; and the jurymen so sworn shall be required to give an unanimous verdict. 103. In any action or matter it shall be lawful for the judge if he think fit, on the application of either party, to summon to S Who shall be juror.s, and their number. Appoint- ment of assessors. 258 APPENDIX. Actions may be settled by arbitra- tion. Where judgment does not exceed £20, court may order pay- ment by instal- ments. In other cases consent of plaintiffs necessary. Judge may grant time. his assistance, in sucla manner as may be prescribed, one or more persons of skill and experience in the matter to which the action or matter relates, who may be willing to sit with the judge and act as assessors ; and their remuneration for so sitting shall be at such rate as may be prescribed, and shall be costs in the action or matter, unless otherwise ordered by the judge ; but, where any person is proposed to be summoned as an assessor, objection to him, either personally or in respect of his qualification, may be taken by either party in the prescribed manner {pp. 72, 73, 77). 104. The judge may in any case, with the consent of both parties to the action, order the same, with or without other matters within the jurisdiction of the court in dispute between such parties, to be referred to arbitration, to such person or persons and in such manner, and on such terms as he shall think reasonable and just ; and such reference shall not be revocable by either party, except by consent of the judge ; and the award of the arbitrator or arbitrators, or umpire, shall be entered as the judgment in the action, and shall be as binding and effectual to all intents as if given by the judge : Provided that the judge may, if he think fit, on application to him at the first court held after the expiration of one week after the entry of such award, set aside any such award so given as aforesaid, or may, with the consent of both parties aforesaid, revoke the reference, or order another reference to be made in the manner aforesaid (p. 180). 105. Where judgment has been obtained for a sum not exceeding twenty pounds, exclusive of costs, the court may order such sum and the costs to be paid at such time or times, and by such instalments, if any, as it shall think fit, and all such moneys shall be paid into court ; but in all other cases the full amount for which judgment has been obtained shall be ordered to be paid either forthwith or within fourteen clear days from the date of the judgment, unless the plaintiff, or his counsel, solicitor, or agent, will consent that the same shall be paid by instalments, in which case the court shall order the same to be paid at such time or times, and by such instalments, if any, as shall be consented to ; and all such moneys, whether payable in one sum or by instalments, shall bo paid into court. 106. The judge may in any case make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of the action or matter, and also may from time to time adjourn any court, or the hearing or further hearing of C. C. ACT, 1888. 259 any action or matter, in such manner as tlie judgo may think fit {p. 178). 107. It shall be lawful for the defendant in any action or matter within such time as shall be prescribed, to pay into court such sum of money as he shall think a full satisfaction for the demand of the plaintiff, together with the costs incurred by the plaintiff up to the time of such payment ; and notice of such payment shall be communicated by the registrar to the plaintiff by post, or by causing the same to be delivered at his usual place of abode or business ; and the said sum of money shall be paid to the plaintiff; but if the plaintiff shall elect to proceed, and shall recover no further sum in the action or matter than shall have been so paid into court, he shall pay to the defendant the costs incurred by him in the said action or matter after such payment ; and such costs shall be settled by the court, and an order shall thereupon be made by the court for the payment of such costs by the plaintiff. 108. Where a party is required to give security, such security shall be at the cost of the party giving it, and in the form of a bond, with sureties, to the other party or intended party in the action or matter : Provided always, that the court in which any action on the bond shall be brought may by order give such relief to the obligors as may be just, and such order shall have the effect of a defeasance of such bond {p. 101). 109. Where a party is required to give security, he may in lieu thereof deposit with the registrar, if the security is required to be given in the court, or with a master of the Supreme Court if the security is required to be given in the High Court, a sum equal in amount to the sum for which he would be required to give security, together with a memorandum, to be approved of by such registrar or master, and to be signed by such party, his solicitor or agent, setting forth the conditions on which such money is deposited, and the registrar or master shall give to the party paying a written acknowledgment of such payment ; and the judge of the county court, when the money shall have been deposited in such court, or a judge of the High Court when the money shall have been deposited in the High Court, may, on the same evidence as would be required to enforce or avoid such bond as in the last preceding section is mentioned, order such sum so deposited to be paid out to such party or parties as he shall think just {p. 101). 110. Either of the parties to any action or matter may obtain from the registrar summonses to witnesses, with or Defendant may pay money into court ; notice to be given to plaintift'. How secu- rities to be given and enforced. Where security is required to be given, a deposit of money may be made iu lieu there- of. Service of summonses 2G0 APPENDIX. to wit- nesses and others. Penalty on witnesses neglecting summons. Judge may issue warrant for bringing up a prisoner to give evi- dence. without a clause requiring the i^roduction of books, deeds, papers, and writings in the possession or control of the person summoned as a witness ; and such summonses, and any sum- monses which are now or may be required to be served person- ally, may, under such regulations as may be prescribed, be served by a bailiff of the court or otherwise (p. 37.3). 111. Every person summoned as a witness, either personally or in such other manner as shall be prescribed, to whom at the same time payment or a tender of payment of his expenses shall have been made on the prescribed scale of allowances, and who shall refuse or neglect, without sufficient cause, to appear, or to produce any books, papers, or writings required by such summons to be produced, or who shall refuse to be sworn or give evidence, and also every person j)resent in court who shall be required to give evidence, and who shall refuse to be sworn or give evidence, shall forfeit and pay such fine, not exceeding ten pounds, as the judge shall direct ; and the whole or any part of such fine, in the discretion of the judge, after deducting the costs, shall be apj)licable towards indemni- fying the party injured by such refusal or neglect, and the remainder thereof shall be accounted for by the registrar to the treasurer (jj. 373). 112. A judge in any case where he shall think fit, upon ajiplication on an affidavit by either party, may issue an order under his hand and the seal of the court for bringing up before such court any prisoner or person confined in any gaol, prison, or place, under any sentence or under commitment for trial or otherwise, except under process in any civil action, or matter, to be examined as a witness in any action or matter depending or to be inquired of or determined in or before such court ; and the person required by any such warrant or order to be brought before the court shall be so brought under the same care and custody, and be dealt with in like manner in all respects as a prisoner required by any writ of habeas corpus awarded by the High Court to be brought before such court to be examined as a witness in any action or matter pending before such court is by law required to be dealt with : Pro- vided always, that the person having the custody of such prisoner or person shall not be bound to obey such order unless a tender be made to him of a reasonable sum for the convey- ance and maintenance of a proper officer or officers and of the prisoner or person in going to, remaining at, and returning from such court (p. 373). c. c. ACT, 1888. 2G1 113. All the costs of any action or matter in the conrt, not Costs to herein otherwise provided for, shall be paid by or apportioned l^^^^^^ ^ between the parties in such manner as the court shall think just, and in default of any special direction shall abide the event of the action or matter, and execution may issue for the recovery of any such costs in like manner as for any debt adjudged in the said court {p. 145). 114. Whenever an action or matter is commenced over Comt may which the court has no jurisdiction, the judge shall, unless the ^j^^-J^^ parties consent to the court having jurisdiction, order it to be where struck out, and shall have power to award costs in the same action or manner, to the same extent, and recoverable in the same manner, ^l'^.^^^^ ^^^ as if the court had jurisdiction therein, and the plaintiff had for want of not appeared, or had appeared and failed to prove his demand J"^"^^'^''^' or complaint (pj;. 60, 146). 115. If any party shall sue another in any court for any Xo second debt or other cause of action for which he has already sued action for him and obtained judgment in any other court, proof of such 'j'j.eble former action having been brought and judgment obtained may costs. be given, and the party so sueing shall not be entitled to recover in such second action, and shall be adjudged to pay three times the costs of such second action to the opposite party ( jj. 146). 116. With respect to any action brought in the High Court Costs when which could have been commenced in a county court, the "^^^.g^j.^']^jQ following provisions shall apply: — la High (1) If in an action founded on contract the plaintiff shall Court. recover a sum less than twenty pounds, he shall not be entitled to any costs of the action, and if he shall recover a sum of twenty pounds or upwards, but less than fifty pounds, he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court ; and (2) If in an action founded on tort the plaintiff shall recover a sum less than ten pounds, he shall not be entitled to any costs of the action ; and, if he shall recover a sum of ten pounds or upwards, but less than twenty pounds, he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court ; unless in any such action, whether founded on contract or on tort, a judge of the High Court certifies that there was sufficient reason for bringing the action in that Court, or unless the High Court or a judge thereof at 262 APPENDIX. Costs of action brought elsewhere than in county court. Costs of solicitor to be taxed by- registrar. Costs on higher scale. Chambers shall by order allow costs. Provided that, if in any action founded on contract the plaintiff shall within twenty-one days after the service of the writ, or within such further time as may be ordered by the High Court or a judge thereof, obtain an order under order fourteen of the Rules of the Supreme Court empowering him to enter judgment for a sum of twenty pounds or upwards, he shall be entitled to costs according to the scale for the time being in use in the Supreme Court (pj). 66, 67, 96, 146). 117. Where any action shall be brought in any other court than the High Court which could have been brought in a county court, and the verdict recovered is for a less sum than ten pounds, the plaintiff shall not recover from the defendant a greater amount of costs than he would have been allowed if the action had been brought in a county court (pp. 96, 113, 146). 118. All costs and charges between party and party shall be taxed by the registrar of the court in which such costs and charges were incurred, but his taxation may be reviewed by the judge on the application of either party, and no costs or charges shall be allowed on such taxation which are not sanctioned by the scale then in force. All costs and charges between solicitor and client shall, on the application either of the solicitor or client, but not otherwise, be taxed by the registrar of the court in which such costs and charges were incurred, but his taxation may be reviewed by the judge on the application of either party, and no costs or charges shall be allowed on such taxation which are not sanctioned by the scale then in force, unless the registrar shall be satisfied that the client has agreed in writing to pay them, in which case they may be allowed ; and no solicitor shall have a right to recover from his client any such costs or charges unless they shall have been allowed on taxation {pp. 188, 190). 119. The judge may award costs on any scale higher than that which would be otherwise applicable to the plaintiff on any amount recovered, however small, or to a defendant who successfully defends an action brought for any amount, how- ever small, provided that the said judge certifies in writing that the action involved some novel or difficult point of law, or that the question litigated was of importance to some class or body of persons, or of general or public interest {p. 192). c. c. ACT, 1888. 263 Part V. Appeals, etc. 120. If any party in any action or matter shall be dissatisfied Parties with the determination or direction of the iudffe in point of '''SS'ieved , , . . . . "i^y appeal law or equity, or upon the admission or rejection of any by notice evidence, the party aggrieved by the judgment, direction, of motion. decision, or order of the judge may appeal from the same to the High Court, in such manner and subject to such conditions as may be for the time being provided by the rules of the Supreme Court regulating the procedure on appeals from inferior courts to the High Court ; Provided always, that there shall be no appeal in any action of contract or tort, other than an action of ejectment or an action in which the title to any corporeal or incorporeal hereditament shall have come in question, where the debt or damage claimed does not exceed twenty pounds, nor in any action of replevin, where the amount of rent or the damage or value of the goods seized does not exceed twenty pounds, nor in any action for the recovery of tenements where the yearly rent or value of the premises does not exceed twenty pounds, nor in proceedings in interpleader where the money claimed or the value of the goods or chattels claimed, or of the proceeds thereof, does not exceed twenty pounds, unless the judge shall think it reasonable and proper that such appeal should be allowed, and shall grant leave to appeal. At the trial or hearing of any action or matter, in which there is a right of appeal, the judge, at the request of either party, shall make a note of any question of law raised at such trial or hearing, and of the facts in evidence in relation thereto, and of his decision thereon, and of his decision of the action or matter {pp. 96, 99, 104, 109, 110, 114, 115). 121. In any action or matter in which there is a right of Procedure appeal, and the judge has at the request of either party made °^ appeal. a note of any question of law raised at such trial or hearing, a,nd of the facts in evidence in relation thereto, and of his •decision thereon, and of his decision of the action or matter, he shall at the expense of any person or j)ersons being j^arty or parties in any such action or matter, furnish a copy of the note so taken at the said trial or hearing, or allow a copy to be taken of the same, by or on behalf of such person or persons, and he shall sign such copy, whether a notice of motion in the matter of the said appeal has been served or not, and the copy 264 APPENDIX. Jurisdic- tion of High Court. Parties may agree not to appeal. No appeal allowed except as in this Act mentioned. Assessors on appeal. Where action may be removed on security given. Judge of Higli Court may hear applica- tions for prohibi- tion. Prohibi- so signed shall be used and received at the hearing of such appeal. 122. On the hearing of an appeal the High Court shall have power to draw any inference of fact, and may either order a new trial on such terms as the court shall think just, or may order judgment to be entered for any party, as the case may be, or may make a final or other order on such terms as the High Court may think proper to ensure the determination on the merits of the real questions in controversy between the parties {pp. 74, 102). 123. No appeal shall lie from the decision of the judge, i-f before such decision is pronounced the parties shall agree, in writing signed by themselves or their solicitors or agents, that his decision shall be final, and no such agreement shall require a stamp {p. 106). 124. No judgment or order of any judge, nor any action or matter brought before him or pending in his court, shall be removed by appeal, motion, certiorari, or otherwise, into any other court whatever, save and except in the manner and according to the provisions in this Act mentioned. 125. Where an Admiralty action has been heard in the court with the assistance of nautical assessors, Elder Brethren of the Trinity House shall be summoned to assist on the hearing of an appeal by the High Court if either party shall require the same, and the High Court shall be of opinion that the assistance of the Elder Brethren is necessary or- desirable (p. 103). 126. It shall be lawful for the High Court or a judge thereof to order the removal into the High Court, by writ of certiorari or otherwise, of any action or matter commenced in the court under the provisions of this Act, if the High Court or a judge thereof shall deem it desirable that the action or matter shall be tried in the High Court, and upon such terms as to payment of costs, giving security, or otherwise as the High Court or a judge thereof shall think fit to impose {pp. 62, 63, 94, 154). 127. It shall be lawful for any judge of the High Court, as well during the sittings as in vacation, to hear and determine applications for writs of prohibition to any court, and to make such orders for the issuing of such writs as might have been made by the High Court, and all such orders so made by any such judge of the High Court shall have the same force and effect as heretofore (pp. 99, 154, 156). 128. When an application shall be made to the High Court c. c. ACT, 1888. 265 or a judge thereof for a writ of prohibition addressed to any tion finally court, the matter shall be finally disposed of by order, and no '^'f g^^Jjei." declaration or further proceedings in prohibition shall be allowed. Upon any such application the judge of the court shall not be served with notice thereof, and shall not, except by the order of a judge of the High Court, be required to appear or be heard thereon, and shall not, except by such order, be liable to any order for the payment of the costs thereof; but the application shall be proceeded with and heard in the same manner in all respects as any case of an appeal - duly brought from a decision of a judge ; and notice thereof shall be given to or served upon the same parties as in any case of an order made or refused by a judge in a matter within his jurisdiction, as the case may be (pp. 99, 15-t). 129. The grant by the High Court, or by any judge thereof. Order to of an order or summons to show cause why a writ of certiorari ^ °^ *^^"^^ «' _ as to cer- or prohibition should not issue to any court shall, if the High tiorari or Court or a iudge thereof so direct, operate as a stay of pro- pi"ohibi- . , . •, . 1 , , n 1 tion a stay ceedings in the action or matter to which the same shall relate, of proceed- until the determination of an order or summons, or until such ingsifHigh High Court or judge thereof shall otherwise order ; and the ^jj^-gct judge shall from time to time adjourn the trial of such action or matter to such day as he shall think fit, until such deter- mination, or until such order be made ; but if a copy of such order or summons shall not be served by the party who obtained it on the opposite party and on the registrar two clear days before the day fixed for the trial of the action or matter, the judge may, in his discretion, order the party who obtained the order or summons to pay all the costs of the day, or so much thereof as he may think fit, unless the High Court or a judge thereof shall have made some order respecting such costs (pp. 154, 156). 130. Where a writ of certiorari or of prohibition to a court Costs of shall have been granted by the High Court or a judge thereof certiorari on an ex parte application, and the party who obtained it shall tion if not not lodge it with the registrar, and give notice to the opposite sent to I'Gf^istrtir party that it has issued, two clear days before the day fixed for the trial of the action or matter to which it shall relate, the judge may, in his discretion, order the party who obtained the writ to pay all the costs of the day, or so much thereof as he shall think fit, unless the High Court or a judge thereof shall have made some order respecting such costs (p. 154). 131. No writ of mandamus shall issue to a judge or an Order in 266 APPENDIX. lieu of officer of the court for refusing to do any act relating to the duties of his office, but any party requiring such act to be done may apply to the High Court, upon an affidavit of the facts, for an order or summons calling upon such judge or officer of the court, and also the party to be affected by such act, to show cause why such act should not be done ; and if after the service of such order or summons good cause shall not be shown, the High Court may, by order, direct the act to be done, and the judge or officer of the court, upon being served "with such order, shall obey the same on pain of attachment ; and, in any event, the High Court may make such order with respect to costs as to it shall seem fit (p. 154). No judge 132. When the High Court or a judge thereof shall have wrU or refused to grant a writ of certiorari or prohibition to a court, order once or any such order as in the last preceding section mentioned, refused. jjq other court or judge shall grant such writ or order ; but nothing herein shall affect the right of appealing from the decision of the judge of the High Court to the High Court itself, or prevent a second application being made for such writ or order to the High Court or a judge thereof on grounds different from those on which the first application was founded {pp. 154, 15G). Part VI. Heplevin ; Becovery of Tenements. Actions of 133. All actions of replevin which shall be brought in the niav^be" court, shall be brought by plaint, and in every such action the brought by plaint shall be entered in the court of the district where the plaint. goods were seized. Registrar 134. The sheriff shall have no powers and responsibilities o grant -with respect to replevin bonds and replevens ; but the registrar of the court of the district in which any goods subject to replevin shall be taken, shall be empowered, subject to the regulations hereinafter contained, to approve of replevin bonds, and to grant replevins, and to issue all necessary process in relation thereto, and such process shall be executed by the bailiff. Such registrar shall, at the instance of the party whose goods shall have been seized, cause the same to be replevied to such party, on his giving one or other of such securities as are mentioned in the next two succeeding sections. Conditions 135. Where a replevisor shall wish to commence proceedings 01 security , . . . . to be given ^^ the High Court he shall, at the time of replevying, give c. c. ACT, 1888. . 267 security, to be approved of by the registrar in tbe last preceding in cases of section mentioned, for such an amount as such registrar shall ||^'' ^^'^'^ . deem sufficient to cover the alleged rent or damage, or if the in llii,'h goods replevied have been seized otherwise than under colour ^""'■^• of distress, the value of the goods, and in either case the probable costs of the action in the High Court, conditioned to commence an action of replevin against the seizor in the High Court, within one week from the date thereof, and to prosecute such action with effect and without delay, and unless judgment thereon be obtained by default, to prove before the High Court that he had good ground for believing either that the title to some corporeal or incorporeal hereditament, the rent or value whereof exceeded twenty pounds by the year, or to some toll, market, fair, or franchise, was in question, or that such rent or damage, or the value of the goods seized, exceeded twenty pounds, and to make return of the goods if a return thereof shall be adjudged. 136. If a rejilevisor shall wish to commence proceedings in Conditions a county court, he shall at the time of replevying give security, of security to be approved of by the registrar, for such an amount as such when registrar shall deem sufficient to cover the alleged rent or I'eplevin damage in respect of which the distress shall have been made, county or if the goods replevied have been seized otherwise than under court. colour of distress, the value of the goods, and in either case the probable costs of the action, conditioned to commence an action of replevin against the seizor in the court of the district in which the goods shall have been seized, within one month from the date of the security, and to prosecute such action with effect and without delay, and to make a return of the goods if a return thereof shall be adjudged. 137. Any action of replevin brought in the court shall be Replevins removed into the High Court by writ of certiorari, if the ^^^^}^ ^^ ^ '-' •^ insttiucG 01 defendant shall apply to the High Court or to a judge thereof defendant for such writ, and shall give security, to be approved of by a be removed master of the Supreme Court, for such amount, not exceeding q^^^^^ [1^ one hundred and fifty pounds, as such master shall think fit, certiorari conditioned to defend such action with effect, and unless the '" certain 1 • 1 n • • • cases. replevisor shall discontinue or shall not prosecute such action, or shall become nonsuit therein, to prove before the High Court that the defendant had good ground for believing, either that the title to some corporeal or incorporeal hereditament, the rent or value whereof exceeded twenty pounds by the year, or to some toll, market, fair, or franchise, was in question, or 2G8 APPENDIX. Possession of small tenements may be recovered in county- courts by landlords where term has expired or been determined by notice. Possession of small tenements may be recovered in the court by landlords for non- payment rent. that tbe rent or damage in respect of whicli the distress shall have been taken or the value of the goods seized exceeded twenty pounds. 138. When the term and interest of the tenant of any corporeal hereditament, where neither the value of the premises nor the rent payable in respect thereof shall have exceeded fifty pounds by the year, and upon which no fine or premium shall have been duly paid, shall have expired, or shall have been determined either by the landlord or the tenant by notice to quit, and such tenant, or any person holding or claiming by, through, or under him, shall neglect or refuse to deliver up possession accordingly, the landlord may enter a plaint, at his option, either against such tenant, or against such person so neglecting or refusing, in the court of the district in which the premises lie, for the recovery of the same, and thereupon a summons shall issue to such tenant or such person so neglect- ing or refusing; and if the defendant shall not at the time named in the summons, show good cause to the contrary, then, on proof of his still neglecting or refusing to deliver up possession of the premises, and of the yearly value and rent of the premises, and of the holding, and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the plaintiif, if such title has accrued since the letting of the premises, and of the service of the summons, if the defendant shall not appear thereto, the judge may order that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff, either forthwith or on or before such day as the judge shall think fit to name ; and if such order be not obeyed, the registrar, whether such order can be proved to have been served or not, shall, at the instance of the plaintiff, issue a warrant authorizing and requiring the bailiff of the court to give possession of such premises to the plaintiff. In any such plaint against a tenant, the plaintiff may add a claim for rent or mesne profits, or both, down to the day appointed for the hearing, or to any preceding day named in the plaint, so as the same shall not exceed fifty pounds. 139. When the rent of any corporeal hereditament, where neither the value of the premises nor the rent payable in respect thereof exceeds fifty pounds by the year, shall for one half- year be in arrear, and the landlord shall have right by law to re-enter for the nonpayment thereof, he may, without any formal demand or re-entry, enter a plaint in the court of the f district in which the premises lie, for the recovery of the c. c. ACT, 1888. 269 premises, and thereupon a summous shall issue to the tenant, the service whereof shall stand in lieu of a demand and re-entry ; and if the tenant shall, five clear days before the return day of such summons, pay into court all the rent in arrear and the costs, the action shall cease ; but if he shall not make such payment, and shall not at the time named in the summons show good cause why the premises should not be recovered, then, on proof of the yearly value and rent of the premises, and of the fact that one half-year's rent was in arrear before the plaint was entered, and that no sufficient distress was then to be found on the premises to countervail such arrear, and of the landlord's power to re-enter, and of the rent being still in arrear, and of the title of the plaintiff if such title has accrued since the letting of the premises, and of the service of the summons if the defendant shall not appear thereto, the judge may order possession of the premises men- tioned in the plaint to be given by the defendant to the plaintiff on or before such day, not being less than four weeks from the day of hearing, as the judge shall think fit to name, unless within that period all the rent in arrear and the costs are paid into court, and if such order be not obeyed, and such rent and costs are not so paid, the registrar shall, whether such order can be proved to have been served or not, at the instance of the plaintiff, issue a warrant authorizing and requiring the bailiff" of the court to give possession of such premises to the plaintiff, and the plaintiff shall, from the time of the execution of such warrant, hold the premises discharged of the tenancy, and the defendant and all persons claiming by, through, or under him, shall, so long as the order of the court remains unreversed, be barred from all relief. 140. Where any summons for the recovery of a tenement Sub-tenant as is hereinbefore specified shall be served on or come to the ^^}'J^^ knowledge of any sub-tenant of the plaintiff's immediate mons to tenant, such sub-tenant being an occupier of the whole or of a recover ° -,,,,„,., possession part of the premises sought to be recovered, he shall torthwith jj^yg^ gj^g give notice thereof to his immediate landlord, under penalty of notice to forfeiting three years rackrent of the premises held by such ^iate^land- sub-tenant to such landlord, to be recovered, whatever the lord, who amount thereof, by such landlord by action in the court from |^Ynd°™^ Avhich such summons shall have issued, and such landlord, on defend, the receipt of such notice, if not originally a defendant, may be added or substituted as a defendant to defend possession of the premises in (question. 270 APPENDIX. In plaints to recover possession of premises, how sum- monses may be served. Warrants to high bailiffs sufficient to justify them for entering on pre- mises. Such war- rants to be in force for three months from the day named for deliver- ing pos- session. Judges, registrars, bailitTs, or other officers not liable to actions on account of proceedings taken. Where landlord has a law- ful title, he shall not be deemed a trespasser by reason of irregu- larity. 141. A summons for tlie recovery of a tenement may be served like ordinary summonses to appear to plaints in the court, and if tlie defendant cannot be found, and his place of dwelling shall either not be known, or admission thereto cannot be obtained for serving any such summons, a copy of the summons shall be posted on some conspicuous part of the premises sought to be recovered, and such posting shall be deemed good service on the defendant. 142. Any warrant to a bailiif to give possession of a tene- ment shall justify the bailiff named therein in entering upon the premises named therein, with such assistants as he shall deem necessary, and in giving possession accordingly ; but no entry upon any such warrant shall be made except between the hours of nine in the morning and four in the afternoon. 143. Every such warrant shall, on whatever day it may be issued, bear date on the next day after the last day named by the judge in his order for the delivery of possession of the premises in question, and shall continue in force for three months from such date and no longer, but no order for delivery of possession need be drawn up or served. 144. It shall not be lawful to bring any action or prosecu- tion against the judge or against the registrar of the court by whom such warrant as aforesaid shall have been issued, or against any bailiff or other person by whom such warrant may be executed or summons affixed, for issuing such warrant, or executing the same respectively, or affixing such summons, by reason that the person by whom the same shall be sued out had not lawful right to the possession of the premises. 145. Where the landlord at the time of applying for such warrant as aforesaid had lawful right to the possession of the premises, or of the part thereof so held over as aforesaid, neither the said landlord nor his agent, nor any other person acting in his behalf, shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this Act, but the party aggrieved may, if he think fit, bring an action for such irregularity or informality, in which the damage alleged to be sustained thereby shall be specially laid, and may recover full satisfaction for such special damage with costs of the action : Provided that if the special damage so laid be not proved, the defendant shall be entitled to a verdict, and that if proved, but assessed at any sum not exceeding five shillings, the plaintiff shall recover no more costs than damages, unless c. c. ACT, 1888. 271 the judge before whom the trial shall have been hold shall certify that in his opinion full costs ought to be allowed. Part VII. Execution ; Commitment. 146. Whenever the court shall have given or made a judg- Court may award execution ment or order for the payment of money, the amount may be recoverable, in case of defaiilt or failure of payment thereof against forthwith, or at the time or times and in the manner thereby goods. directed, by execution against the goods and chattels of the party against whom such judgment or order shall be given or made ; and the registrar, at the request of the party prosecuting such judgment or order, shall issue under the seal of the court a warrant of execution in the nature of a writ of fieri facias to the high bailiff of the court, who, by such warrant, shall be empowered to levy, or cause to be levied, by distress and sale of the goods and chattels wheresoever they may be found within the district of the court, whether within liberties or without, such sum of money as shall be so ordered, and also the costs of the execution ; and all constables and other peace officers within their several jurisdictions shall aid in the execution of every such warrant. The precise time when an application shall be made to a registrar to issue a warrant against the goods of a party shall be entered by him in the execution book and on the warrant ; and when more than one such warrant shall be delivered to the high bailiff to be executed, he shall execute them in the order of the times so entered {p. 90). 147. Every bailiff or officer executing any process of execu- What goods tion issuing out of the court against the goods and chattels of ^^^^^ ;„ any person may by virtue thereof seize and take any of the execution. goods and chattels of such person (excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade, to the value of five pounds, which shall to that extent be protected from such seizure), and may also seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, belonging to any such person against whom any such execution shall have issued as aforesaid. Securities 148. The high bailiff shall hold any cheques, bills of seized to be 272 APPENDIX. held by hiijhbaililT. Execution after de- fault in instalment may issue for whole sum. Cross judgments. Judgment may be re- moved into the High Court if there are no goods to be taken under it. Priority of executions issuing out of High Court and county court. exchange, promissory notes, bonds, specialties, or other secu- rities for money which shall have been seized or taken under the last preceding section, as a security for the amount directed to be levied by such execution, or so much thereof as shall not Lave Ibeen otherwise levied or raised, for the benefit of the plaintiff ; and the plaintiff may sue in the name of the defendant, or in the name of any person in whose name the defendant might have sued, for the recovery of the sum or sums secured or made payable thereby, when the time of payment thereof shall have arrived. 149. If the court shall have made any order for payment of any sum of money by instalments, execution upon such order shall not issue against the party until after default in payment of some instalment according to such order, and execution or successive executions may then issue for the whole of the said sum of money and costs then remaining unpaid, or for such portion thereof as the court shall order, either at the time of making the original order, or at any subsequent time. 150. If there shall be cross judgments between the parties, execution shall be taken out by that party only who shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum, and satisfaction for the remainder shall be entered, as well as satisfaction on the judgment for the smaller sum ; and if both sums shall be equal, satisfaction shall be entered upon both judgments (jp. 180). 151. If a judge of the High Court shall be satisfied that a party against whom judgment for an amount exceeding twenty pounds, exclusive of costs, has been obtained in a county court, has no goods or chattels which can be conveniently taken to satisfy such judgment, he may, if he shall think fit, and on such terms as to costs as he may direct, order a writ of certiorari to issue to remove the judgment of the county court into the High Court, and when removed it shall have the same force and effect, and the same proceedings may be had thereon, as in the case of a judgment of the High Court ; but no action shall be brought upon such judgment. 152. When a writ against the goods of a party has issued from the High Court, and a warrant against the goods of the same party has issued from a county court, the right to the goods seized shall be determined by the priority of the time of the delivery of the writ to the sheriif to be executed, or of the application to the registrar for the issue of the warrant to be executed ; and the sheriff, on demand, shall, by writing c. c. ACT, 1888. 273 signed by any clerk in tbo office of the under-sheriff, inform tlie higb bailiff of tbc precise time of such delivery of tbe writ, and tbe bailiff, on demand, shall show his warrant to any sheriff's officer, and such writing purporting to be so signed, and the endorsement on the warrant, shall respectively be sufficient justification to any high bailiff or sheriff acting thereon (j;. 185). 153. If it shall at any time appear to the satisfaction of the Power to judge that the defendant in any action or matter is unable, •["gpe„,j' from sickness or other sufficient cause, to pay and discharge executioa the debt or damages recovered against him, or any instalment ^[g°^!|^'"g thereof, it shall be lawful for the judge, in his discretion, to U\ certain suspend or stay any judgment, order, or execution given, made, cases. or issued in such action or matter, for such time and on such terms as the judge shall think fit, and so from time to time until it shall appear that such cause of inability has ceased, or to order the discharge of any debtor confined in prison by order of a court, who, on account of sickness, insanity, or other sufficient cause, ought, in the opinion of the judge, to be discharged. 154. No sale of any goods which shall be taken in execution Reo:ulating shall be made until after the end of the five days at least next ^'^'^ ;^=^'« °^ '' goods following the day on which such goods shall have been so taken in taken, unless such goods be of a perishable nature, or upon execution. the request in writing of the party whose goods shall have been taken ; and until such sale the goods shall be deposited by the bailiff in some fit place, or they may remain in the custody of a fit person approved by the high bailiff to be put in possession by the bailift'; and it shall be lawful for the high bailiff from time to time, as he shall think proper, to appoint such and so many persons for keeping possession, and so many sworn brokers and appraisers for the purpose of selling or valuing any goods, chattels, or effects taken in execution under this Act as shall appear to him to be necessary, and to direct security to be taken from each of them, for such sum and in such manner as he shall think fit, for the faithful performance of their duties without injury or oppression, and the judge or high bailiff may dismiss any person, broker, or appraiser so appointed ; and no goods taken in execution under this Act shall be sold for the purpose of satisfying the warrant of execution except by one of the brokers or appraisers so appointed, and the brokers or appraisers so appointed shall be entitled to have, out of the produce of the goods so distrained T 274 APPENDIX. or sold, sixpence in tlie pound on the value of the goods for the appraisement thereof, whether by one broker or more, over and above the stamp duty, and for advertisements, cata- logues, sale and commission, and delivery of goods one shilling in the pound on the net produce of the sale. Execution 155. lu or upon every warrant of execution issued against ^^d'n^"^ *^'' the goods and chattels of any person whomsoever, the registrar payment of of the court shall cause to be inserted or indorsed the sum of debt and money and costs adjudged and the fees for the execution of such warrant ; and if the party against whom such execution shall be issued shall, before an actual sale of the goods and chattels, pay or cause to be paid or tendered unto the registrar of the court out of which such warrant of execution has issued, or to the bailiff holding the warrant of execution, such sum of money and costs as aforesaid, or such part thereof as the person entitled thereto shall agree to accept in full of his debt or damages and costs, together with the fees inserted or indorsed as aforesaid, the execution shall be superseded, and the goods and chattels of the said party shall be discharged and set at liberty. Claimant 156. Where any claim shall be made to or in respect of any taken°in goods taken in execution under the process of the court, the execution claimant may deposit with the bailiff either the amount of the must de- value of the goods claimed, such value to be affixed by appraise- values or ment in case of dispute, to be by such bailiff paid into court, to pay costs abide the decision of the judge upon such claim, or the sum possession which the bailiff shall be allowed to charge as costs for keeping otherwise possession of such goods until such decision can be obtained, be°sold ^ ^^' ™^y S^'^^ to the bailiff in the prescribed manner security for the value of the goods claimed, and in default of the claimant so doing the bailiff shall sell such goods as if no such claim had been made, and shall pay into court the proceeds of such sale to abide the decision of the judge. Hieh 157. If any claim shall be made to or in respect of any .ai 1 may gQ^^g q^. chattels taken in execution, or in respect of the interplead ° ' _ ■'• where proceeds or value thereof, by any person, it shall be lawful for claims as ^^^ registrar upon application of the high bailiff, as well before taken in ^s after any action brought against him, to issue a summons execution calling before the court as well the party issuing such process as the party making such claim, and the judge shall adjudicate upon such claim, and make such order between the parties in respect thereof and of the costs of the proceedings, as he shall think fit, and shall also adjudicate between such parties, or c. c. ACT, 188S. 275 either of tliem, and tho high bailiff, with respect to auy damage, or claim of or to damages, arising or capable of arising ont of the execution of such jn-ocess by the high bailiff, and make such order in resj^ect thereof, and of the costs of the proceedings, as to him shall seem fit ; and such orders shall be enforced in like manner as any order in any action brought in such court, and shall be final and conclusive as between the parties, and as between them or either of them and the high bailiff, unless tho decision of the court shall be in either case appealed from ; and upon the issue of the summons any action which shall have been brought in any court in respect of such claim, or of any damage arising out of the execution of such process, shall be stayed. 158. In all cases where a warrant of execution shall have How exe- issued against the goods and chattels of any person or an order cution may for his commitment shall have been made, and such person, or of theiuris- his goods and chattels, shall be out of the jurisdiction of the diction of court, it shall be lawful for the high bailiff of the court to send ^^"^ ''°"'"^- the warrant of execution or order of commitment to the registrar of any other court within the jurisdiction of which such person, or his goods and chattels, shall then be or be believed to be, with a warrant thereto annexed, under the hand of the high bailiff and seal of the court from which the original warrant or order issued, requiring execution of the same, and the registrar of the court to which the same shall be sent shall seal or stamp the same with the seal of his court and issue the same to the high bailiff of his court ; and thereupon such last-mentioned high bailiff shall be authorized and required to act in all respects as if the original warrant of execution or order of commitment had been directed to him by the court of which he is the high bailiff, and shall, within such time as shall be prescribed, return to the high bailiff of the court from which the same originally issued what he shall have done in the execution of such pro- cess, and shall, within such time as shall be prescribed, jjay over all moneys received in pursuance of the warrant or order ; and where any order of commitment shall have been made and the person apprehended, he shall be forthwith conveyed, in custody of the bailiff or officer apj)rehending him, to the prison of the court within the jurisdiction of which he shall have been apprehended, and kept therein for the time mentioned in the order of commitment, unless sooner discharged by law ; and all constables and other peace officers shall be aiding and assisting within their respective districts in the execution of such order of commitment. 276 APPENDIX. Judge may 15 9. It shall be lawful for the judge, by any writing bailiil's'to uii ,7, • 1 • T claiming It the interest claimed by such person shall not be cognizable interest by the court, any party may apply to the court or to the High '"^^ "^*^''" Court to have the case transferred to the High Court of Justice (pp. 61, 164). 86. Upon the arrest of any vessel or property an appearance Kule 21, 292 APPENDIX. Appear- ance. Kule 22. Notice of day of hearing. Form 325. Rule 23. Judgment may be signed on non-ap- pearance. Rule 24. Bail liefore registrar or commis- .sioner. Rule 25. Prepara- tion of bail papers by solicitor. Form 322a. Rule 26. Bail before recjistrar. Rule 27. Bail before commis- sioner. Forms 322b.,322c. may be entered in tbe same manner as upon the service of the- summons (j^. 1G4). 87. Where an appearance has been entered the registrar shall upon application by either the plaintitf or the defendant give to each party in the action a notice under the seal of the court, stating the day upon which the action has been directed by the judge to be heard (jj. 16-i). 88. Whei"e no appearance has been entered within the time limited by the summons, the plaintiff shall, on filing an affidavit of due service of the summons, be at liberty to sign final judg- ment for the amount named in the particulars in claims of a liquidated nature with costs to be taxed by the registrar, or interlocutory judgment with costs to be taxed in actions for damages, and in the latter event the damages shall be assessed by the registrar under the rules provided for the assessment of damages (p. 164j. Eelease of Properfi/. 89. Bail in Admiralty actions may be taken before the registrar or his clerk, if nominated by the judge under sec. 83 of the Coimty Courts Act, 1888, or before a commissionei* to administer oaths, but in every case the sureties shall justify, unless the adverse party shall give notice in writing dispensing with affidavits of justification (pp. 87, 88, 165). 90. The bail bond and affidavits of justification shall be pre- pared by the party giving bail, or his solicitor, the latter shall be in the form in the Appendix, with such variations as may be necessary (pp. 87, 88, 165). 91. If bail is to be taken before the registrar, a notice con- taining the names and addresses of the sureties and of the time appointed by him for taking the bail, shall be served by the party giving bail or his solicitor before six o'clock on the day before that which is appointed for taking the bail, and the sureties shall attend at the time appointed for the purpose of executing the bail papers and of being cross-examined as to their means if required ( 2Jp- 87, 88, 165). 92. If bail is taken before a commissioner, notice of such bail shall be given, and an affidavit of service therof filed in the forms contained in the schedule of forms hereto, subject to such variations as may be necessary, but the property shall not be released without consent until the expiration of twenty- four hours from the time of service of such notice (2>P' 87, 88, 165). C. C. ADMIRALTY RULES. 293 '93. On receipt of notice of bail having been taken before a Rule 28 'Commissioner, the property shall not be released, if before the tbur\ours' oxpiration of such twenty-four hours the party requiring such notice bail or his solicitor shall have given notice to the party giving •before bail or his solicitor and to the registrar that he recjuires such sureties to attend before the registrar for the purpose of being cross-examined as to their means ( pp. 87, 88). 94. If in the opinion of the registrar notice of attendance of the sureties for such cross-examination shall have been given without sufficient cause, the costs of their attendance for cross- examination, and the expenses of the detention of the property kept under arrest in consequence of such notice, shall be paid by the party requiring such attendance {pp. 87, 88). 95. Where in an Admiralty action the amount sued for is paid into court, together with costs, or the security completed, or the plaintiff requires it, the registrar shall deliver to the party applying for the same an order directed to the high bailiff of. the court, authorizing and dii'ecting him, upon pay- ment of all costs, charges, and expenses attending the custody of the property, to release it forthwith (pp. 87, 88). 96. Notwithstanding the last preceding rule, the property in an Admiralty action for salvage shall not be released, except with the consent of the plaintiff", until its value has been agreed or an affidavit of value filed on behalf of the party seeking the release, unless the court or the judge shall otherwise ■order {pp. 87, 88). 97. If the plaintiff is dissatisfied with the value mentioned in the affidavit filed under the preceding rule, he shall be entitled to have the value ascertained by appraisement, and for such purpose shall file a prascipe. The costs of such appraise- ment shall be in the discretion of the court { pjp. 87, 88 j. Transfer of Action. 98. Where an action is transferred to another county court Rule 33. or to the High Court by order either of the court in which the 'i'lansfer of nction to action was commenced or of the said High Court, the registrar \{;^\^ Co^,j.t shall transmit the i-ecord of the proceedings to the proper of Justice officer of the court, in the same manner as is prescribed by ^^^^^Z '*^' Order XXXIII., r. 7, of these Eules, for the transmission of court. proceedings transferred under sec. 90 of the Supreme Court Forms 3J(3, of Judicature Act, 1873, and sees. 68 and 126 of the Act "-'• yj.e. County Courts Act, 1888] {pp. 62, 17;'.\ 99. Where the proceedings have been transferred by an Paile 34. Rule 29. Costs of examina- tion of sureties. Rule 30. Release on payment into Court. Form 323. Rule 31. Value of property, how ascer- tained. Rule 32. Appraise- ment. 294 APPENDIX. Order of transfer to be left with resist rar. Rule 3'). Costs ill cross acti may be refused. Rule 3C.. First aiu secoud actions may be tried ti- getht-r. order of|[the High Court, a copy of the order transferring the- proceedings sball bo left with the registrar (pp. 62, 173), Second or Crois Action. 100. Where it shall ap^iear to the judge that the plaintiff in an Admiralty action (hereafter called the second action) was oi- ls the defendant in an action (hereafter called the first action) in another Court arising out of the same transaction, and that he did not propose to the plaintiff in the first action that by agree- ment jurisdiction should be given to the court in which the first action was commenced to hear and determine the second action the judge may, if he shall think fit, refuse the plaintiff in the second action his costs (pp. loo, 160, 168). 101, Where a second or cross action for damage has been commenced by a defendant in an action for damage, and the second action has been commenced, by agreement or otherwise^ in the court in which the first action was commenced, or has been transferred to the said court by order of any other court, the court may direct that both actions may be tried at the same time and upon the same evidence (jii^. 160, 168). Rule 37. Proceed- ings on order against unknown defendant. 31 &32 Vict. c. 71. Rule 38. Proceed- ings on discovery (it'iinknown defendant. Form .">r Rule 39. Service of notice on Enforcement of Orders. 102. Where a judgment or order has been obtained against an unknown defendant, the vessel or property to which the action relates shall not be taken in execution, but it may be arrested and detained under the provisions of sec. 22 of the County Courts Admiralty Jurisdiction Act, 1868, or kept under arrest, if already arrested ( j^l^- ^^j '^Ij 184j. 103. W^here a judgment or order has been obtained in an action against an unknown defendant, and the name of the defendant is subsequently ascertained, the adverse party may deliver to the registrar a prjecii^e stating the name, address, and description of the defendant, and thereupon the registrar shall issue to the solicitor, if such praecipe is delivered through a solicitor, or to the bailiff for service, a notice of the judgment or order, stating thereon that if the defendant does not within four clear days from the day of service deliver a praecipe to the registrar applying for a rehearing of the action, the vessel or property to which the action relates will be sold in execution (p. 91). 104. The notice in the last preceding rule mentioned shall be served personally upon the defendant, unless the Judge or C. C. ADMIRALTY RULES. 295 registrar shall upon facts duly verified upon affidavit allow of defenaant. substituted service (p. 92). t'o^ns 3n, ^-^ '' 31. Execution against Vessel. 105. Where under a warrant of execution a vessel is seized, liulo 4»t. the high bailitf shall, before selling the same, cause an inventory P'o'^eed- and valuation thereof to be made by an appraiser, and the vessel execution shall not be sold for less than the appraised value thereof, against a except by order of the court. The appraiser shall be allowed ""'^^^^ ' lOs. per cent, on the appraised value of the vessel, and a reason- able sum for travelling expenses and maintenance if the vessel is beyond three miles from registrar's office (^pp. 90, 165, 184), 106. On the completion of the sale the high bailiff shall pay Rule 41. the proceeds arising therefrom into court, return the warrant, I'l'oceeds of and file an account of the sale and of his fees thereon, signed by paid into him, together with the certificate of appraisement signed by the Court. appraiser (j;. 91). 107. On the completion of the purchase the high bailiff" Rule 42. shall deliver up the property to the purchaser, and if required delivery of 1 1 11 1 Ml /. 1 1 property to SO to do shall execute a bill ot sale to him at the expense of the purchaser. purchaser (^p. 91). 108. The costs of the solicitor suing out execution to be Rule 4o. taxed by the registrar shall be allowed and be recoverable ^°**^ *?' , ,1 , , 1 . . r execution. against the property taken m execution {p. 91). Transfer of Sale. 109. Where the vessel has been arrested or has been seized Rule 44. under a warrant of execution, and the sale of the vessel has Proceed- been ordered to be transferred to the High Court, the vessel ti.fn<;f"i. of shall be retained by the high bailiff" until the marshall shall, sale. by order of the High Court, take possession thereof {^pp. 92, 184). 110. The party desiring that the sale of any vessel or pro- Rule 45 perty shall be conducted in the High Court of Justice, may at Applica- any time after judgment give security to the amount of £10, tJ°ns\^^i. ^f and deliver to the registrar an application for an order for the proceedings transfer of the proceedings for sale to the said High Court ^^^ ®^^®- {pp. 92, 111, 184). 111. The registrar shall transmit the application in the last Paile 46, preceding rule mentioned to the judge for his order thereon, if ^Ppl'ca- the court is not sitting, and shall in any case certify on the trans- 2i)6 APPENDIX. niitted to judge. Form 332. Rule 47. Notice of defence in actions for damage bj- collision. Rule 48. Notice of proposed tender. Form :533. Rule 49. Notice of acceptance of tender. Rule 50. Costs may be ta.ved thereon. Rule 51. Payment DUt of court to solicitor. Rule 52. Retainer of moneys in court where more than one action. application that the security for costs has been given (iHJ. 92, 111, 184). Notice of Defence in Collision. 112. Where in actions for damage by collision the defendant intends to set up as a defence that the vessel was by compnlsion of law in the charge of a pilot, he shall give notice thereof to the adverse party as soon after the service of summons as may be, and if he shall fail to give such notice the judge shall, in exercising his discretion as to costs, consider what effect the non-delivery of the notice has had in the action (p. 167). Tenders. 113. The party desiring to make a tender shall give a notice to the adverse party of the terms and amount of the tender, and shall pay the amount into court, and deliver a praecipe. Money may be paid into court with a denial of liability, in which case the form in the Appendix shall be altered accordingly (p. 169). 114. Within forty-eight hours after the receipt of the notice of any such payment into court the adverse party shall file a notice stating whether he accepts or rejects the tender, and, if he shall fail to do so, he shall be deemed to have rejected it (p. 169). 115. A party accepting a tender shall be entitled to his costs of suit, and shall be at liberty to tax and enforce payment of same without the necessity of an application to the court for the purpose (jA 169). Paijinent out of Court. 116. Money ordered in an Admiralty action to be paid out of court may be paid to the solicitor on the record, without the production of a power of attorney from the party entitled to receive the money, unless the judge shall otherwise order (p. 170). 117. Where more than one action has been commenced against a vessel or any property, and the same has been sold, the proceeds thereof shall be retained in court, to abide the decision of the Court in the various actions, unless the judge shall otherwise order (p. 170). Appraisement. Rule 53. j^g_ rjijj^ registrar may, on the application of either party, ment. and whether before or after judgment, order any property under C. C. ADMIRALTY RULES. 207 arrest to be appraised, and the same allowances shall be made to the ai^praiser as are directed to be allowed by r. 40 of ihis Order (p. 165). Records of the Court. 119. The parties in an action, their solicitors, or the clerks \)f the solicitors, may, while the action is pending, and for one year after its termination, inspect, free of charge, all the records in the action (pp. 93, 188). 120. In a pending action no person other than the parties, their solicitors, or the clerks of the solicitors, shall be entitled to inspect the records in the action without the permission of the registrar (p. 93). 121. In an action which has been finally disposed of any 25ersou may, on delivering to the registrar a praecipe, and on j)ayment of the proper fee, inspect the records in the action (j). 93). Copies. 122. Any person entitled to inspect any instrument or docu- ment in an action shall, on delivering to the registrar a praecipe, and on payment of the proper charges for the same, be entitled 'to an office copy thereof (pp. 94, 188). Rule 54. Inspection of records. Rule 55. Who en- titled to inspection during pendency of action. Rule 56. Thie like on termina- tion of action. Rule 57. Office copies. Assessors. 123. The jmrty requiring the judge at the trial or the registrar on an assessment of damages to bo assisted by one or i;wo assessors, shall at the time of the praecipe pay to the registrar the sum of one guinea for each assessor if the amount claimed does not exceed £100, and two guineas if it does exceed that amount, and such jiayments shall be considered as costs in the action, unless otherwise ordered by the Judge {pp. 76, 77, 173). 124. Where the Judge or the registrar reqiiires the assistance fii two assessors the fees in the last preceding v\\\e mentioned shall be paid by the plaintiff or his solicitor before the trial, and shall be costs in the action, unless otherwise ordered by the Judge (pp. 76, 77, 173). 125. Where the trial or reference is adjourned the plaintift' shall pay the assessors' fees for the day of adjournment forth- with after the order of adjournment is made by the jndge or £.'egistrar, as the case may be (pp. 76, 77, ] 73). Rule 58. Payment on applica- tion for assessors by party. Rule 59. The like on require- ment of judge or registrar. Rule 60. Assessors' fees on adjourn- ment. 298 APPENDIX. Rule 61. Selection of asses- sors. 12G. Upou the delivery of the prgecipe in r. 58 mentioned, or upon the requirement of the judge or registrar, as in r. 59 mentioned, the registrar shall select from the list of assessors the names of two persons whom he may, having refe- rence to the nature of the action to be tried or of the reference to be determined, consider most capable of assisting the judge or registrar in trying and determining it, and shall send to each Fonn 335. of such persons by post a summons according to the form in the Appendix {pp. 76, 77, 173J. 127. The registrar shall pay to every assessor for each day's attendance and service in every action or reference one guinea or two guineas, according as the amount claimed in the action does or does not exceed £100 {pp. 76, 77, 173j. Rule 62. Payment t assessors. Rule 63. Party may admit lia- bility. Form 322d. Rule 64. Notice thereof. Admission of Liahilifij. 128. The defendant may at any time after appearance, and the plaintiff may at any time after the filing of a counter-claim, admit liability in any action except for salvage. Such admis- sion shall be by prteeipe in the prescribed form, which shall be signed by the solicitor for the party, or if signed by the party in person, shall be attested by a solicitor (p. 168). 129. The party filing such precipe shall immediately give notice thereof to the other party or parties in the action, and after receipt of such notice no costs shall be allowed to the party served therewith in respect of the further prosecution of the action so far as regards the question of liability ( jjip. 168). The parties may, before trial, agree that the damages recoverable shall be assessed by the registrar with or without an assessor or assessors {pp. 168, 180, 182). Rule 65. Judge may order reference. Rule 66. Claimant Assessment of Damages. 130. In all actions excepting salvage the judge may, instead of giving judgment for any specified amount, give judgment settling the rights of the parties and order a reference to the registrar or to the registrar and assessors as to the amount, which shall bear interest from such date as the registrar may allow at the rate of 4 jier cent, per annum {pp>. 77, 79, 180, 181, 182). 131. After an order has been made under the last rule, or an admission of liability filed under r. 63, the solicitor for the C. C. ADMIRALTY RULES. 290 claimant shall witliiu seven days file particulars of his claim, shall fil« if not already filed, and all original vouchers, and shall serve P|jrticulars copies thereof on the adverse solicitor ( p}). 79, 101). vouchers. 132. Upon the application of either party the registrar shall ji"'?^^^^;^. fix a time and place for proceeding on the reference and give to appoint at least four days' notice thereof to all parties, and shall time tor summon an assessor or assessors to be present thereat if so ordered by the judge or required by either party or by himself (pp. 77, 70, 181;. _ ^.^ 133. At the time appointed for the reference, if either j^g^j^/j^.^j. solicitor be present, the reference may be proceeded with ; but may pio- the registrar may adiourn the reference from time to time as ceed witli *=" J J or adjoun* he may deem proper {pp. 79, 181 J. ret'ereuce. 134. Witnesses may be produced for examination on the Uuie 69. reference or where a witness resides at a distance of not less lividenee than ten miles from the registrar's office or in any other case gj^g^ ^;^^-. by consent of the parties, evidence maybe given on affidavit, voce ovhy subject to the right of the adverse party to require the deponent ^ '^^' " to any such affidavit to attend the reference for cross-examina- tion, provided that the registrar shall be at liberty to allow the costs of such attendance against the cross-examining party in the event of his considering that it was unnecessarily called for (pp. 79, 181> 135. As soon as possible after the conclusion of the reference Rule 70. the registrar shall report in writing in the form in the schedule ^j^^jj**^''^^' hereto, with such alterations as may be necessary, what amount j-gport. is found to be due in respect of every claim filed, particularizing poj-^^ 3321 _ in a schedule to such report, each amount claimed and allowed, and what part of the costs of the reference (if any) shall be allowed, and to whom. He shall also immediately give notice to both parties that the report has been made. Unless within seven days after the service of such notice as last aforesaid either party shall lodge an objection to the report, the same shall become final and binding on all parties, and judgment shall be entered accordingly (pp. 79, 181). 136. Either party intending to object to the registrar's report Rule 71. shall within the aforesaid period of seven days file in the Objection . . .to report, registry and give to the adverse party or his solicitor a notice of such intention. In such notice he may also request the registrar to state in writing the reasons of the decision, either as regards the whole of the same or of any particular items to be specified in the notice of objection. If a notice of objection is filed, judgment shall not be entered on the report until cither 300 APPENDIX. Kule 72. Kegistrai" shall file reasons. lUile 73. -Vppeal from regis t rar's i'eport. the notice lias been withdrawn or the matter disposed of by the Judge (j)}). 79, 181, 182). 137. Within seven days from the notice of the filing of the objection to the report the registrar shall himself file a state- ment of his reasons as required by the notice, and the report shall be brought up before the judge at the next sitting of the court to be held after the expiration of seven days from the filing by the registrar of such reasons (pj>. 99, 181). lo8. On the matter coming before the judge, a hearing shall take place by way of appeal from the report, and the judge may either vary or confirm such report, or refer the same back to the registrar with any fresh directions as may appear to him to be just, and make such order as to the costs as he may think fit (pp. 79, 182). Rule 74. Oi'ders by oonsent. I'^orm 322i-:, Consent Orders. 139. Any consent in writing between the solicitors in an action 'may by permission of the judge or registrar be filed, and shall thereupon become an order of court, and such order shall be valid as if made by the court (p. 188). Paile 75. Subpoenas issued in blank. Ilule 76. Service in England or Wales. Suhpoenas. 140. A i^arty or his solicitor shall be entitled to issue subi)oenas ad testificandum and dnces tecum under the seal of the Court without inserting the names of the witnesses (p. 173). 141. Service of a subpoena may be effected by a party to the action or his solicitor or agent, or by any person employed by either of them in any part of England or Wales (p. 173). Rule 77. •Service by- post. Service of Notices and Orders. 142. After an appearance has been entered all necessary notices, orders, and other documents may be served by post when the party appearing or his solicitor resides, or carries on business at a distance of more than two miles from the office of the solicitor serving the same ( }). 188). r.ule 78. Costs of necessary letters. r.ule 79. Costs. 1 43. The costs of all necessary correspondence in Admiralty actions shall be allowed by the registrar ( j)- 190). 1 44. When it becomes necessary to employ a solicitor to act as agent out of the jurisdiction of the Court for the purpose of C. C. ADMIRALTY RULES. 301 obtaining the evidence of witnesses attending the trial of an And of action, a reference beft)re the registrar, taxation of costs, or for ^S^ut. any other necessary purpose, the costs of such agent and of instructing him shall be allowed by the registrar (j>. 190). 145. In Admiralty actions where the amount recovered does liule 80. not exceed £20, the costs shall be allowed under column B., -^^"^"■altjr ■I 1 • 1 1 m 1 . -I / - actions. unless the judge shall otherwise order ( jj. 100). 302 APPENDIX. Kxamina- tioii of wit- nesses before trial. "When registrar appointed •examiner. Attendance of persons to produce documents. l-)i.sobedi- ■ence to an order for such at- tendance. Expenses of ])ei-son producing documents. COUNTY COUET KULES, 1889, SPECIALLY EE- FEEEED TO IN THE TEXT. Order XVIII. (See 2). 173.) County Court Eules, 1889. Examinatioiis. 14. Tlie court may, in any action or matter wliere it shall appear necessary for the purposes of justice, make an order for the examination upon oath before the court or any officer of the court, or any other person and at any place in England or Wales, of any witness or person, and may empower any party to any such action or matter to give such deposition in evidence therein on such terms, if any, as the judge may direct. (Form 152, Appendix.) 15. Where the witness mentioned in the last preceding rule resides out of the jurisdiction of the court, the judge may ajjjioint the registrar of the court in the district of which the witness resides to take the examination. 16. The court may in any action or matter at any stage of the jn'oceedings order the attendance of any person for the purpose of being examined, or of producing to or before any examiner any documents which the court may think fit to be produced: Provided that no person shall be compelled to j)roduce under any such order any writing or other document which he could not be compelled to produce at the trial. 17. Any person wiKully disobeying any order requiring his attendance for the purpose of being examined or producing any document to or before an examiner shall be deemed guilty of contempt of court, and may be dealt with accordingly. 18. Any person required to attend before an examiner for the purpose of being examined or of producing any document, shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in court. c. c, RULES, 1889. 303 19. Where any witness or person is ordered to be examined Examiner Ibefore any officer of a county court, or before any person ap- ^ i8 . To Mr. . Yours, etc. Plaintiff's solicitor. Defendant's solicitor.. C. C. ADMIllALTV FORMS. 813 322e. Consent to Ordek. Wejtlie imdersigneJ, solicitors for tbe plaintiff and defendant ^^^^^'^ respectively, hereby consent to an order for . j. 74 Dated this day of , 18 . Plaintiff's solicitor. Defendant's solicitor. 322f. Eegistear's Report. Admiralty Jurisdiction. In the county court of holdeu at No. The" ... . " Whereas by decree in this action, dated the day of Order , 18 (or hij consent of the parties upon an admission of ^. y^ ' ^ liahility, or as the case may he), the damages recoverable by the plaintiff (or by the defendant on his counterclaim) have been referred to me and (2o. Notice op Hearing. Admiralty Jurisdiction. In the county court of holden at {Seal.) [Title ofActio7i]. Take notice, that this action will be heard at a court to be O/Je^i' ^ holden on the day of , at [here state lohere court is to j._%2. be held], at the hour of o'clock in the noon. Dated this day of , 18 . Eegistrar of the court. To the plaintiff and defendant. 326. Order of Transfer to High Court of Justice. Admiralty Jurisdiction. In the county court of holden at (Seal.) [Title of Action.] Whereas it appears that the subject of this action exceeds the Order limit in respect of amount of the Admiralty jurisdiction of this j. '^^^ * * court [or state otherwise as the case may he], it is ordered that this action be transferred to the Probate, Divorce, and Admiralty Division of the High Court of Justice, together with the pro- ceedings that have been had therein in this court. Given under the seal of the court this day of , 18 . By the court, Registrar of the court. 316 APPENDIX. 327. Obdek of Transfer to County Court or the High Court of Justice. Admiralty Jurisdiction. In the county court of Lolden at (Seal.) [Title of Action.] Order Whereas it hath been made to appear that the action could be •^^^^•^- ^- more conveniently prosecuted in the county court of holden at , appointed to have Admiralty jurisdiction [or in the High Court of Justice] it is ordered that this action be transferred to the said court, together with the proceedings that have been had therein in this court. Given under the seal of the court this day of ,18 . By the court, Eegistrar of the court. 328. Judgment in Personam. Adm ira Itij Ju risd ict ion . In the county court of holden at (Seal.') [Title of Actio7i.] It is this day adjudged that the plaintiff, A. B., of , do- recover against the defendant [or defendants], C. D., of , the sum of pounds [m an action for salvage], for services rendered to [state description and name of vessel] ; or in an action for towage, for services rendered in towing the [state description and name of vessel] ; or in an action for necessaries, for necessaries supplied to the [state description and name of vessel] ; or in an action for wages, for wages in respect of services rendered on board the [state description and name of vessel] ; or in an action for damage to cargo, for damage caused to the cargo carried in the [state descripAion and name of vessel]; or in> an action for damage hy cullision, for damage caused to the [state description and name of vessel] by the defendant's vessel, the [state the description and name of the vessel which caused the damage], together with the costs of this action. And it is ordered that the defendant [or defendants] do pay C. C. ADMIRALTY FORMS. 317 the same to the plaintiff or his solicitor within ^lay^, [and that in default thereof the registrar shall upon the ajjplication of the plaintiff or his solicitor issue a warrant of execution against the vessel or property of the defendant]. Given under the seal of this court this day of ,18 . By the court, Registrar of the court. 329. Judgment in Rem. Admira Ity Jurisdiction. In the county court of holden at {Seal) [Title of Action.'] It is this day adjudged that the plaintiff, A. B., of , do recover the sum of pounds [in an action for salvage'], for services rendered to [state description and name of vessel] ; or in an action for toicage, for services rendered in towing the [state description and name of vessel] ; or in an action for necessaries, for necessaries supplied to the [state description and name of mssel] ; or in an action for loages, for wages in respect of services rendered on board the [state description and name of ■vessel] ; or in an action for damage to cargo, for damage caused to the cargo carried in the [state description and name of vessel] ; or in an action for damage by collision, for damage caused to the \_state description and name of vessel] by the defendant's vessel the [the description and name of the vessel lohicli caused the •damage], together with the costs of this action. And it is ordered that [^insert such directions as may he given by the judge]. Given under the seal of this court this day of , 18 . By the court, Registrar of the court. 330. Precipe for a Warrant of Execution. Admiralty Jurisdiction. In the county court of holden at . (Seal.) [Title of Action:] Issue a warrant of execution against the goods of C. D., of 318 APPENDIX. [address and description'], who was ordered by this court, on the day of , 18 , to pay to the plaintiff the sum of pounds for \liere insert for what the sum was ordered to he 2JCiid'\, and who has not paid the said sum as so ordered. Dated this day of ,18. \_To he signed hy the party, his solicitor ^ or the solicitors cleric for him.'] 331. Warrant of Execution against the Vessel or Propekty of Defendant. Admira Ity Jurisdiction. In the county court of holden at {Seal.) [Title of Action.] Whereas on the day of , 18 , the plaintiff obtained a judgment in this court against the defendant for the sum of £ for and costs ; and it was thereupon ordered by the court that the defendant should pay the same to the plaintiff on the day of And whereas default has been made in j)ayment according to the said order. These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels, including the [state description and name of vessel] of the defendant, wheresoever they may be found within the district of this court (except the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of five pounds), the sum stated at the foot of this warrant, being the amount due to the plaintiff under the said order, including the costs of this execution ; and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities, for money of the defendant which may there be found, or such part or so much thereof as may be sufficient to satisfy this execution, and the costs of making and executing the same, and to pay what you shall have so levied to the registrar of this C. C, ADMIRALTY FORMS. 311> court, and make return of what you have done under this warrant immediately upon the execution thereof. Given under the seal of the court this day of 18 . By the court, Registrar of the court. To the high bailiff of the said court, and others the bailiffs thereof. £ s. d. Amount for which judgment was obtaiued . Costs Poundage for issuing this warrant .... Total amount to be levied .... 332. Okdek for Transfer of Sale to High Court of Justice. Admiralty Jurisdiction . In the county court of holden at {Seal.) {Title of Action.'] Whereas in an action instituted in this court on behalf of Order A. B., of , against [state name of defendant^ the judge of XXXIX. e. this court has ordered \Jiere insert the terms of tlie order]. And whereas the plaintiff [or defendant] in the said action is desirous that the sale of the vessel should be conducted in the Probate, Divorce, and Admiralty Division of the High Court of Justice, and has given security for the sum of ten pounds. Now I, A.B., the plaintiff [or C. D., the defendant, or L. M., solicitor], pray that an order to transfer the jiroceedings for sale to the said division of the High Court of Justice do issue. Dated the day of , 18 . [To he signed hy tlie party, his solicitor, or the solicitor's clerk for him.] I hereby certify that the security above mentioned has been duly completed. Registrar of the court. I hereby order the transfer to be made as prayed. Judge of the court. 320 APPENDIX. Order XXXIX. 15, r. 48. 333. Precipe for paying in Money. Admira Ity Jurisdidion. [Title of Action.'] In the county court of holden at I, A. B., of [address and description^ or L. M., solicitor for A. B., of [address and description^, do pay tlie sum of [state sum in letters'] pounds into court in this action [lolien paid hy solicitor, add at the request and by the authority of the said A. B., he having agreed to pay [or tender] the same] in settlement of the claim of the plaintiff" [or, as the case may he]. Dated the day of , 18 . [ To he signed hy the party, his solicitor, or his clerk for him. Order XXXIX. B. r. 6. 334. Solicitor's acceptance of Service op Summons and under- taking TO appear, and to put in or give Bail, &c., &c., to be Indorsed by him on Summons. Admiralty Jurisdiction. I, L. M., of [address], solicitor for C. D., of [address and description^, accept service hereof, and I undertake to appear for the said C. D., according to the exigency of the within summons, and I also undertake within days from the date hereof to put in or give bail herein in a sum not exceeding [state amount for which undertaking given] pounds, or to pay such sum into the county coxirt of holden at , and I consent that all instruments and other documents in this action may be left for me at Dated this day of , 18 . [To he signed hy the solicitor.] C. C. ADMIRALTY FORMS. 321 335. Summons to Assessors. Admiralty Jurisdiction. In the county court of holden at [Title of Action.] (Seal.) You are hereby summoned to appear and serve as an assessor Order in this court at the on the day of ,18 , at ^. Vl. ' * the hour of in the noon, to assist the judge of this court in the hearing and determining of this action, and in default of attendance you will be liable to a penalty of a sum not exceeding five pounds under sec. 15 of the County Courts Admiralty Jurisdiction Act, 1868. Dated this day of , 18 . Registrar of the court. To of 336. Okdeu Fining an Assessor for Non-attendance, Admiralty Jurisdiction. In the county court of holden at (Seal.) [Title of Action.'] Whereas was duly summoned to appear and serve as an assessor at a court holden at on the day of ,18 , and whereas ho has neglected, without sufficient cause shown, to appear and serve as required : It is hereby ordered that he shall forthwith [or on the day of , 18 ] pay to the registrar of this court a fine of £ for such neglect. Given under the seal of the court this day of , 18 . By the court, Registrar of the court. 322 APPENDIX. 337. Admiralty Actions Book. Pro forma. Date. Day. Month. Year. 10 Feb. 18G9 Action for damage by collision, instituted on behalf of A.B., of , against the seliooner named The Kate, lying at , within the district of the court, in the sum of £200. Solicitor for plaintiff, Mr. L. M., of 10 Feb. 18G9 Application made for arrest ; affidavit filed ; warrant issued, the evidence being satis- factory. 11 Feb. 1869 Application for judge's permission for action to be heard at 13 Feb. 1869 Permission granted. 15 Feb. 1869 Appearance entered by C. D., of , solicitor for defendant, R. S., of 18 Feb. 1869 The action liaviDg been heard, the court adjudged that [here set forth the judg- ment]. If amj further proceedings had, they should he entered in the same manner. C. C. ADDITIONAL FORMS. 323 OTHER COUNTY COURT FORMS REFERRED TO IN THE TEXT. 08. {Seep. 146.) Undeetaking by Solicitor to be Responsible fok Costs. [Title of Action.] As solicitor for the above-named plaintiif, I hereby undertake Order V. to be personally responsible for any costs which the said ^' plaintiff may be ordered to pay to the said defendant in this action. Dated this day of , 18 . Solicitor for the plaintiff. 120. Notice of Proposed Sureties. Take notice, that the sureties whom I propose as my security Orlpv in the above action [Jiere stale the proceeding lohic'h has rendered ^^i^- the sureties necessary'] are [here state the full names and addi- tions of the sureties ivhether housekeepers or freeholders, and their residences for the last six months, therein mentioning the county or city, places, streets, and numbers, if any]. Dated this day of , 18 . To the r. '^. 121. Affidavit of Justification. I, , of , one of the sureties for the defendant, OrJ make oath and say, that I am a housekeeper [or freeholder, as ^^^'^" the case may he], residing [dcscribiiig particularly the county or city, the street or place, and the number of the house, if any], that I am worth property to the amount of £ [the amount required by the practice of the court] over and above what will pay my just debts [if security in any other action or for any other purpose, add, and every other sum for which I am now security], that I am not bail or security in any other action XXIX. r. 1. 324 APPENDIX. or proceeding or for any other person [or if security in any other action or actions, add, except for C D., at the suit of E. F., in the court of in the sum of £ , for G. H., at tho suit of I, K., in the court of in the sum of £ , specif ijing the several actions with the courts in tvhich they are brought and the siims in lohich he has become bound] ; that this my property, to the amount of the said sum of £ [and if security in any other action, dc, over and above all other sums for T^'hich I am now security as aforesaid], consists of [here specify the nature and value of the "property in respect of ivhich the deponent proposes to become bondsman as folloivs, stock in trade in my business of carried on by me at of the value of £ , of good book debts owing to me to the amount of £ , of furniture in my house at of the value of £ , of a freehold [or leasehold] farm of the value of £ situate at occupied by or of a dwelling-house of the value of £ situate at occupied by or of other property, particularising each description of properly, with the value thereof], and that I have for the last six months resided at [describing the jjlace of such residence, or if he has had more than one residence during that period, state in the same manner as above directed]. 122. Notice by Eegistrar of Day and Hour upon which Bond to be Executed. Order Take notice, that I have appointed the day of , 18 , at o'clock in the forenoon, at my office, for the and his sureties to execute the bond proposed to be given in the above action. [To be added to notice to obligee: — And further take notice that if you have any valid objection to make to the sureties, or either of them, such objection must then be made.] Dated this day of , 18 . Registrar of the court. To the plaintiff [or defendant] . 14-i. (Seep. 175.) Notice op Postponement of Trial. Orlor XII, I hereby give you notice that the trial of the above action is ^'^- postponed until the day of , 18 , at o'clock C. C. ADDITIONAL FORMS. 325 in tlie forenoon, and if yoii do not attend at tlic court-house at upon the day at the hour mentioned, either in person or by your solicitor, such order will be made and proceedings taken as the judge may deem fit. Dated this day of , 18 . Kegistrar. To the Plaintiff and Defendant. 148a. (Seep. 174.) Order under Section 111 of the County Courts Act, 1888, FINING A Witness for Non-attendance. In the county court of holden at Between A. B., plaintiff, and G. D., defendant. Whereas of was duly summoned to appear as a Order L. b. witness in this action at a court this day holden, and at the '• • time of being so summoned payment [or a tender of payment] of his expenses was made according to the scale of allowance settled by the rules of practice of the county courts : And whereas he has neglected, without sufficient cause shown, to appear at the court [or to produce (^here describe ivJiat he was required by such summons to produce)] : [* or Whereas being this day present in court, and being required by the court to give evidence in this action, refused to be sworn or to make affirmation [or after being duly sworn] [or after having made affirmation] refused to give evidence [or to produce] (^here describe what he loas reqidred and bound to produce) ] : It is hereby ordered that the said do forfeit and pay a fine of £ for such neglect [or refusal] : And it is ordered that the said do pay the said sum of £ to the registrar of the court on the day of [or by instalments of for every days, the first in- stalment to be paid on the day of ] : And in default of payment of the said sum according to this order, payment thereof may be enforced, upon the order of the judge, pursuant to section 167 of the County Courts Act, 1888, by distress and sale of the goods of the said A. B. under warrant of execution, oi*, in default or in lieu of distress, by * Where witness is present in court, commence form here. .326 APPENDIX. imprisonment of the said A. B. for any period not exceeding the period which under the Summary Jurisdiction Acts may bo imposed in respect of the default of sufficient distress to satisfy a similar sum adjudged to be paid on summary conviction. Given under the seal of the court this day of By the court, Registrar. [or It is ordered that the said do on or before the day of produce and leave with the registrar of this court at his office situated at the following [describe luhat he was required and bound to produce^. Given under the seal of the court this day of , 18 . By the court, Registrar. 149a. Wareant of Execution against the Goods of a Witness FOR A Fine. Order L. B, Whereas was duly summoned to appear as a witness in r- 8. this action at a court holden at on the day of , 18 , and at the time of being so summoned payment [or a tender of payment] of his expenses was made according to the scale of allowance settled by the rules of practice of the county courts; and whereas he neglected, without sufficient cause shown, to appear at such court [or to produce] [here describe what he ivas required and bound to produce'] : [Or Whereas being present in court on the day of , 18 , and being required by the court to give evidence, refused to be sworn or to make affirmation [or after being duly sworn] [or after having made affirmation] refused to give evidence [or to produce, &c.] : And whereas it was thereupon ordered by the court that the said should forfeit and pay a fine of £ for such neglect [or refusal] : and it was ordered that the said should pay the said sum of £ to the registrar of the court on the day of [or by instalments of for every days, the first instalment to be paid on the day of ] : And that in default of payment of the said fine according to the said order, payment thereof might be enforced, upon the C. C. ADDITIONAL FORMS. 827 order of tae judge, pursuant to sec. 167 of the County Courts Act, LS88, by distress and sale of tbc goods of the said under warrant of execution : And whereas the said fine has not been paid according to the said order, and the judge of this court has ordered it to be levied as hereinafter mentioned : These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the said A. B., wherever they may be found within the district of this court [except the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of five pounds] the sum stated at the foot of this warrant, being the amount remaining unpaid under the said order, and the costs of this warrant : and also to seize and take any money or bank notes, whether of the Bank of England or of any other bank, and any cheques, bills of exchange, promissory notes, bonds, specialties, or secui'ities for money belonging to the said A. B. which may be there found, or such part or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same, and to pay what you shall have so levied to the registrar of this court, and to make return of what you have done under this warrant imme- diately upon the execution thereof ; and if no sufficient distress can be found to certify the same to the registrar of this court. Given under the seal of the court this day of ,18. By the court, Eegistrar. To the high bailiff of the said court, and others the bailiffs thereof. £ s. d. Amount of fine adjudged ....... Paid Remaining due .......-• Poundage for issuing this warrant ..... Total amount to be levied Notice. — The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, vmless they be of a perishable nature or at the request of the said Application was made to the Eegistrar for this warrant at minutes past the hour of in the noon of the day of 18 . 328 APPENDIX. 149b. Commitment in Default of Distress foe Fines on Witness UNDER Sec, 111, County Courts Act, 1888. In the county court of liolden at Between A. B., plaintiff, and C. D., defendant. Order L. B. To the liigli bailiff and others the bailiffs of the said court r. 8. j^j^^ all peace ofiScers within the jurisdiction of the said court, and To the governor of [prison used hy the court] : Whereas was duly summoned to appear as a witness in this action at a court holden at on the day of , 18 , and at the time of being so summoned payment [or a tender of payment] of his expenses was made according to the scale of allowance settled by the rules of practice of the county courts; and whereas he neglected, without sufScient cause shown, to appear at such court [or to produce] [here describe ichat he teas required and hound to produce'] : [Or Whereas being present in court on the day of , 18 , and being required by the court to give evidence, refused to be sworn or to make affirmation [or after being duly sworn] [or after having made affirmation] refused to give evidence [or to produce, &c.] : And whereas it was thereupon ordered by the court that the said should forfeit and pay a fine of £ for such neglect [or refusal] : and it was ordered that the said should pay the said sum of £ to the registrar of the court on the day of [or by instalments of for every days, the first instalment to be paid on the day of ]. And that in default of payment of the said fine according to the said order, payment thereof might be enforced, upon the order of the judge, pursuant to sec. 167 of the County Courts Act, 1888, by distress and sale of the goods of the said under warrant of execution, or, in default or in lieu of distress, by imprisonment of the said for any period not exceeding the period which under the Summary Jurisdiction Acts may be imposed in respect of the default of sufficient distress to satisfy a similar sum adjudged to be paid on summary conviction.* And whereas default having been made in payment of the sums due under the said order, the high bailiff and others, the C. C. ADDITIONAL FORMS. 329 bailiffs of tliis court, were by warrant of execution dated tlie day of , and issued by order of the judge, required to levy the sum of £ by distress and sale of the goods and chattels of the said A. B. And whereas it appears that no sufficient distress whereon to levy the said sum could be found [and that a balance of £ is due under the said order]. It is hereby ordered that the said A. B. be imprisoned in Her Majesty's prison at , and there kept for the space of , unless the said sum of £ remaining due under the said order, and the costs of the said distress, and the costs of this warrant be sooner paid : And these are therefore to require you, the said high bailiff, bailiffs, and others, to take the said A. B. and to deliver him to the governor of the above named prison, together with this warrant, and you the said governor to receive the said A. B. into your custody, and him safely to keep in the said prison for the space of , unless the sum stated at the foot of this warrant, being the amount remaining due under the said order, and the costs of the said distress, and the costs of this warrant be sooner paid. Given under the seal of the court this day of ,18. Judge of the court. £ s. d. Amount remaining due under order Costs of warrant of execution ...••• Poundage for issuing the warrant Total sum upon payment of wliicb prisoner will be discharged 149c. Commitment in Lieu of Distress foe Fine on Witness under Section 111, County Courts Act, 1888. [Folloio Form 149b down to *, then proceed as folloics :—] And whereas default has been made in payment of the sums Order L. b. due under the said order, and the sum of £ remains due Tinder the said order. And whereas it appears to this court that the said A. B. has no [sufficient] goods whereon to levy distress [or that the levy of a distress will be more injurious to the said A. B. and his family than imprisonment]. It is hereby ordered that the said A. B. be imprisoned in Her Majesty's prison at , and there kept for the space of , 330 APPENDIX. unless the said sum of £ remaining due under the said order and tlie costs of his commitment be sooner paid. And these are therefore to require you, the said high bailiff, bailiffs, and others, to take the said A. B. and to deliver him to the governor of the above named prison, together with this warrant, and you the said governor to receive the said A. B. into your custody, and him safely to keep in the said prison for the space of , unless the sum stated at the foot of this warrant, being the amount remaining diie under the said order, and the costs of this warrant be sooner paid. Given under the seal of the court this day of Judge of the court. £ s. d. Amount remaining due under order Poundage for issuing this warrant Total sum upon payment of which prisoner will be discharged 152. Order for Examination of Witnesses before Trial. Order Upon hearing and upon reading the affidavit of XVIII. filed the day of , 18 , and It is ordered that a witness on behalf of the be examined viva voce (on oath or affirmation) before \Jiere insert name of person appointee^, the solicitor [or agent] giving to the solicitor [or agent] notice in writing of the time and place where the examination is to take place. And it is further ordered that the examination so taken be filed with the registrar of this court at his office situate at , and that an office copy or copies thereof may be read and given in evidence on the trial of this action, saving all just exceptions, withoixt any further proof of the absence of the said witness than the affidavit of the solicitor or agent of the as to his belief, and that the costs of this aj)plication be 275. Summons to Parties to attend upon taking Accounts. Order Let all parties concerned attend me at my chambers XXIV. ^jj |.jj^ ^g^y ^£ , 18 , at o'clock in the forenoon, to proceed with the accounts and inquiries directed by the judgment or order herein, dated the day of ,18 . Dated this day of Registrar of the court. MISCELLANEOUS FORMS. 331 OTHEE MISCELLANEOUS FOKMS. Adapted by the Authors from forms used in actual practice, but not published by authority. Form of Instrument of Appeal. In the High Court of Justice, Prolate, Divorce, and Admiralty Division. On Appeal from the City of London Court {^Admiralty Jurisdiction). Between The owners of the sailing barge " . . . " and The owners of the sailing barge " Appellants. Respondents. The and the Take notice that the above-named appellants, the owners of the sailing barge , hereby appeal to the Probate, Divorce, and Admiralty Division of the High Court of Justice, from the final decree or order of the judge of the City of London Court, made in an action between and the respective owners of the sailing barges and , on the day of , whereby judgment was entered for the plaintifi's against the appellants, the owners of the sailing barge ^ for the damages sustained by the plaintiffs by reason of a collision between the plaintiffs barge, the , and the sailing barge, the , owned by some of the respondents, and by reason of a subsequent collision between the barge and the tug and her tow, and whereby judgment was entered for some of the respondents, viz. the owners of the sailing barge with costs against the above-named plaintiffs, and whereby it was adjudged that the plaintiffs should recover against the appellants the costs of the said action, and also all costs which the plaintiffs should pay or become liable to pay to the respondents, the owners of the barge , under and by virtue of the said final decree or order, and the said owners of the barge , the appellants herein, will move the High Court that the said final decree or 332 APPEXDIX. order may be reversed, and tliat judgment may be entered for the owner of the barge , or that sncb further or other order may be made as this honourable court may deem fit, and that the costs of this appeal and of the said action in the Oity of London Court may be paid by the said plaintiffs and the respondents, the owners of the barge , or either of them. Dated this day of To the respondents, the owners of the and to their solicitors , and to the owners of the and their solicitors. Form of Draft Interrogatories. In the City of London Court (^Admiralty Jurisdiction^. No. of action Between .... j)laintiff's, and The owners of " .... " defendants. Interrogatories on behalf of the above-named defendants for the examination of the above-named plaintiff's. 1. Did the sailing barge or vessel come into collision with the sailing barge or vessel on the day of , 189 , or on some other, and what date ? If yea, set forth the exact time and place of such collision, the state of the weather, the state and force of the tide, and the direction and force of the wind at such a time. 2. From and to what place or places was the bound at the time of such collision, and was she laden with cargo ? If laden, set forth the nature and quantity of cargo on board and how it was stowed, and state her draught of water fore and aft. 3. State who had charge of the at the time and shortly before such collision, and where such persons were stationed. How many people were on deck when the was first sighted, and at the time of the collision respectively ? Was the at any time and when reported, and in what terms ? 4. Give the distance and bearing in points of the from the when those on board the first sighted the , and by whom was she so first seen, and where was such person stationed. In what part of the river or channel, and opposite what pai-t of the shore, and how far down the reach do you allege the then was, and how was she heading ? MISCELLANEOUS FORMS. 383 5. What do you allege was the heading and course of the , and on which tack and in what part of the channel was she when the was first seen ? Opposite what part of the shore was the then ? 6. What do you allege was the speed of the through. the water and over the ground at the time she was first sighted by those on board the ? 7. What was the speed of the through the water and over the ground at the time those on board first sighted the ? 8. What alterations were made in the course, tack, speed, or heading respectively of the from the time the was first sighted up to the time of the collision ? If you allege any alterations were made as aforesaid, set forth specifically what the same were, and give the distance and bearing of the on the occasion of each alteration, 9. Do you allege that any alterations or alteration was or were made in the course, tack, speed, or heading of the from the time she was first sighted by those on board the to the time of collision ? If yea, set forth what you allege the same was or were, and give the distance and bearing of the on the occasion of each alteration. 10. How do you allege the said collision was brought about? If you lay the blame on the , set forth specifically any acts of negligence you allege against her. 11. State what measures (if any) were taken by those on board the to avoid the collision, and give the distance and bearing of the from the when such measures were taken. 12. State what parts of the vessels first came into contact, and how they cleared. If you allege the or her cargo, sustained any damage through the said collision, set forth what such damage was. 13. In what direction with regard to the banks of the river and up and down stream do you allege the head of the and the head of the were respectively pointing at the time of the collision, and give the respective headings of the two vessels by the points of the compass at the moment of the collision ? 14. In what part of the river do you allege the said collision occurred, and in what reach or channel, and off what spot on the banks of the river? State whether you allege the same 334 APPENDIX. occurred in mid-clianiiel or on either side of it, and how far from mid-channel. 15. How long do you allege it was from the time the was first sighted by those on board the to the time of the collision ? 16. Do you allege there was any hailing or signalling, and if any, what from those on board the to those on board the , or from those on the to those on board the before the collision ? If yea, give the distance and bearing of the from the when such hailing or signalling took place. 17. What do you allege was the speed of the and the at the time of the collision, and at what angle did they strike one another ? 18. Do you allege that the failed to comply with any of the rules or bye-laws for the regulation of the navigation of "the river Thames, and if so, which of them ? The plaintiffs are required to answer the whole of the above interrogatories, and in so far as their personal knowledge does not extend they are required to make inquiries and to obtain information, and to answer to the best of such knowledge, information, and belief. Delivered this day of ,18 , by , Solicitors. SCALES OF COSTS. 33i COSTS. Lower Scale. Costs to he paid to Solicitors in Actions and Matters, as loell between Parly and Party as between Solicitor and Client, luJiere the Amount recovered exceeds £2 and does not exceed £10. 1. Where the particulars and coijies are signed pursuant to Order VL, r. 10a (see p. 83), and the amount claimed exceeds £2 and does not exceed £5, there may be entered upon an ordinary summons, and upon a default summons, four shillings, unless the latter is to be served by a solicitor, when seven SHILLINGS shall be entered. Where the particulars and copies are signed by a solicitor, and the amount claimed exceeds £5 and does not exceed £10, there may be entered upon an ordinary summons, and upon a default summons, eight shillings, unless the latter is to be served by a solicitor, when thirteen shillings shall be entered. Where the amount recovered exceeds £2 and does not exceed £5, a solicitor for a plaintiff shall be allowed for preparing for and attending trial, or upon an aj)plication for a new trial, SEVEN shillings, and where the sum recovered exceeds £5 and does not exceed £10, ten shillings. Where the action is withdrawn, or the amount claimed is paid into court less than five clear days before the return day, there may, if the judge or registrar so orders, be allowed to the solicitor, upon his application, five shillings, or such portion of the fees for preparing for and attending trial as the judge or registrar may under the circumstances direct. 336 APPENDIX. 5. Where the amount claimed exceeds £2 and does not exceed £10, there shall be allowed to a solicitor, for entering up judg- ment on a default summons, or under Order IX., r. 4, three SHILLINGS and fourpence. 6. Where the amount claimed exceeds £2 and does not exceed £5, the solicitor shall be allowed, for instructions preparing defence and attending trial, ten shillings, and where the sum claimed exceeds £5 and does not exceed £10, fifteen shillings, or upon an application for a new trial, skven or ten shillings, according to the amount claimed. 7. Where the action is tried by the judge with or without a jury, the costs of preparing for and attending trial may be increased to a sum not exceeding onk pound, on a special order of the judge in such action to be entered in the Minute Book. 8. The judge may in like actions by special order to be entered in the Minute Book allow a fee of £l 3s. 6d. for the employ- ment of a counsel. 9. Where a trial is adjourned by the court for want of time, one half of the fees mentioned in clauses three and six may bo allowed in respect of that day's attendance if the judge or registrar shall so direct. 10. In the case of a plaintiff where the amount recovered, or in the case of a defendant where the amount claimed, exceeds £2 and does not exceed £5, the solicitor shall be allowed for attending court when the action is referred three shillings, for attending before the arbitrator ten shillings, and for attending court entering judgment upon the award three shillings, and where the amount claimed or recovered exceeds £5 and does not exceed £10, the sums of six shillings, fifteen shillings, and six shillings respectively shall be allowed. N.B. — No other costs are to be allowed than the above where the amount claimed does not exceed £10, unless the judge certifies under sec. 119 of the County Courts Act, 1888, or otherwise orders pursuant to Order L. a. SCALES OF COSTS. 337 Higher Scale. to be paid to Solicitors in Actions and Matters, as icell between Party and Party as between Solicitor and Client, where the Subjeci-Matter or the Sum recovered exceeds £10. Where the subject-matter or the sum recovered exceeds £ .ie8, notice, and service Where the subject-matter or the sum recovered exceeds 5. d. Exceeds 50 £ s. d. 10 £ s. d. 20 and does not exceed 20 50 A. B. £ s. cl. 5 15 10 5 £ s. d. \ _ £ 8. d. 10 6 8 110 15 6 8 6 8 3 to 6 4 10 6 8 1 to 2 1 10 6 8 to 13 4 6 8 6 346 APPENDIX. Where the subject-matter or the sum recovered exceeds £ s. d. \ £, s. d. 10 I 20 and does not exceed 50 20 A. B. Exceeds 50 Fees to Counsel. Note. — Fees to counsel are not to be allowed unless the pay- ment of them is vouched by the signature of counsel. 85. With brief, sum paid not to exceed Note. — The maximum is not to be allowed as of course, but in assessing the fee to be allowed, the length of the brief, the documents (if any) to be perused and considered, the number of the witnesses, and the diflSculties of fact or law involved, must be considered. 86. In the cases mentioned in Order L. A., r. 7, where there is no local bar in the court town, or within twenty miles thereof, a further fee may be allowed by order cf the judge, if in his opinion the maximum fee allowable on the brief is insufficient, not exceed- ing (seep. 191) . . . . Note. — This item is not to be allowed in any court within twenty-five miles of Charing Cross. 87. On conference, if the fee was marked on the brief when de- livered, and in the opinion of registrar necessary (see p. 191) . 88. Where the trial is commenced, but not concluded, on the day on which it is first heard, or is ad- , journed for want of time, for eacli day or part of a day on which it is afterwards heard a refresher may be allowed, unless the judge otherwise orders (see ^'^ 191) 89. Where trial is adjourned upon payment of the costs of the day, there may be allowed as part of such costs 90. With brief on further considera- tion oT argument 91. With brief on any interlocutory motion or application if judge certifies for counsel £ s. d. 2 4 6 £ s. d. 3 5 6 2 4 6 1 3 6 13 6 1 3 6 16 1 3 6 to 2 4 6 3 6 to 4 6 3 6 to 4 6 3 6 £ s. d. 5 10 2 4 6 16 2 4 6 to 3 5 6 4 6 to 5 6 4 6 to 5 6 4 6 SCALES OF COSTS. 347 Where the subject matter or the sum recovered exceeds £ s. d. I £ s. d. 10 I 20 and does not exceed 20 I 50 A. B. 92. With brief before an arbitrator, or on an inquiry or Admiralty refe- rence before the registrar,if judge certifies for counsel, not exceeding Note. — This fee is not to be allowed, if the reference or inquiry was directed at the trial, and counsel was then instructed. A refresher may be allowed instead pursuant to item 88 (see p. 191). 93. In the cases mentioned in Order L. A., r. 7, for settling petitions particulars, statement of defence, interrogatories, or other matters required in the course of the action or matter, if allowed by order of the judge (see p. 191) . 94. Advising on evidence, if allowed by order of the judge . Plans, Models, etc. 95. Plans, charts, or models for use of judge at trial, if allowed by order of judge, not exceeding in the whole Letters, etc. 96. Letter before action 97. Letters in lieu of attendance which could be properly allowed under item 63 ... . 98. Circular letters .... 99. Costs for searches for certificates of births, marriages, and deaths, and payments therefor, and other disbursements in relation to procuring office copies or other documentary evidence not other- wise provided for which the registrar may upon taxation think necessary and proper, such sum as the registrar shall deem reasonable ..... 100. Oaths, sums paid unless other- wise provided for . . . 101. In addition to the above an allowance may be made for the necessary expenses of postages, carriage and transmission of documents, not exceeding £ s. d. 110 3 6 £ 8. d. 2 4 6 1 3 6 13 6 2 2 5 s. d. Exceeds 50 £ s. d. 3 5 6 13 6 to 2 4 6 2 4 6 3 3 3 6 3 6 3 6 3 6 1 1 10 348 APPENDIX. Allowances to Witnesses. Ordinary Witnesses. Gentlemen, merchants, bankers, and professional men, per diem from Tradesmen, auctioneers, accountants, clerks, and yeomen, per diem ..... from Artisans and journeymen, per diem . . from Labourers, and the like, per diem . . from Females, according to station in life . . from Expert and Scientific Witnesses. d. £ 8. d. 15 to 1 1 7 6 to 15 4 to 7 G 3 to 4 2 6 to 10 6 If Costs taxed on Column B of Scale. If on Column C of Scale. For qualifying to give evidence Attending court on trial, per diem Total of Items of Costs to be entered on Summons for Amounts exceeding £10, where the Particulars and Copies are signed by the Solicitor. The total amount to be entered on an Ordinary Summons shall be the following, and no more, viz. : — Totals £ s. d. Where the amount sought to be re- covered exceeds £10 and does not exceed £20, and the claim is a debt or liquidated demand .... In other claims Item 1 „ 20 „ 54 ., 96 Item 2.060' „ 20 . 3 4 „ 54 . 3 4 „ 96 . 3 6 "Where the amount sought to be re- j Item 1.070 covered exceeds £20 and does not I „ 20 . G 8 exceed £50, and the claim is a debt j „ 54 . 6 8 or liquidated demand . . . . ( „ 96 . 3 6 14 2 16 2 1 3 10 SCALES OF COSTS. 349 Totals, s. d. £ s. d. ( Item 2 . 12 | In other claims ■ " 54 6 8 1 ^ ^ ^*^ t :; 9(3 . 3 G ^u + w f 1, r Item 1 . 10 1 Where the amount sought to be re- I ^o 13 4 I covered exceeds £50, and the claim is| " g. ' ^ ^ j^>113 6 a debt or liquidated demand . .1 " qk 3 6 I iltem 2.110) „ 20 . 13 4(0 . f. 54 0681 ]] 96 ! 3 oj The total amount to be entered on a Default Summons shall be the following, and no more, viz. : — Where the amount sought to be re- 1 covered exceeds £10 and does not exceed £20, and service is to be made ' by a bailiff Where service is to be made by a solicitor <; "on ' 1 nf ^ ^ ^ Where the amount sought to be re- covered exceeds £20 and does not 1 " gg ' 6 8 J 1 10 6 exceed £50, and service is to be made by a bailiff Where service is to be made by a solicitor ~j " SS 681 Item 1 . 4 „ 20 . 3 4 „ 38 . 4 „ 54 . 3 4 „ 96 . 3 6 Item 1 . 4 0^ „ 14 . 5 „ 20 . 3 4 „ 38 . 4 „ 54 . 3 4 ^ „ 96 . 3 6 Item 1 . 7 „ 20 . 6 8 „ .38 . 6 8 „ 54 . 6 8 „ 96 . 3 6 • Item 1 . 7 1 „ 14 . 5 ' „ 20 . 6 8 „ 38 . 6 8 „ 68 . 6 8 > „ 96 . 3 6 18 2 jj.B. — Where the amount sought to be recovered exceeds £10, Items 15 and 17 may be added where the service for which eacli of them is given is performed. [Note. — Upon judgment being entered upon a default summojis for a sum exceeding £10, only Items 39 and 62 are to he allowed in addition to the above.'] 350 APPENDIX. COURT FEES. Tkeasury Order Regulating, 1889. In pursuance of the powers given by the County Courts Acts, and of all other powers enabling us in this behalf, we, the undersigned, two of the commissioners of her Majesty's Treasury, whose names are hereunto subscribed, do hereby, with the consent of the Lord Chancellor, order that, on and after the 1st day of February, 1889, the several fees, or sums in the name of fees specified in the schedules hereunder written, shall be taken on the proceedings thei'ein mentioned, in lieu of all other fees for the proceedings set forth ; and that the fees so authorized to be taken, with the excej^tion of the fees mentioned in Schedule B shall be received by the registrars of the different county courts, and shall be accounted for and paid over by them to the treasurers of their respective courts, or where there is no treasurer the superintendent of county courts, and that the fees set forth in Schedule B shall be received by the registrars for the use of themselves and of the high bailiffs according as the duties are to be performed by the registrars or high bailiffs. Herbert Eustace Maxwell. Sidney Herbert. 1st January, 1889. I approve of the annexed Schedule of Fees. Halsbury, C. \_An Order or Bule referred to in the following Schedules shall mean the Order or Bule so numbered in the County Court Bules, 1889.] Note. — The words in quotation marks are additions and amend- ments contained in a Treasury Order of May 3, 1895. Schedule A. For every plaint or petition, one shilling in the pound. Where the claim or demand exceeds forty shillings, and an COURT FEES. 351 ordinary * summons is to bo served by bailiff, an additional fee of one shilling. Where in any case the number of defendants shall exceed three, an additional fee of one shilling for each defendant above three. No fee shall be payable on any application for a new trial, or to set aside proceedings, or for a summons in an inter- pleader. For entering judgment by consent under sees. 98 or 99 of the County Courts Act, 1888, or under a default summons, one shilling in the pound on the amount claimed in the summons. For every hearing, two shillings in the pound. To be charged once only in an action, unless a new trial ordered. " Where before an action or matter is called on for trial, or in opening his case when called on, the plaintiff abandons any part of his claim, the hearing fee shall be charged only on the reduced amount which the plaintiff seeks to recover after such abandonment, including therein the amount (if any) paid into court, or otherwise admitted by the defendant." In all cases where the defendant shall either personally, or by his solicitor or agent, admit the claim, " or where the judge or registrar accepts a letter addressed to the court as an admis- sion of the claim," one half of the fee paid by the plaintiff for the hearing of the plaint shall be returned to the plaintiff by the registrar of the court, although the court may have been required to decide upon the terms and conditions upon which the claim is to be paid. An additional hearing fee shall be taken for every new trial. " The hearing fee on interpleader shall be prepaid by the claimant, and shall be estimated on the amount of the money in court or in the hands of the sheriff, or the assessed value of the goods claimed, or, if such value has not been, assessed, the value put upon them by the claimant, plus in either case the amount of the damages (if any) claimed : and the judge at the hearing shall direct by whom such fee shall be ultimately borne." No fee shall be payable for hearing any application for a new trial, or to set aside proceedings. For issuing every warrant, eighteenpence in the poimd. For every judgment summons under the Debtors Act, 186^,. upon a judgment or order of a county court, threepence in the pound on so much of the amount of the original demand and * This fee is not to be taken where a default summons is issued. 352 APPENDIX, costs as, in obedience to tlie order of the court, should have been paid at the time of the issue of the summons. Where such Last-mentioned amount does not exceed twenty shillings, an additional fee of sixpence ; and where such amount does exceed twenty shillings, an additional fee of one shilling. For every hearing of the matters mentioned in any judgment summons, sixjjence in the pound on the amount upon which the fee on the summons would have been calculated had the summons been issued upon a judgment or order of a county court. For issuing every order of commitment upon a judgment or order of a county court, eighteenpence in the pound on the amount upon which the fee on the hearing is calculated. All poundage, except where otherwise herein specified, shall be estimated upon the amount or value of the subject-matter of the proceeding upon which it is payable, except where the said amount or value exceeds twenty pounds, when the poundage shall be estimated on twenty pounds only. In plaints under sees. 59 and 60 of the County Courts Act, 1888, poundage shall be estimated as upon a claim for a sum of twenty pounds. In garnishee actions the poundage shall be estimated on the amount of the debt attached, or of the judgment debt, which- ever is the less. In replevins all poundage, except as aforesaid, shall be estimated on the amount of the alleged rent or damage to be fixed by the registrar. In plaints for the recovery of tenements when the term has expired or been determined by notice, all poundage, except as aforesaid, shall be estimated on the amount of the weekly, monthly, quarterly, half-yearly, or yearly rent of the tenement, as such tenement shall have been let by the week, or by the month, or for any longer period ; and if no rent shall have been reserved, then on the amount of the half-yearly value of the tenement, to be fixed by the registrar. Where a claim for rent or mesne profits, or both, is added to a plaint for the recovery of a tenement, an additional poundage shall be taken on the amount or amounts so claimed, but where thereby the total amounts on which poundage would be taken shall exceed twenty pounds, the poundage shall be estimated on twenty pounds only. In plaints for the recovery of tenements for non-payment of COURT FEES. oo.y rent, all poiindagc, except as aforesaid, shall be estimated on the amount of the half-yearly rent of the tenement. In proceedings under the Merchant Shipping Act, 1854 (now 3L S. Act, 1894, see sec. 745 (c)), the Literary and Scien- tific Institutions Act, 1854, and the Metropolitan Buildings Act, 1855, the poundage shall be estimated upon the amount in dispute, and if no amount is in dispute, or if the amount in dispute is not ascertained, then as upon a claim for a sum of twenty pounds. In proceedings under the Succession Duty Act, 1850, the poundage shall be estimated upon the amount in dispute. In proceedings under the Friendly Societies Act, 1875, or under any Act giving the court jurisdiction in any matter, such other Act not being a County Courts Act, the poundage shall be estimated upon the amount in dispute. In every case where the poundage cannot be estimated by any rule in this schedule, it shall be estimated on twenty pounds. All fractions of a pound, for the purpose of calculating poundage, shall be treated as an entire pound. No increase of fees shall be made by reason of there being more than one plaintiff or defendant, except as before directed, where the number of defendants exceeds three. £ s. d. For every sitting under tlie Ballot Act, 1872 . . . . 2 U For taking the acknowledgment of a married woman, where only one . . . . . . . . . . .10 And 10?. for every additional woman. For a warrant to replevy 2 G For a replevin bond or deposit, where the alleged rent or damage does not exceed £20 10 G For a replevin bond or deposit, where the alleged rent or damage exceeds £20 110 For notice to distrainor 2 6 For every subpoena to bo served by a bailiff in a home district; if served witliin two miles of court-house . . . . 1 O' For every mile beyond two 6 but the total fee to be taken is in no case to exceed 3.s. For every subpoena to be served by a bailiif in a foreign district 3 0- For every sitting under the Agricultural Holdings (England) Acts . . . . ^ 10 For every petition presented to a court under the Industrial and Provident Societies Act, 1876 10 For every order for winding-up under the last-mentioned Act .10 For every sitting to take ev'idence under the Companies Act, 1862 2 For every sitting before the judge under the Companies Act, 1867 10 0- 2 A 354 APPENDIX. Schedule B. PAET I. General. Eeqistrar^s Fees. £ s. d. Fox making a return of certiorari for costs out of pocket . . 15 Filing affidavit on issue of duplicate plaint note . . .006 Hicjli Bailiff's Fees. For keeping possession of goods till sale on any process of execution, per day (including expenses of removal, storage of goods, and all other expenses), not exceeding five days, 6d. in the pound on the value of tiie goods seized, to be fixed by appraisement in case of dispute. For keeping possession of goods under Order II. rr. 36 and 37, costs out of pocket, not exceeding 3s. Gd. per day. For keeping possession of goods in an interi^leader proceeding after the seventh day, in addition to the fees on execution of warrant costs out of pocket to be allowed by the judge. PAET II. Registrar's Fees. For examining, allowing, and filing every affidavit of debt or for substituted service under sec. 86 of the County Courts Act, 1888, where the claim does not exceed 40s 10 For the like, where the claim exceeds 40s 2 For entering writ under sees. 65 or 66 of the County Courts Act, 1888, and sending notice to parties of day of trial, etc. . .110 Taxing costs in actions under sees. 05 and GG of the County Courts Act, 1888 050 On entry of plaint under sees. 5U and 60 of the County Courts Act, 1888 110 Where the plaint has not been entered under sec. 00, and the judge shall certify that the court has exercised jurisdiction under that section, the above fee of £1 Is. shall be paid. On every order for a new trial in actions commenced under sees. 59 and 00 of the County Courts Act, 1888 . . .0106 Taxing costs under either of the said last-mentioned sees. 59 and CO, or under the Agricultural Holdings (England) Acts .0106 For sealing every warrant, order of commitment, precept, or writ issued from, or on a judgment of a court other than a county court, Gd. in the pound on the amount for which it issues (so that the total fee does not exceed lOs.). For issuing a judgment summons upon a judgment of a court other than a county court 2 6 COURT FEES. 355 4 15 For drawing up, scaling, and issuing every order under the fol lowin;; rules or any of tbem : — Order XII. rr. 2, 3, 8, and 11 Order XIII. r. 1 . Order XIV. r. 12 . - Order XV. r. 3 . Order XL. r. 7 Order LI. rr. 11 and 12 For drawing, sealing, and issuing every special judgment or order, where court exercises jurisdiction under the Supreme Court of Judicature Act, 1873, or under Order XL. For every sitting under — Order XII. r. 4 . Order XVIIL rr. 15 and 21 Order XXIII. r. 12 ^ 10 Order XXIV. r. 2, if order of court made in an equitable 1 action or matter / Where the sitting is longer than one hour, for every addi- tional liour or part of an hour For every notice, receipt, or summons under — Order IIL r. 25 Order X. r. 4. Order XVI. r. 21 Order XXI )0 Order XXII. r. 14 Order XXV. rr. 40, 41 Order XL. . Tor every application under Order XXV. r. 44 . . . .0 10 For copies of every proceeding or document under Order II.* r. 7, at i^er folio For every bond with sureties 5 7 (J 2 6 High Bailifs Fees. For every default summons where not served by a solicitor (Treasury order, November 22, 1894, adds "or party") .010 For service of every judgment summons issued upon a judgment of a court other than a county court 5 For executing every warrant, order of commitment, precept, or writ issued from, or on a judgment of, a court other than a county court. Is. in the pound on the amount for which it issues, m that the total fee does not exceed 20s. ; and for keeping possession, appraisement, and tale the same allowances as under a warrant of execiuion by a county court. For delivering the goods on completion of a replevin bond .110 together with 6d. per mile from the Court House to the place where the goods are. * Printed " LII." in official copy. 356 APPENDIX. PART III. Fees in etiuitable actions or matters only, unless other- wise mentioned. Wliere tbe subject-matter of the action or matter Does not exceed £100. Exceeds Not set out here, as not specially applicable to Admiralfy. PAET IV. "Winding vv under the Companies Act, 1867, and the Industrial AND Provident Societies Act, I87G, and the Building Societies Act, 1874. Not set out here, as not specially applicable to Admiralty. PAET V. Fees where the Court exercises Jurisdiction under the County Courts Admiralty Jurisdiction Acts, l.scs and 1869. Recfistrar's Fees. On every warrant of arrest of a vessel „ release „ bail bond ..... „ affidavit of justification „ subpoena „ notice of hearing;: .... each Summons for the attendance of assessor at the hearing of any action .... each For every order of transfer ..... AVhere a special court is to be hekl for tlie trial of the action Where tlie court is to sit for the hearing or part hearing of an action beyond three miles Irom the registrar's office, then in addition Mileage one way, from office to place of sitting, for each mile When the registrar cannot return the same night For drawing final judgment .... For filing an affidavit or other document, not being a document annexed to an affidavit For every office copy of a document in the English language jjer folio For office copies of papers in a foreign language, or of shorthand writers' or reporters' notes, or of abstiacts or translations made in the office, in addition to the above fees, the charges of the copyist, shorthand writer, reporter, or trans- lator Where the amount claimed Does not exceed £100. 16 (» 10 15 15 6 1 1 10 10 4 Exceeds £100. 2 6 15 1 15 O' 15 0' 6 110 15 10 4 COURT FEES. 357 •Fees where the Court exercises Jurisdiction under the County Courts Admiralty Jurisdiction Acts, 186s and 1SG9. On a receipt for money or for papers (onhj one fee to he taken, however many may be the papers delivered in at one time) ..... Poundage on moneys paid out of the office in any action for every £50 or fraction tliereof . From ii person who is not a party in the action, nor his solicitor, nor the clerk of the solicitor, on examining the coiu-t books in respect of any action For every summons of commitment For every warrant against the body or goods or order of sale of vessel On examining the documents in any action in which no proceedings arc pending, and which has been terminated within the last two years Ditto, ditto, if beyond that period For every sitting in which the registrar is cm- ployed as an examiner where the amount claimed exceeds £20 ..... Wlien the sitting is longer than one hour, then for every additional hour or part of an hour Where the registrar shall be required to attend elsewhere than at tlie court or oiKce (in addition to the above) .... Mileage one way from the office to the place of examination, for each mile . For taxation of costs High Bailifs Fees. For service of summons or subpoena, if served within three miles of registrar's office . If served beyond three miles of registrar's office, reasonable expenses for travelling and main- tenance Attendance at a special court if required by judge For execution of a warrant of arrest of a vessel or property ....... For keeping possession of a vessel or property, to include the cost of a vessel-keeper, if required per day If execution had at a greater distance than three miles from registrar's office, reasonable ex- penses for travelling and maintenance For sale of vessel or property, including in- ventory, for every £50 or fraction thereof For service of summons of commitment Execution of warrant against body or goods Conveyance to gaol .... per mile Where the amounL claimed Does not exceed £100. £ s. d. 10 5 5 7 Exceeds £100. 15 5 £ s. d. 1 10 (» 5 7 10 1 C 5 5 7 G 15 1 10 10 4 8 1 1 10 1 1 N.B. — Where the amount or value of the subject-matter of the action is not disclosed by the plaint it shall be taken not to exceed £10(», and the fees charged accordingly. If, however, the judge shall subsequently certify that the amount or value of the subject-matter does exceed £100, the difference between the fees up to that liuK^ taken and those that would have been taken had it exceeded £100 may then be taken. 358 APPENDIX. PART VI. Begistrar^s Fees. £ «. d. Taxing every ficcoiuit under sec. 4 of the Parliamentary Elec- tions (Returning Officers) Act, 1875, where the amount of tlie account to be taxed does not exceed £50 . . . . 10 Where such amount exceeds £50, for every £50 or fractional part of £50 an additional fee of 10 0^ Grant of a certificate of a judgment under Inferior Courts Judg- ment Extension Act, 1882 .026 Presentation of such last-mentioned certificate for registration .026 Sealing and issuing duijlicate of such certificate , . .010 APPEAL TO HIGH COUPtT. 359 HISTORICAL SURVEY OF ENACTMENTS RELATING TO COUNTY COURT APPEALS IN ADMIRALTY. An appeal from the county court used to lie to the judge of the Admiralty Court alone (C. C. Ad. Jur. Act, 1868, sec. 2G). Sec. 33 of the S. C. Jud. Act, 1873, provided — "All causes and matters which may be commenced in, or which Rules ot shall be transferred by this Act to, the Hio;h Court of Justice, shall be Court to ,. ., , , , ,. . . 1-1 r .1 • 1 TT- 1 provide for distributed among the several divisions and judges or the said liign fUgti-ibu- Court, iu such manner as may from time to time be determined by tion of any rules of court, or orders of transfer, to be made under the authority business of this Act; and in the meantime, and subject thereto, all such causes and matters shall be assigned to the said divisions respectively, in the manner hereinafter provided." Sec. 34, as regards Admiralty causes, provided — "There shall be assigned (subject as aforesaid) to the Probate, Divorce, and Admiralty Division of the said High Court : " (1) All causes and matters pending in the Court of Probate, or in the Court for Divorce and Matrimonial Causes, or in the High Court of Admiralty, at the commencement of this Act. "(2) All causes and matters which would have been within the exclusive cognizance of tlie Court of Probate, or the Court for Divorce and Matrimonial Causes, or of the High Court of Admiralty, if this Act had not passed. Sec. 42. " Subject to any Rules of Court, and in the meantime until Distribu- such rules shall be made, all business arising out of any cause or ^^""^ '^^ matter assigned to the . . . Probate, Divorce, and Admiralty Division of amons the the said High Court shall be transacted and disposed of in the first judges of instance by oue judge only, as has been heretofore accustomed in the Chancery Court of Probate and for Divorce and INIatrimonial Causes, and the . . . f ", i,°' bate, Ui- High Court of Admiralty respectively; and every cause or matter vorce and which, at the commencement of this Act, may be depending in the . . . Admiralty Court of Probate and for Divorce and Matrimonial Causes, and the ^''^'j^'°"f High Court of Admiralty respectively, shall (subject to the power of Qq,jj.(. ° transfer) be assigned to the same judge in or to whose court the same may have been depending or attached at the commencement of this Act; . . . provided that (subject to any Rules of Court, and to the power 360 APPENDIX. Ap])eals from in- ferior courts to be deter- mined by divisional courts. Appeals from inferior courts. of transfer, and to the provisions of this Act as to trial of questions or issues by commissioners, or in Middlesex or London), all causes and matters which, if this Act had not passed, would have been within the exclusive cognizance of the High Court of Admindty, shall be assigned to the present judge of the said Admiralty Court duiing bis continuance in office as a judge of the High Court. Sec. 45. All appeals from petty or quarter sessions, from a county court, or from any other inferior court, which might before the passing of this Act have been brought to any court or jud: meaning " British steamship carrying passengers to, from, or between any places in the United Kingdom, except steam ferry- boats working in chains (commonly called steam bridges), and every foreign steamship carrying passengers between place-; in the United Kingdom" (steamships also including generally vessels propelled by electricity, etc. (sec. 743). As to British ships the definition is clear enough, as it British. includes all cases where one or both termini of any voyage arc in the United Kingdom ; but for the purposes of the survey and passenger certificate, and therefore this section, it is limited by sec. 271 (1) to such steamers carrying more than twelve passenger;;. In the case of foreign steamers it is not so clear. The Foreign. general case of steamers, such as the North German Lloyd, which call at Southampton, and only at Southampton, on a voyage between places, both of which are out of the United Kingdom, and also vessels trading direct between one British and other foreign ports, are clearly not within it. And a foreign vessel engaged in carrying passengers between two or more ports within the United Kingdom, clearly would be within it ; but it seems 366 SUPPLEMENT. M. S. Act, doubtful if a vessel coming into one port, Scay Southampton, and Callincr at tli6i'6 taking some passengers, and then calling at another port, ports in say Plymouth, and not disembarking any, could be said to be Kiucr^f carrying passengers between such two ports ; or if a steamer with passengers from the north of Europe calling in at some of the coal ports to fill wp her bunkers, and subsequently calling at a south coast port for more passengers, would be included. Emigrant The difficulty above pointed out with regard to the case of ships. British and foreign steamships, does not arise under sec. 318 as to emigrant ships. As the definition of an " emigrant ship," sec. 268, M. S. Act, 1 894, includes all vessels, British and foreign, embarking passengers in the British Isles. The difficulty under this latter section is one common to all vessels, when embarking passengers in a British port sufficient in number to bring them within the section, if such passengers, as is very frequently the case, are aliens, who have not done more than disembark at Hull or Leith from one ship, and re-embark at Liverpool or Glasgow. Can such persons be said to be aliens resident in the British Islands ? It may also be observed that the penalty for not getting a clearance, for which the certificate is a condition pre- cedent, is tremendous — the forfeiture of the ship (sec. 319) in the first instance, but the Board of Trade has discretionary power to release the ship on payment of a fine not exceeding £2000. Light and gcc. 420 allows a surveyor to inspect all ships, whether yfi"etim Bi'itish or foreign, as to lights and fog signals. And it would shijis. appear that difficulties might arise where a foreign country has not adopted our view of the position and screening of side- lights, if the inspector insisted on her doing so. Sec. 459. Sec. 459. "(1) Where a British ship, beino; in any port iu the Unsea- United Kingd( ra, is an unsafe ship, that is to say, is by reason of the ■shins defective condition of her hull, equipments, or machinery, or by reason 'jf overloading or improper loading, unfit to proceed to sea without serious danger to liuman life, having regard to the nature of the service for which she is intended, such ship may be provisionally detained for the purpose of being surveyed, and either finally detained or released as follows: — • " (a) The Board of Trade, if they have reason to believe, on com- plaint or otherwise, that a British ship is unsafe, may order the ship to be provisionally detained as an unsafe ship for the purpose of being surveyed. Detention " (J) When a ship has been provisionally detained, there shall be forthwith served on the master of the ship a written state- ment of the grounds of her detention, and the Board of Trade COURTS OF SURVEY. 3G7 may, if they think fit, appoint some competent person or persons to survey the ship and report thereon to tlie Board. "(c) The Board of Trade on receiving the report may either order the ship to be released, or, if in their opinion the ship is unsafe, may order her to be finally detained, either absolutely, or until the performance of such conditions with respect to the execution of repairs or alterations, or the unloading or reloading of cargo, as the Board may think necessary fur the protection of human lil'e, and the Board may vary or add to any such order. "" (d) Before the order for final detention is made, a copy of the report shall be served upon the master of the ship, and within seven days after that service the owner or master of the ship may appeal to the court of survey for the port or district where the ship is detained in manner directed by the rules of that court. ■"(e) Where a ship has been provisionally detained, the owner or master of the ship, at any time before the person appointed under this section to survey the ship makes that survey, may require that he shall be accompanied by such person as the owner or master may select out of the list of assessors for the court of survey, and in that case if the surveyor and assessor agree, the Board of Trade shall cause the ship to be detained or released accordingly, but if they differ, the Board of Trade may act as if the requisition had not been made, and the owner and master shall have the like appeal touching the report of the surveyor as is before provided by this section. "' (/) Where a ship has been provisionally detained, the Board of Trade may at any time, if they think it expedient, refer the matter to the court of survey for the port or district where the ship is detained. " ((/) The Board of Trade may at any time, if satisfied that a ship detained under this section is not unsafe, order her to be released either upon or without any conditions. "(2) Any person appointed by the Board of Trade for the purpose (in this Act referred to as a detaining ofticer), shall have the same power as the Board have under this section of ordering the provisional detention of a ship for the purpose of being surveyed, and of appoint- ing a person or persons to survey her; and if he thinks that a ship so detained by him is not unsafe may order her to be released. " (3) A detaining officer shall forthwith report to the Board of Trade any order made by him for the detention or release of a ship. " (4) An order for the detention of a ship, provisional or final, and an order varying the same, shall be served as soon as may be on the master of .the ship. "(5) A ship detained under this section shall not be released by reason of her British register being subsequently closed. JI. S. Act, 1894. Appeal to court of survey. Court of survey, reference to. Detaining officer. M. S. Act, 1894. Service of order for detention. 368 SUPPLEMENT. M. S. Act, 1894. Sec. 460. Compensa- tion for unreason- able deten- tion. Costs of detention. Costs of court of survey. Taxation of. Action against Board of Trade lor detention. Sec. 461. Security for com- pensation of deten- tion. " (6) The Board of Trade rricay with the consent of the Treasury appoint fit persons to act as detaining officers under this section, and may remove any such officer; and a detaining officer shall be paid such salary or remuneration (if any) out of money provided by Parlia- ment as the Treasury direct, and shall for the purpose of his duties have all the powers of a Board of Trade inspector under this Act. " (7) A detaining officer and a person authorized to survey a ship under this section shall for that purpose haA'e the sime power as a person appointed by a court of survey to survey a ship, and the provisions of this Act with respect to the person so appointed shall apply accordingly. Sec. 460. "(1) If it appears that there was not reasonable and probable cause, by reason of the condition of the ship or the act or default of the owner, for the provisional detention of a ship under thi& part of this Act as an unsafe ship, the Board of Trade shall be liable to pay to the owner of the ship his costs of and incidental to the detention and survey of the ship, and also compensation for any loss or dama,2;e sustained by him by reason of the detention or survey. "(2) If a ship is finally detained under this Act, or if it appears that a ship provisionally detained was, at the time of that detention, an unsafe ship within the meaning of this part of this Act, the owner of the ship shall be liable to pay to the Board of Trade their costs of and incidental to the detention and survey of the ship, and those costs shall, without prejudice to any other remedy, be recoverable as salvage is recoverable. "(3) For the purpose of this section the costs of and incidental to- any proceeding before a court of survey and a reasonable amount in respect of the remuneration of the surveyor or officer of the Board of Trade, shall be part of the costs of the detention and survey of the ship, and any dispute as to the amount of those costs may be referred to one of the officers following; namely, in Enaland or Ireland to one of the masters or registrars of the Hi^h Court, and in Scotland to the auditor of the Court of Session, and the officer shall, on request by the Board of Trade, ascertain and certify the proper amount of those costs. " (4) An action for any costs or compensation payable by the Board of Trade under this section may be brought against the secretary of that Board by his official title as if he were a corporation sole, and if the cause of action arises in Ireland, and the action is brought in the High Court, that court may order that the summons or writ may be served on the Crown and Treasury Solicitor for Ireland in such manner and on such terms respecting extension of time and otherwise as the court thinks fit, and that that service shall be sufficient service of the summons or writ upon the secretary of the Board of Trade. Sec. 401. "(1) Where a complaint is made to the Board of Trade or a detaining officer that a British ship is unsafe, the Board or officer may, if they or he think fit, require the complainant to give security to the' satisfaction of the Board for the costs and compensation which he may become liable to pay as hereinafter mentioned. COURTS OF SURVEY. 309 "(2) Provided that such sccuvit}^ shall not be required where the ■coraplrdnt is made by one-fourth, being not less than throe, of the seamen belonging to the ship and is not in the opinion of the I'oard or officer frivolous or vexatious, and the Board or officer shall, if the ■complaint is made in sufficient time before the sailing of the ship, take proper steps for ascertaining whether the ship ought to be detained. "(3) Where a ship is detained in cnnseqnence of any complaint :and the circumstances are such that the Board of Trade are liable imder this Act to pay to the owner of the ship any costs or compensa- lion, the comjtlainant shall be liable to pay to the Board of Trade all ^such costs and compensation as the Board incur or are liable to pay in respect of the detention and survey of the ship. Sec. 462. "Where a foreign ship ha-; taken on board all or any part of her cargo at a port in the United Kingdom, and is whilst at that port unsafe by re;ison of overloading or improper loading, the pro- visions of this part of this Act with respect to the detention of ships shall apply to that foreign ship as if she were a British ship, with the following modifications : — " (1) A copy of the order for the provisional detention of the ship shall be forthwith served on the consular officer for the country to vhich the ship belongs at or nearest to the said port. " (2) Where a ship has been provisionally detained, the consular •officer, on the request of the owner or master of the ship, may require that the person appointed by the Board of Trade to survey the ship shall be accompanied by such person as the consular officer may select, and in that case, if the surveyor ami that person agree, the Board of Trade shall cause the ship to be detained or released accordingly ; but if they differ, the Board of Trade may act as if the requisition had not been made, and the owner and master shall have the like appeal to a ■court of survey touching the report of the survey or as is hereinbefore provided in the case of a British ship; and "(3) Where the owner or master of the ship appeals to the court of survey, the consular officer, on his request, may appoint a competent person to be assessor in the case in lieu of the assessor who, if the ship were a British ship, would be appointed otherwise than by the Board of Trade. Sec. 463. "(1) Whenever in any proceeding against any seaman or apprentice belonging to any ship for the offence of desertion or absence without leave, or for otherwise being absent from his ship without leave, it is alleged by one-fourth, or if their number exceeds twenty, by not less than five, of the seamen belonging to the ship, that the ship is by reason of unseaworthiness, overloading, improper loading, tlefective equipment, or for any other reason, not in a fit condition to proceed to sea, or that the accommodation in the ship is insufficient, the •court having cognizance of the case shall take such means as may be in their power to satisfy themselves concerning the truth or untruth of the allegation, and shall for that purpose receive the evidence of the 2 B M. S. Act, 1894. When crew coini)lain. Liability of ciimplain- aiit to Board of Trade. S..»c. 4G2. Detention ot" foreign slii)). I'rovisional detention. Apjioint- ment of surveyor bv consul. Ajipeals to court of survey. Soc. 4G3. Unsea- worthiness r.s excuse for deser- tion. 370 SUPPLEMENT. M. S. Act. 1894. Uusea- worthiness as excuse for deser- tion. Survey of ships. Costs of survey. persons making the same, and may summon any other witnesses whose evidence they may think it desirable to hear, and shall, if satisfied that the allegation is groundless, adjudicate in the case, but if not so satisfied shall before adjudication cause the ship to be- surveyed. "(2) A seaman or apprentice charged with desertion, or with quitting his ship without leave, shall not have any right to apply for a survey under this section unless he has before quitting his ship complained to the master of the circumstances so alleged in justifi- cation. "(3) For the purposes of this section the court shall require any surveyor of ships appointed vmder this Act, or any person appointed' for the purpose by the Board of Trade, or, if such a surveyor or i:»erson cannot be obtained without unreasonable expense or delay, or is not^ in the opinion of the court, competent to deal with the special circum- stances of the case, then any other impartial surveyor appointed by the court, and having no interest in the ship, her freight, or cargo, to- survey the ship, and to answer any question concerning her which the court think fit to put. " (4) Such surveyor or other person shall survey the ship, and make his written report to the court, including an answer to every question put to him by the court, and tlie court shall cause the report to be communicated to the parties, and, unless the opinions expressed in the- report arc proved to tlie satisfaction of the court to be erroneous, shall' determine the questions before them in accordance with those opinions^ "(5) Any person making a survey under this section shall for the- purposes thereof have all the powers of a Board of Trade inspector under this Act. "(6) The costs (if any) of the survey shall be determined by the- Board of Trade according to a scale of fees to be fixed by them, and shall be paid in the first instance out of the Mercantile Marine Fund. "(7) If it is proved that the shi|) is in fit condition to proceed to sea, or that the accommodation is sufficient, as the case may be, the costs of the survey shall be paid by the person upon whose demand,, or in consequence of whose allegation the survey was made, and may be deducted by the master or owner out of the wages due or to become due to that person, and shall be paid over to the Board of Trade. " (8) If it is proved that the ship is not in a fit condition to proceed to sea, or that the accommodation is insufficient, as the case may be, the master or owner of the ship shall pay the costs of the survey to- the Board of Trade, and shall be liable to pay to the seaman or apprentice, who has been detained in consequence of the said proceed- ing before the court under tliis section, such compensation for his detention as the court may award." p.fference j^ m ^ ^^^^^^ -^^^ observed that there is a great difference in British and the powcr of detention of a British and a foreign vessel under COURTS OF SURVEY. 371 these sections. A Britisli sliip may be cletaiued for any dangerous foreign unseaworthiness ; a foreign ship only when such unseaworthiness ^ '^^' is caused by overloading or improper loading, and then only when such loading has been effected in whole or in part in a British port, and moreover as such loading is confined to cargo, it would appear not to apply to the case of a foreign ship arriving at a British port with her cargo aboard, and then becoming overloaded, or improperly loaded, by taking on board bunker coals. See The Winston (8 P. D. 176; 9 P. D. 85; 5 Asp. 3, 274), where the distinction is drawn, though in con- nection with other enactments. In Chalmers v. Scopcnich, 7 Asp. 171, a foreign ship had been detained under sec. 462 (then sec. 13, M. S. Act, 1876), as unsafe from overloading at Cardiff, but the master put the detaining officer on shore and proceeded to sea. The Board of Trade proceeded against him under sec. 34, M. S. Act, 1876, now sec. 692, sub-ss. (l;, (2), M. S. Act, 1894. On behalf of the captain it was urged that, as the provisions of the M. S. Acts had not been applied by Order in Council to the state to which his ship belonged, those provisions as to detention did not apply to his vessel. This objection, however, was overruled, and now sec. 734, M. S. Act, 1894, which replaces sec. 37, M. S. Act, 1876, makes the matter perfectly clear, as it distinctly states the Order in Council only to be requisite for the application to foreign ships of those provisions " which do not apply to that country." Besides the appeal to the court of survey on the detention of Appeal to an " unsafe ship " under sec. 459, the section would appear to '^'^"^"* °^ 1111. . survey. give an appeal also where she is detained under sec. 431 for deficient life-saving apparatus; and as sec. 275 gives an appeal from the report of a surveyor on passenger steam- ships, an appeal practically lies on the matters dealt with in the declarations of survey under sec. 272. Submersion of the centre of the disc, commonly called the " Plimsoll mark," in salt water, the position of which in each vessel is now regulated under sec. 438, makes the ship an " unsafe ship " within the meaning of sec. 459 (see sec. 439). The delicate questions which may arise before a court of survey are whether, though the centre of the disc on one side was sub- merged in consequence of the vessel having a list, that is. Improper not being quite upright, the centre on the other side was not °^ ^"°' submerged, and therefore the vessel's reserve of buoyancy equal to that required by the Board of Trade ; and also whether at the time the vessel was detained she was, in fact, in water of 372 SUPPLEMENT. Effect of density of water. Lewis V. Gray. Expenses of Board of Trade recoverable as salvage. the density of average sea-water, a question wliicli may, at any port situated on the banks of a river, depend on the state of the tide and recent rainfall, and in some parts of the world, such as the Black and Baltic Seas, may depend on the force and direction of the wind. It is not unusual to find in English cngine-rooru logs a statement as to density of the sea-water from time to time, which may become valuable evidence on such a point. The improper loading will more jjrobably be found in some infringement of the regulations as to timber (sec. 451) and grain (sees. 452-456, and Sc. 18) cargoes. On the more general question of when a ship is an unsafe ship by reason of the defective condition of her hull, equipment, or machinery, and unfit to proceed to sea without serious danger to human life, there may be great difficulty. It should be observed that, besides these proceedings for detention, there are others of a highly penal character against the owner and master (sec. 457) ; but the owner or master can free himself from this personal liability by showing he used " all reasonable means " to secure the seaworthiness of the ship (sec. 458, Hedley v. Pinkney, 1894, A. C. 222, 7 Asp. 483); but this would not in itself be a reason for releasing the ship if in fact she was unsea- worthy when detained. An appeal to a court of survey, even if unsuccessful, does not appear to bar the right of the owner to take proceedings at law for damages for the undue or unneces- sarily prolonged detention of his ship (sec. 460 (1)), as was done in Lewis v. Gray (1 C. P. D. 452, 3 Asp. 136), though that case was decided before the establishment in 1876 of courts of survey. In Dixon v. Sir H. Calcraft, 7 Asp. 161, where a vessel had been detained under sec. 459 (then sec. 6, M. S. Act, 1876), but, as the Board of Trade admitted, under a mistake, the shipowners claimed under sec. 460 (sec. 10, M. S. Act, 1876), as " compen- sation for any loss or damage sustained " by them, damage to their rejratation as shipowners owing to the detention and two days' demurrage ; but it was held that they could not claim injui'y to reputation under the section, and, in the absence of any evidence as to actual damage sustained in consequence of the detention, the claim for demurrage was also disallowed. It must also be noted that the Board of Trade, if the ship is rightly detained, can recover their expenses (460 (3)), if they so desire, in the same way as salvage, for which see " Salvage," ante, p. 21 ; but this does not preclude any other means of procedure ; COURTS OF SURVEY. 373 and on the otlier hantl, that if a complaint by seamen is unsuc- cessful, that there is no oi)tion as to payment of expenses, which " shall be paid " by the person requiring the survey, and may be deducted from his wages (sec. 463 (7)). There is very little that calls for remark in the rules issued Rules of for courts of survey. It will be seen that in most places there is s°"|, ? an option for several persons as judge, not unfrequently the judges of two adjacent county court districts being interchangeable. There may be a difficulty in obtaining the attendance of Attendance witnesses in cases where the court is presided over by any other °^ '*^'*" person than a wreck commissioner ; that oflBcial, ii appointed, has power to issue subpoenas to any part of the United Kingdom ; but it is at least doubtful if a county court judge, or recorder, or stipendiary magistrate, when sitting as judge of a court of survey, has any such power ; sees. 110-112 of the County Court Act, 1888, and Order XVIII., do not appear to be applicable, and there seems no power to bind over witnesses to appear and give evidence, and, the matter in question being neither felony nor misdemeanour, it may be doubted whether a subpoena would be issued by the Crown office. As the proceedings are to be in open court (sec. 488 (1)), it would appear that all proceedings are to be public, and liable to jrablication, with names of witnesses and particulars of evidence. The sections of the Merchant Shipping Act, 1894 (sees. 487- 491), regulating the constitution and the procedure of the Courts, and the rules made thereunder follow. "487. (1) A court of survey fur a port or district shall consist of a Sec. 487. judge sittiu,:r with two assessors. Uon^of "l* " (2) The judge shall be such person as may be summoned for the ^^^^.^^ ^^ case in accordance with ihe rules made under this Act with respect to survey, that court, out of a list approved for the jwrt or district by a Secretary of State, of wreck commissioners appointed under tliis Act, sti})endiary or metropolitan ]iolice magistrates, judges of county courts, ami other tit persons; but in any special case in which the Board of Trade think it expedient to appoint a wreck commissioner, the judge shall be such wreck commissioner. "(3) The assessors shall be persons of nautical, engineering, or other special skill and experience; subject to the provisions of the fifth part of this Act as regards foreign ships, one of them shall he. appointed by the Board of Trade, either generally or in each case, and the other shall be summoned, in accordance with the rules made as aforesaid, by the registrar of the court, out of a list of persons periodically nominated for the purpose by the local marine board of the port, or, if there is no such board, by a body of local shipowners 374 SUPPLEMENT. M/.S. Act, 1894. Sec. 488. Powei- and procedure of court of survey. or mercbants approved for the purpose by a Secretary of State, or, if there is no such list, shall be appointed by the judge : If a Secretary of State thinks fit at any time, on the recommendation of the govern- ment of any British possession or any foreign country, to add any persons to any such list, those persons shall, until otherwise directed by the Secretary of State, be added to the list, and if there is no such list shall form the list. " (4) The county court registrar, or such other fit person as a Secretary of State may from time to time appoint, shall be the registrar of the court, and shall, on receiving notice of an appeal or a reference from the Board of Trade, immediately summon the court to meet forthwith in manner directed by the rules. "(5) The name of the re each, and the persons authorized to act as judges and' EeGISTRARS THEREOF, APPROVED BY ONE OF HER MaJESTY's PRINCIPAL Secretaries of State. In the following lists, column No. 1 contains the names of all the- courts of survey in the United Kingdom. Districts. The district of the court of survey for London shall include the City of London, and the districts of all the Metropolitan county courts, the districts of the County Court of Kent holden at Cravesond, Dartford, Greenwich, and Woolwich, tlie districts of the County Court of Essex holden at Brentwood and Piomford, and the district of the County Court of Surrey holden at Wandsworth. The district of any other court of survey in England shall be the district of the county court of the place, at which the court of survey is held. The district of a court of survey in Scotland and in Ireland shall be the district of the post of customs uf the place, at which the court is held. The courts shall be held at the places whose name they bear, or at any place within their respective districts, and may, by the permission, of the judge, be adjourned to any place out of such districts. Judges. The wreck commissioner shall be a judge of every court of survey in. the United Kingdom. The persons whose official titles are set out in column No. 2, shall be the other judges of the courts of survey at the places opposite to which their names occur. Befjistrars. The registrar of tlie Court of Survey for London shall be Mr. Williani Edward Stanley Thomson, and \\U office shall be at Somerset House, Strand, in the county of Middlesex.* * After the opening of the Royal Courts of Justice in the Strand, the- London Oflice was reiuoved to them. COURTS OF SURVEY. 381 The registrar of any other court of survey in England shall be the registrar of the county court of tlie place, at which the court of Survey ds held, and his oftice shall be the office of the registrar of the said county court. The registrar of a court of survey in Scotland shall be the sheriff clerk of the county, in which the court is held, and his office shall be ihe office of the said sheriff clerk. The registrar of a court of survey in Ireland shall be the clerk of the peace, or registrar, or other person discharging the duties of registrar of the court of the chairman of the county, in which the ■court is held, and his office shall be the office of the clerk of the peace, registrar, or other person aforesaid. List No. 1. COURTS OF SURVEY IN ENGLAND. Column No. 1. Column No. 2. Court of Survey for Judges of the Courts of Survey at the places opposite to which their Names occur. Berwick lielford Alnwick Morpeth North Shields Newcastle . Oateshead . South Shields Sunderland . Sean am Harbour Hartlepool Stockton Stokesley Whitby Scarborough Bridlington Beverley Hedon Hull . Goole Barton-on-Humber ■Great Grimsby . Louth . Spilsby I^oston Spalding Holbeach Wisbeach !The judges of the county courts in circuits 1 and 2. The recorder of Berwick. j The judges of the county courts in cir- cuits 1 and 2. ^ The stipendiary magistrate at South Shields. The recorders of Durham and Newcastle. The judges of tlie county courts in cir- cuits 2 and 15. The stipendiary magistrate at Middles- borough. The recorder of Hartlepool. The judge of the county court in circuit Kr 16. The stipendiary magistr.ite at Hull. The recorders of Hull and Scarborough. The judges of the county courts in cir- cuits 1(3 and 18. The judge of the county courts in circuit 17. The judge of the county courts in circuits 17, 32, and 35. 182 SUPPLEMENT. Column No. 1. Column Xo. 2. Courts of Survey for King's Lynn Little Walsiugham Holt . North Walsham Yarmouth . Lowestoft . Halesworth . Franilingham Woodbridge Ipswich Harwich Colchester Maldon Koch ford London Eochester Sheerness Sittingbourne Faversham Canterbury Margate Eamsgate Sandwich Deal . Dover . Folkestone Hythe . Komuey Eye . Hastings Lewes . Brighton Worthing . Arundel Chichester . Portsmouth . Southampton Newport, Isle of Wight Christchurch Poole . Wareham . Judges of the Courts of Survey at the places opposite to which their Karnes occur. !The judge of the count}' courts in circuit 32. The recorder of King's Lynn. I The judge of the county courts in circuits 32 and 33. The recorders of Oxford,* Norwich, and Yarmouth. !The judge of the county courts in circuit oo le . Williton . Bridge water Weston-super-Mare Wells Bristol Thornbury . Dursley Gloucester . Xewnham . Chepstow . Newport (Monmouth) Cardiff Brido-eud Neath . Swansea Llanelly Carmarthen. Narbeth Pembroke . Haverfordwest Cardigan Abernj-ron . The judge of the county courts in circuit The judse of the county courts in circuits 57 and 58. The recorder of Exeter. The judge of the countj' courts in circuit 58. The recorder of Dartmouth. The judges of the county courts in cir- cuits 58 and 59. The recorders of Devonport, Plymouth, and Tiverton. The judge of the county courts in circuit 59. ' The recorders of Falmouth, Helston, and Penzance. The judge of the county courts in circuit 57. The recorders of Barnstaple and Bideford. The judges of the county courts in cir- cuits 54 and 57. The recorders of Bristol and Wells. The judges of the county courts in cir- cuits 53 and 5-i. The judges of the county courts in circuits- 24 and 54. The recorder of Gh)ucester. The judges of the county courts in circuits 24, 30, and 31. The stipendiary magistrates at Cardiff and Swansea. Tlie jud^c of the county courts in circuit 31. The recorder of Carmarthen. 384 SUPPLEMENT. Column No. I. Column No. 2. Courts of Survey for Judges of the Courts of Survey at the places opposite to which their names occur. Aberystwitli Machynlleth ])olgelly I'ortmadoc rwilheli Oaruarvon Lhingefui ]3angur Conway *St. Asaph Holywell ■Cliester liuncorn lUrkenhead Liverpool ■Ormskirk . Preston Kirkham Paulton-le-Fylde Lancaster . Ulverston . Whitehaven Cnckermouth Wigton •Carlisle The judge of the county courts in circuit 28. J-r, The judge of the countv courts in circuit 29. The recorder of Chester. , The judges of the county courts in circuits 6 and*"?. The stipendiary magistrate at Liverpool. j The stipendiary magistrate at Birkenhead. I Judge of court of passage. ( The recorder of Liverpool. r The judges of the county court in cir- I cuit 6. !The judge of the county courts in cir- cuit 4. The recorder of Preston. The judge of the county courts in cir- cuit 3. The recorder of Carlisle. COURTS OF SURVEY. 385 List No. 2. COURTS OF SURVEY IN SCOTLAND. Column No. 1. Column No. 2. Court of Survey for Judges of the Courts of Survey at the places opposite to which their Names occur. Leith . Granton Borrowstoness Grangemouth Alloa . Kirkcaldy Dundee Arbroath Montrose Aberdeen Peterhead Banff . Inverness Wick . Campbeltown Glasgow Greenock Ardrossan Ayr . Stranraer Wigtown Dumfries Sheriff and sheriff substitutes of Mid- lothian, HaddingtuD, and Linlithgow. Sheriff and sheriff substitutes of Mid- lothian, Haddington, and Linlithgow. Sheriff and sheriff substitutes of Linlith- gow and Stirling. Sheriff and sheriff substitutes of Linlith- gow and Stirling. Sheriff and sheriff" substitutes of Stirling, Clackmannan, and Perthshire. Sheriff' and sheriff" substitutes of Fifeshire and Perthshire. Sheriff and sheriff substitutes of Perth- shire, Forfarshire, and Kincardine. Sheriff' and sheriff substitutes of Perth- shire, Forfarshire, and Kincardine. Sheriff and slierift" substitutes of Perth- shire, Forfarshire, and Kincardine. Sheriff' and sheriff substitutes of Aberdeen- shire and Kincardine. Sheriff' and sheriff substitutes of Kincar- dine, Banffshire, and Aberdeenshire. Sheriff' and sheriff substitutes of Aberdeen- shire, Banff'shire, and Elgin. Sheriff and sheriff" substitutes of Nairn, Inverness-shire, and Ross. Sheriff and sheriff substitutes of Caithness and Sutherland. Sheriff" and sheriff substitutes of Argyle- shire. Sheriff and sheriff substitutes of Lanark- shire, Renfrewshire, and Dumbarton. Sheriff" and sheriff substitutes of Lanark- shire, RenfreWvshire, and Ayrshire. Sheriff" and sheriff" substitutes of Renfrew and Ayrshire. Sheriff and sheriff substitutes of Ayrshire, Renfrewshire, and Wigtonshire. Sheriff and sheriff" substitutes of Ayrshire, Wisrton, and Kircudbright. Sheriff" and sheriff substitutes of Ayrshire, Wigton, and Kircudbright. Sheriff" and sheriff subi-titutes of Dumfries and Kircudbriirht. 2 c 386 SUPPLEMENT. List No. 3. COUETS OF SURVEY IN IRELAND. Column No. 1. Column No. 2. Court of Survey for Judges of the Courts of Survey at the places opposite to which their Names occur. Dublin Drogheda Dundalk Newry Belfast Coleraine Londonderry Sligo . Ballina Westport Galway Limerick Tralee Skibbereen Cork . Youghal Waterford New Ross Wexford The recorder of Dublin. Resident magistrates and chairman of quarter session for co. Dublin. Resident magistrates and chairmen of the COS. of Louth and Meath, Resident magistrates and chairman of CO. of Louth. Resident magistrates and chairmen of COS. of Armagh and Down. The recorder of Belfast. Resident magistrates and chairman of quarter sessions for co. of Antrim. Resident magistrates and chairman of CO. of Londonderry. The recorder of Londonderry. Resident magistrates and chairman of quarter sessions for co. of London- derry. Resident magistrates and chairman of CO. of Sligo. Chairman of quarter sessions of co. Mayo. Resident magistrate. Chairman of co. Mayo. The recorder of Galway, resident magis- trates and chairman of co. Galway. Resident magistrates, chairman of cos. Clare and Limerick. Chairman of co. Kerry. Chairman of cc. Cork. Tlie recorder of Cork, resident magistrates and chairman of quarter sessions. Chairman of co. Cork. Resident magistrates, chairman of co. Waterford. Chairman of cos. Wexford and Kilkenny. Resident magistrate, chairman of co. Wexford. APPENDIX B. The following forms shall be employed, as far as possible, with such alterations as circumstances may require, but no deviation from the ]irescribed forms shall invalidate the proceedings, unless the judge shall be of opinion that the deviation was material. COURTS OF SURVEY — FORMS. 387 No. 1. — Notice of Appeal. The Merchant Shipping Acts, 1854 to 187G. In the matter of the ship Marian. To the Kegistrar of the court of survey for Take notice that I \_name and address] the master [or managing owner or owner of shares] of the ship of the port of do appeal (1) from the report of L. M., the surveyor appointed by the Board of Trade to survey the said ship. or (2) from a declaration given by a shipwright surveyor Now sec. or engineer (or fiom the refusal of a shipwright surveyor or ^^^' ■'^^* ^• engineer to give a declaration), under the provisions of sec. 309 of ' • • the Merchant Shipping Act, 1854. or (3) from the refusal of an emigration officer (or as the ^ow^ sees. case may be) to give a certificate of clearance under sees. 11 and 50 of t' ' the Passengers Act, 1855. 42o (i)'and or (4) from the refusal of appointed by the Board of (3), M. S. Trade under the provisions of sec. 30 of the Merchant Shipping Act ^'^^' •^^^*- Amendment Act, 1862, to give a certificate that the said ship is properly provided with lights and with the means of making fog signals. The address at which all notices and documents may be served by post or otherwise on me is Dated this day of (To be signed by the appellant.) No. 2. — Summons to Court. The Merchant Shipping Acts, 1854 to 1876. The court of Survey for In the matter of an appeal by from the report of L. M.,. the surveyor appointed by the Board to survey the Marian [or as the case may be]. In pursuance of the Merchant Shipping Act, 1876, 1 hereby summon you to attend as judge [or assessor] on this a2:)peal, at , in the the day of at the hour of noon. Dated this day of ,18 . I will attend as summoned. Eegistrar. Signature of person summoned. No. 3. — Notice of Sitting of Court of Survey. The Merchant Shipping Acts, 1854 to 1876. The court of survey for In the matter of an appeal by from the report of L.M., the surveyor appointed by the Board of Trade to survey the Marian \or as the case may be]. 388 SUPPLEMENT. To A. B., the master [or managing owner, or owner of shares] of the ship the appellant [or the Board of Trade]. Take notice that the court of survey will meet at on the day of 18 , at o'clock in the noon to hear the appeal in the above matter. Dated this day of , 18 . Registrar. No. 4, — Order of Court for Release or Detention of Ship. The Merchant Shipping Acts, 1854 to 1876, The court of survey for In the matter of an appeal by from the report of L. M., the surveyor appointed by the Board of Trade to survey the Marian [or as the case may be]. I do, with the concurrence of , order the said ship to be released or detained [finally or conditionally upon ]• Given under my hand this day of , 18 . Judge. We [or I] concur in the above report. Assessor. Assessor. No. 5. — Eeport of Judge of Court of Survey. The Merchant Shipping Acts, 1854 to 1876. The court of survey for In the matter of an appeal by from the report of L. M., the surveyor appointed by the Board of Trade to survey the Marian [or as the case may 5e]. I do report that, having heard this appeal, I did, with the concurrence of order the said ship to be released or detained [finally or conditionally upon ] for the reasons set forth in the annexed statement. I am also of opinion that the costs of this appeal should be paid by A. B., to the solicitor of the Board of Trade [or by the solicitor to the Board of Trade to A. B. ; or that all parties shall pay their own costs]. Dated this day of , 18 . Judge. We [or I] concur in the above report. Assessor.' Assessor. COURTS OF SURVEY — FORMS, 389 No. 6. — Order for Payment of Costs, or of Costs and Damages. The Merchant Shipping Acts, 1854 to 1876. The court of survey for In the matter of an appeal by from [The parties to this appeal having, by agreement in writing, con- sented to refer the question whether any costs or costs and damages are due, and to and from whom, to me or us, with liberty to assess the amount thereof], I order (1) that the Board of Trade do pay to the appellant the sum of for the costs [or the costs and damages] incurred by reason of such detention and survey. or (2) that the appellant do pay to the solicitor of the Board of Trade the sum of for the costs incurred by reason of the detention and survey of the said ship. or (3) that each party pays his own costs. Given under my hand this day of , 18 Judge. We [or I] concur in the above order. Assessor. Assessor. 10 2 6 10 2 6 10 2 6 APPENDIX C. On filing notice of appeal, for every 50 tons of the gross registered tonnage of the ship On filing every affidavit On entering appearance On every subpoena . On every statement of the order required to be made by the court On the production and swearing of every witness On every consent by the parties to refer the question of costs, or of costs and damages, to the court or judge, to be paid by each party 10 On every hearing, for each day, to be paid by each \ . i o O partv, the amount thereof to be at the discretion v f,i • A 1 to 5 of the judge ' On every order whether for the release or detention of the ship, or for payment of costs, or costs and damages, to be paid by the party taking out the order . . .10 On every office copy of the judge's judgment or report of the shorthand writer's notes of the evidence, or of any of the proceedings in the appeal per folio of 72 words . .006 390 SUPPLEMENT. Further Rules for Courts of Survey in the United Kingdom. Whereas by the 9th section of the Merchant Shipping Act, 1876, it is provided, that the Lord Chancellor of Great Britain may from time to time, with the consent of the Treasury so far as relates to fees, make, and when made, revoke, alter, and add to. General Rules to carry into effect the provisions of that Act, with respect to a court of survey, and in particular, amongst other things, with respect to the amount and application of the fees to be received therein : And whereas it is expedient, with a view to the proper application of the fees to be received in courts of survey, to provide for their collection by means of stamps : Now, therefore, I, the Right Honourable Hugh MacCalmont Baron Cairns, Lord High Chancellor of Great Britain, with the consent of the Treasury, do oruer as follows : — 1. The fees set forth in Appendix C. to the General Rules established for courts of survey in the United Kingdom, bearing date the 29th September, 1876, shall be taken in stamps, to be impressed, so far as may be possible, on the documents to which they refer, such impressed stamps to be obtained from the Commissioners of Inland Revenue in London, or from their stamp distributors. 2. Immediately on the termination of an appeal before a court of survey elsewhere than in London, the registrar of the court shall forward to the Registry of the Court of Survey for London, at Somerset House, London, for deposit therein, all the papers, stamped and un- stamped, belonging to the said appeal. Dated this 11th day of January, 1877. (Signed) CAIRNS, C. We approve, so far as relates to fees. f ROW. WINN. (Signed) I J ^ jj^ ELPHINSTONE. Dangerous Goods. M S Act "446. (1) A person shall not send or attempt to send by any 1894, vessel, British or foreign, and a person not being the master or owner .Sec. 446. Qf ^Yie vessel, shall not carry or attempt to carry in any such vessel, tions on ^^^ dangerous goods, without distinctly marking their nature on the carriage of outside of the package containing the same, and giving written notice dangerous of the nature of those goods and of the name and address of the sender 8°°*^^- or carrier thereof to the master or owner of the vessel at or before the time of sending the same to be shipped or taking the same on board the vessel. " (2) If any person fails without reasonable cause to comply with this section, he shall for each offence be liable to a fine not exceeding one hundred pounds; or if he shows that he was merely an agent in the shipment of any such goods as aforesaid, and was not aware and DANGEROUS GOODS. 391 did not suspect and bad no reason to suspect that the goods shipped by him were of a dangerous nature, then not exceeding ten pounds. "(3) For the purpose of this part of the Act the expression 'dangerous goods' means aquafortis, vitriol, naphtha, benzine, gun- powder, lucifer matches, nitro-glycerine, petroleum, any explosives within the meaning of the Explosives Act, 1875, and any other goods which are of a dangerous nature. "447. A person shall not knowingly send or attempt to send by, or carry or attempt to carry in, any vessel, British or foreign, any dangerous goods under a false description, and shall not falsely describe the sender or carrier thereof, and if he acts in contravention of this section he shall for each offence be liable to a fine not exceed- ing five hundred pounds. "448. (1) The master or owner of any vessel, British or foreign, may refuse to take on board any package or parcel which he suspects to contain any dangerous goods, and may require it to be opened to ascertain the fact. "(2) Where any dangerous goods, or any goods, which, in the judgment of the master or owner of the vessel, are dangerous goods, have been sent or brought aboard any vessel, British or foreign, without being marked as aforesaid, or without such notice having been given as aforesaid, the master or owner of the vessel may cause those goods to be thrown overboard, together with any package or receptacle in which they are contained ; and neither the master nor the owner of the vessel shall be subject to any liability, civil or criminal, in any court for so throwing the goods overboard. " 449. (1) Where any dangerous goods have been sent or carried, or attempted to be sent or carried, on board any vessel, British or foreign, without being marked as aforesaid, or without such notice having been given as aforesaid, or under a false description, or with a false description of the sender or carrier thereof, any court having Admiralty jurisdiction may declare those goods, and any package or receptacle in which they are contained, to be, and they shall thereupon be, forfeited, and when forfeited shall be disposed of as the court direct. " (2) The court shall have, and may exercise, the aforesaid powers of forfeiture and disposal notwithstanding that the owner of the goods has not committed any offence under the provisions of this Act relating to dangerous goods, and is not before the court, and has not notice of the proceedings, and notwithstanding that there is no evidence to show to whom the goods belong ; nevertheless the court may, in their discretion, require such notice as they may direct to be pellant, 104 practice on, 101, 102, 185, 186 time for, under C. C. Ad. Jur. Acts, 104, 186 under County Courts Act, 1888. 106, 186 Appeal from Board of Trade surveyors. See Courts of suevet, 363 from pilotage authority, 392 assessors on, 392, 393 objection to, 392, 393 remuneration of, 392 costs of, 393 institution of, 393 powers of judge on, 392 INDEX. 399 Appeal from pilotage authority, form of order in, 394 practice on, 393 time for, 393 rules for, 393 Appeal from Registrar's report, 181, 182 Appearance, 163, IG-i form of prtT3cii")e to enter, 315 Appointment of county courts for Admiralty purposes, 2-4 Orders in Council appointing Admiralty districts, 207-217 Appraisement, Registrar may order, of property under arrest on applica- tion of either party, 165, 269 fees on, 165 in salvage actions, 88, 293 plaintiff entitled to, 88 where not demanded, affidavit of value not to be challenged, 88 if dissatisfied with, parties must raise question at once, 88 court will not vary decree because property has realized less than appraised value, 88 costs of, 88 under M. S. Act, 1894, by receiver, 89 Arrest, only exercised in county court where property about to be removed from jurisdiction, 84 in proceedings against unknown defendant, in place of execution, 91 judgment in default of, 165 where property already under arrest of High Court, 85 practice on, 86, 290 affidavit to be filed, 86 nationality of vessel in necessary and wages actions to be stated, 86 rearrest on appeal, 85 warrant of, 86 form of, 310 execution of, 83, 84 when it may be effected, 86 disregard of, contempt of court, 86 Assaults on officers, 185, 238 Assessors, where trial by. See Trial, mode of, 69 nautical, 69 mercantile, 69, 72 appeal where judge has yielded to, 74 appointment of, 76 attendance of, 76 fine on non-attendance, 76 form of order, 321 fees of, 76, 77, 297, 298 on adjournment, 77, 297 functions of, 73 with respect to judge, 73 objection to, 77 payment of, 76, 77 practice where judge differs from, 73 where assessors divided, 74 400 INDEX. Assessors, removal of, 76 selection of, 77 summons to, 77 form of, 321 on reference, 77, 180 on appeals from pilotage authorities, 392, 395 objection to, 392 remuneration of,392, 393 summoning of, 393 Bail, affidavit of justification, 87 form of, 311 before whom taken, 87 bond, form of, 310 commission for obtaining, not recoverable against tort feasor, 137 costs of excessive, 153 execution against, 18i practice where taken before commissioner, 87 form of notice, 311 form affidavit of ser- vice, 312 practice where taken before Registrar, 87 sureties for, cross-examination of, 87 costs of, 87 justification of, 87 objection to, 87 Bill of lading. See Damage to cargo, 39 admission in words " shipped in good order and con- dition, 177 damages under, 143, 144 onus of proof under, 176 lyrima facie evidence of amount of goods shipped, 177 Board of Trade (Courts of survey) may ajopoint wreck commissioner as judge on court of survey, 373 to appoint one assessor to court of survey, 373, 377 may itself refer appeal to scientific referees, 375 or on request of appellant, 375 notice to, of appeal to court of survey, 377 notice to, of trial, 377 notice by, to complainant of trial, 377 notice by, of intention to appoint wreck commis- sioner, 377 party to proceedings in court of survey, 377, 378 report of court of survey to, 375, 379 form of, 388 (Emigrant ships) — may grant certificate to, after report of court of survey, 364 can enforce fine in lieu of forfeiture for proceeding to sea without clearance, 366 (Lights and fog signals) — may grant certificate after report of court of survey, 365 Eegulates scale of fees for survey on, 365 INDEX. 401 Board of Trade (Passenger ships) — can <:rant certificate to, after report of court of survey, 363 (Unseaworthy vessels)— British, 366 f(irei2;n, 369 can appoint surveyor to survey, 366 rletention of unseaworthy ships, 366 detaining officer appointed by, 368 detaining officer to report to, 367 detaining officer to have same powers as, 367 payment of costs and compensation for unreasonable detention by, 368, 372 costs of detention recoverable as salvage by, 368, 372 action against, for detention, 368 complainant liable to, for costs and compensation, 369 security may be required by, from complainant, 368,"369 surveyor may survey ship alleged unseaworthy by crew, 369 may settle scale of costs and fees for survey, 370 costs to be paid to, 370 pilotage authority in granting pilotage certificates to officers of ships, 395 Both to blame, costs where, 147 in actions by cargo-owner, 147 damages not two cross-liabilities where, 142 damages divided by Admiralty rule where, 141, 142 effect of rule where cargo-owner sues, 141 in life claims, 141 in personal injury claims, 141 Eottomrj' bond, county court no jurisdiction over, 61, 164 nor over claims for necessaries if secui'ed by, 26 lien. See Lien, 123, 124 master, when personally bound, cannot enforce wages claim to prejudice of, 124 court will marshal assets, 124 Breach of contract, carriage of goods, 143 loss of market, 143 non-delivery, assessment of damages, 143 ship not ready, damages, 144 British ship must be registered, or provisions limiting liability do not apply, 50 definition of, as regards passenger certificate, 365 detention of, 366, 370 Cargo, damage to, 39 Admiralty Court jurisdiction over, 39, 40 action in vera only under statute except in col- lision, 48 county court jurisdiction over, 39—42 damages. See Breach of contract, 143, 144 no maritime lien for, except in collision, 42 2 D 402 INDEX. Cargo, damage to, persons entitled to sue, 40 by collision, 42 claim by, against carrying ship, 48 costs where both to blame, 147 damages where both to blame, 48 lien for, 121 not liable for damages for, 48 persons entitled to sue, 47 Carc'o-owners' action against carrying ship, when in rem, 48 ° not liable for damages by collision to another vessel or cargo, 48 claim over against captain, 41 Charterparty, county court jurisdiction over, 39, 40, 42 maritime lien for collision where ship demised, 118 Cinque Ports, Court of Admiralty of, 112 appeal from, 111 appeal to, from county court, 111 costs in, 113 where less than £10 re- covered, 113 limits of jurisdiction of. 111 saving of jurisdiction of, in salvage, 14, 113 salvage commissioners in, jurisdiction of, 112 transfer from county court to, 111 Clear days. See Timk, 187 Collision, Admiralty Court jurisdiction over, 43 original jurisdiction of, 43 statutory jurisdiction of, 43 county court jurisdiction over, 42 query if as wide as Admiralty Court juris- diction, 47 between barges in body of county, 44 between ships, 44 ship defined, 44 between ship and other object, 45 foreign ship, 43, 44 for damage to cargo by, 47 under Lord Campbell's Act, no jurisdiction, 45 for personal injuries from, 46 against pilot for, no jurisdiction, 45 by and against queen's ships for. >S'ee Queen's ships, 52-55 costs in. See Costs, 147-150 damages for, principle restitutio in integrum, 136 must flow naturally from tort, 137 how ascertained, 136-143 consequential loss, 138 actual loss must be proved, 139 demurrage, 138 future engagement, 138 future profits, 139 INDEX. 403 Collision, damages for, consequential loss, fisliing, loss of, 140 salvage exj^enses and costs incurred, 137 huw ascertained, 140 in partial loss of cargo, 140 delav in delivery, 140 fall of market, 140 in partial loss of ship, 137 measure of damage, 138 evidence of, 138 total loss of cargo, 140 where shipowner owns cargo,140 total loss of freight, 140 by person advancing money to ship- owner, 140 total loss of ship, 136 evidence of market price, 136 damages where both ships to blame, 141, 142 loss of life, 141 personal injuries, 142 •where tug, tow, and third ship to blame, 143 no contribution between tort feasors, 143 lien for. See Liens, 117 not absolute, may be rebutted, 118 when attaches, 117, 118 chartered vessel, 118 priority of, 123 onus of pruof in, 176 Commencement of proceedings, 80, 157 Commission. See Witness, examikation of, 79, 80 Compensation for improper detention of unseaworthy ship. See Courts of survey, 368 action against Board of Trade for, 368 Compulsory pilotage, when exempts shipowner, 51 pilot must alone have been negligent, 51 pilot nuist be compulsorily employed, 51 pilot must have been in charge, 51 costs where plea raised. See Costs, 149, 150 notice where plea set up as defence, 167 Conference, fee on, when allowed, 192 *' Conflict of law," meaning of, as regards masters and seamen, M. S. Act, 38 Consent between solicitors in an action may be filed, 188 form of, 313 Consolidation of Arimiralty suits, 161 in salvage actions, 161 effect on costs, 153 query if power to, in county court, 161 at common law, 162 Consul, notice to, of commencement of action against foreign ship, 83 nominates surveyor where foreign ship detained, 3(39 assessor on court of survey, 369 404 INDEX. Copies, how obtained, 94, 188 fees ou, 356 Correspondence, costs of necessary, to be allowed in Admiralty actions, 190 Costs in discretion of judge, 64, 65, 145 bow discretion exercised, 65 sec. 9, C. C. Ad. Jur. Act, 1868, depriving judge of discretion, now repealed, 64 in actions within county court limit brought in High Court, 65 provisions of C. C. Ad. Jur. Act, 1868, as to, 44 practice under, 68 provisions of County Courts Act, 1888, as to, 66, 67 M. S. Act, 1894, as to, iu salvage, 65 Eules of Supreme Court as to, 67 in actions within county court limit brought in any other court, 146, 262 on appeal from pilotage authorities, 393 in Cinque Ports, 113 in county court — of amendment, 145, 252 certificate of judge for. See Costs, taxation of, 153 of cross-actions, where not tried in same court, 160 on counterclaims. See Scales of costs. where defendant does not appear, 145, 253 where plaintiff discontinues or fails, 146 where plaintiff does not appear, 145, 252, 253 where matter exceeds jurisdiction, 146, 261 with jury, judge must apportion costs of issues, 145 second action for same matter penalized, 146, 261 security for, where plaintiff does not reside in England or Wales, 146 form of solicitors undertak- ing for, 323 where common law action stayed, pending se- lected action, 153 in Court of Passage, Liverpool, 96 in courts of survey, 379 form of order for payment of, 389 of appeal from declaration of survey, 364 from emigration officer, 364 from refusal of certificate as to lights and fog signals, 364 for detention of ship, 368 taxation of, 368 Costs on appeal, 147 in collision, where both to blame, 148 where no negligence, 148 in salvage, 154 in collision causes, 147 alone to blame, 147 both to blame, 147 INDEX. 405 Costs in collision causes, cargo-owner suing, 147 compulsory pilotage pleaded, 149 where both to blame, 150 where counterclaim, 14i) where sole plea, 149 where other pleas, 149 inevitable accident, 148 third parties negligence, 148 two defendants, 150 three ships to blame, 150 Costs on reference, 150 where claimants fail to establish their claims, 151 Costs in salvage, 151 where agreement is sued on, 152 where apportionment made, 152 where consolidation order, 153 where counterclaim for negligence, 152 where misconduct on the part of salvors, 152 where negligence, 152, 153 tender, 151 in consolidated actions, 151 unnecessarily incurred, 153 Costs, scales of, 78, 190, 335 in Admiralty actions allowed on superior, 190 additional costs, 191 agency, 191 correspondence, 191 on counterclaims, how determined, 193 meaning of " recovered," 193 where judge certifies action, novel or difficult, or of importance, 192 where plaintiff recovers less than claim, 193 Costs on third party procedure, 146 Costs, taxation of, 188 Admiralty actions, superior scale, 190 additional costs, 191 agency, 191 correspondence, 191 certain costs not recoverable between party and party, 193 conference, fee on, allowed by registrar or judge, 192 defendant's costs, meaning of " recovered," 193 where two defendants, how appor- tioned, 194 employment of advocate, 195 interlocutory applications, costs on, 157 special order required, 157 judge's order required for certain, 190 application for, where to be made, 191 certificate how, and where entered, 192 discretion to award higher scale, 193 to deprive of certain items, 192 40 6 INDEX. Costs, taxation of, judge's order, discretien to order special items in Admiralty, 191 models and plans, allowance for, 105 no costs allowed not sanctioned by scale, 193 notice of, 189 objection to, 189 party and part}' to be taxed, 188 persons in fiduciary position, costs of, 193 refresher, when allowed, 192 review of, by registrar, 189 registrar to exercise his discretion, 193 how discretion exercised, 194 by judge, 190 solicitors, additional costs where counsel certified on arbitration or reference, 192 solicitor or client, only on application, 189 must be according to scale, unless under written agreement, 189 special fee, when allowed, 191 Counterclaim, involving matter outside county court jurisdiction, 57-59 inferior court can entertain, unless plaintifif objects in writing, 58, 59 transfer to High Court, 58, 59, 62, 293 form of order of transfer, 315 judgment may be entered for the balance, 168 particulars of, 168 compulsory pilotage, 167 scale of costs on, how ascertained, 193 C. C. Ad. Jur. Act, 1868... 197-204 sec. 1, short title, 1 sec. 2, appointment of county courts for Admiralty jurisdiction, 2 sec. 3, extent of jurisdiction conferred, 5 sub-s. (1) in salvage, 6 sub-s. (2) in towage, necessaries, and wages, 21 sub-s. (3) in damage by collision, 39 sub-s, (3) damage to cargo, 39 sub-s. (4) by consent of parties, 57 sec. 4, restrictions on county court juris- diction, 4 sec. 5, only such county courts as appointed to have Admiralty jurisdiction, 4 sec. 6, transfer by High Court on motion of either party, 60 sec. 7, transfer by county court where action exceeds jurisdiction as to amount, 59 sec. 8, transfer by county court to another county court or the High Court, 61 sec. 9, costs, 64 sec. 10, mode of trial, 69 sec. 11, nautical assessors, 69 sec. 12, enforcement of decrees, 74 INDEX. 407 C. C. Ad. Jur. Act, 1868, sec. 13, place of hearing, 75 sec. 14, appointment of assessors, 7G sec. 15, attendance of assessors, 76 sec. 16, removal of assessors, 76 sec. 17, remuneration of registrars, 78 sec. 18, scale of costs to be prescribed, 78 sec. ly, power of registrar to administer oaths, 79 sec. 20, power of registrar to take evidence, 79 sec. 21, where proceedings to be commenced, 80 sec. 22, arrest of property, 8-4 sec. 23, power to issue process, 90 sec. 24, registration of decrees and orders, 92 sec. 25, concurrent jurisdiction of court of passage, 94 sec. 26, appeal, where to, 97 sec. 27, appeal, time for, 104 sec. 28, appeal, agreement not to, 106 sec. 29, appeal, leave on further, 106 sec. 30, appeal, costs of, 107 sec. 31, appeal, no appeal unless amount exceeds £50... 108 sec. 32, appeal, conduct of sale in High Court on, 110 sec. 33, transfer and appeal to Cinque Ports, 111 sec. 34, Act to be read as one with other County Court Acts, 1, 113 sec. 35, practice regulated by general orders, 115 sec. 36, authority for making general orders, 115 C. C. Ad. Jur. Act, 1869... 205, 206 sec. 1, short title, 1 sec. 2, jurisdiction over agreements for hire of ships, and agreements or torts, in carriage of goods, 39 sub-s. (2), by agreement of parties, 57 sec. 3, proceedings under these Acts either iiv rem or in personam, 81 sec. 4, jurisdiction over damage to ships, 42 sec. 5, mercantile assessors, 69, 72 sec. 6, power to assessor of Court of Passage to make rules, etc., 94 sec. 7, commencement of Act, 206 C. C. Ad. Jur. Acts to be read as one with existing County Court Acts, 113 effect of County Court Act, 1888, on these existing acts, 114 County Court Admiralty jurisdiction, query if for repairs under sec. 4, Admiralty Court Act, 1861, 27 122 408 INDEX. County Court Admiralty jurisdiction, under Harbours,Docks, and Piers Clauses Acts, 47, 122 County court districts for Admiralty, 2 Order in Council conferring, 207 County courts, no other than those appointed to have Admiralty jurisdiction, 4 Court of Passage, Liverpool, 94 concurrent jurisdiction with County Court of Lan- cashire, 94 jurisdiction in amount the same as county court, 95 limits of jurisdiction of, 94 territorial limits less than county court, 95 practice in, 95 appeals from, 95 costs in, 96 execution in, 97 prohibition to, 96 Courts of survey, •'^ee Board of trade, 363-390 affidavits in, 378 appeal to, fn.m refusal to grant emigrant ship certiticate, 364 costs of the appeal, 364 from relusal to grant certificate of lights and fog signals, 364 costs of the appeal, 365 from declaration of survey on passenger steamship, 363 costs of the appeal, 364 from detention of unseaworthy British ship, 367, 371 costs of the appeal, 368 taxation of, 368 form of order for pay- ment of, 389 from detention of unseaworthy foreign ship, 369, 371 from detention fur improper loading, 371 computation of time, 379 constitution of, 373 costs and damages in, 379 form for order of payment of, 389 districts and officers of, 376, 380-386 fees in, 380, 389, 390 hearing in, 378 notice of appeal to, 377, 387 notice to pjroduce in, 378 service of notices and summons, 379 parties in, 377 powers and procedure of, 374 remuneration of judges of, 375 report of, 379 form of, 388 rules for, 375-390 publication of, 376 INDEX. 409 Courts of survey, summoning of, 377, 387 form fur, 377 Cross-actions to be tried in same court, or costs may be refused, 160 in collision may be tried on same evidence, 160 Crown. See Queen's ships expenses incurred by, on account of seaman may be recovered as wages, 35 proof of, on recovery, 35, 101 Damage to cargo. See Cargo, damage to Damage by collision. See Collision Damages for collision. See Collision, damages for Damages for breach of contract, 143 loss of market, 143 market price of goods, 143, 144 measure of, where goods not delivered, 144 ship not ready, 144 enhanced freight, 144 Damages in courts of survey. See Courts of survey, 379 Dangerous goods, definition of, 391 forfeiture of, 391, 392 penalty for not complying with provisions as to, 390 power of master or shipowner to deal with, 391 restriction on carriage of, 390 sending, under false description, 391 Decrees and orders, enforcement of, 74, 90, 91 registration of, 92, 93 Default of appearance, 164 judgment by, 164 where warrant of arrest not served, 165 trial in, 166 execution in, 91, 92 form of prsecipe, 307 Defence, special, 167 in answer to counterclaim, 167 in collision actions, where compulsory pilotage relied on, 167 Defendants' costs, where two or more, 194 unknown, enforcement of judgment against, 91, 92 proceedings on discovery of, 91 service of notice on, 92 vessel of, not to be taken in execution in county court, 184 sale of, how obtained, 184 Demurrage, actual loss must be proved, 139 what can be claimed as, 138 future engagement, 138 Depositions, discovery and inspection of, 171 when evidence, 1.31, 132 privilege where one vessel foreign, 171 Desertion, certificate of, to be obtained when abroad, 37 forfeiture of wages on, 37 proof of, 129 410 INDEX. Desertion, unseaworthiness of ship defence to, 369 Detaining officer, appointment of, 368 powers of, 367, 368 report of, 367 removal of, 368 Detention of British ship when unseaworthy, 366, 371 form of order for, 388 appeal to court of survey, 367 compensation for, 368, 372 complainants to pay costs and compensation, 369 costs of, 368 damages for, 372 security for compensation for, 368 where crew complainants, 369 of foreign ship where unseaworthy, 369, 371 appeal to court of survey, 369, 371 for improper loading, 371, 372 Discovery, application of ordinary rules to Admiralty actions, 170 costs of unnecessary, 153 documents ia collision and salvage cases, 171 depositions, 132, 171 interrogatories, 170 logs, 171 protests, 172 survey reports, 171 where cargo-owners sue for collision, 172 where foreign defendants, 172 notice to admit and produce, 172 time for, 172 notice to admit facts, 172 queen's ships parties, 171 security for, 172 Divisional Court, appeals to, 97, 359 how formed, 100 Emigration ship, certificate. See Courts of survey, 364 definition of, 366 Employers' Liability Act does not extend to seamen, 46 Evidence, 126 Evidence, admissibility of documents produced from proper custody,126 of copies duly obtained, 126 proof of attestation not required, 127 accouut of expenses incurred by Crown for distressed seamen, 34 bill given to seamen left abroad, 130 certificate of consul of expenses incurred by Crown for illness of seamen, 131 depositions, 131 letters and statements by master pilot and seamen, 135 log lightships, 135 official, 133 ship's, 134 protests, 135 INDEX. 411 Evidence, admissibility of, record of officers' certificates at Board of Trade, 133 register book and certificates of ship's registry, 127 ship's register not conclusive in suits for necessaries, 25 prima facie evidence of owner- sliip, 128 may be rebutted, 128 error in register, 128 fishing boat register conclusive for certain purposes, Vl'd report of pilot to Trinity House, 135 report on bad provisions on complaint by crew, 131 affidavits, how used in courts of survey, 378 at reference, 181 may be disregarded unless deponent cross- examined, 182 of market price in cases of total loss, 136 of repairs rendered necessary by collision, 138 seamen, agreement as to wages, etc., need not be produced, 129 award of superintendent as to disputes, 35, 129 desertion, liovv proved, 129 certificate of, how obtained, 37 expenses incurred by Crown for, 34, 130 loss of, proof of having been on board, 130 offences, proof of, 37 settlement of wages, 129 See also Onus of proof, 176 Examination of witnesses.