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at Liverpool, in the sum of 1,3001. On the 23rd of solicitors would take measures to prevent the release October, 1863, a bail-bond to that amount was then being taken out upon au improper bail-bond, or at any signed before a commissioner by John George Widdi- rate, that the plaintiff is now entitled to a second combe and Charles Bayley Bell, and sent by Messrs. arrest of the vessel, in order that he may recover his Duncan, Squarey and Blackmore, the defendant's soli- real security or obtain a sufficient bail. citors, to Mr. Rothery, the defendant's proctor, in

Upon this judgment having been delivered, the defendLondon, to be filed in the registry. On the 24th (Saturday), at one o'clock, the usual notice of the tiff's solicitors tendering Mr. Widdicombe and Mr. Mac

ant's proctor on the same day served notice on the plainhond was given by the defendant's proctor, to Messrs. Sharpe and Parker, the plaintiff's solicitors in London ; viz., on the 4th of November, filed in the registry a

Carman as bail, and upon the elapse of twenty-four hours, on Monday the 26th, about 3 p.m., the bail-bond was filed in the registry, and a release of the ship forth- bail-bond executed by thein before a Commissioner in with thereupon taken out. The release was then

the country with affidavits of justification. The plaintiff placed in the hands of the Marshal of the Court, who, however, had filed a caveat against the release of the by that post, instructed the collector of customs ; vessel

, and a correspondence ensued between the und on Tuesday the 27th, that officer removed the parties, the plaintiff's solicitor objecting to the suffi

ciency of Mr. Widdicombe, and refusing to remove arrest of the ship. To ground the motion for a second arrest, the plaintiff filed an affidavit, by Mr. the caveat. The defendant then filed a notice of Clare, his solicitor in Liverpool, to the following effect: motion to order the caveat to be removed, and, therethat Mr. Clare first heard of the names of the sureties upon, the plaintiff filed two affidavits to the effect on the morning of Monday the 26th, that, a few hours that Mr. Widdicombe was not sufficient bail. afterwards, a clerk from the defendant's solicitors

11 Nov. 1863. called upon him to inquire whether he would accept

Lushington, in support of the motion. the hail, and he replied, that the bail was bad on the face of it, because the two sureties were partners, and

R. S. Williams, contrà. that he could not waive the objection without instruc

Rules 51 and 52 of the Admiralty Court Rules, tions, Mr. Clare then wrote to Messrs. Duncan & Co., 1859, were referred to. refusing to accept the bail, and the letter reached its

DR. LUSHINGTON.--I shall refer the matter to the destination about 2 p.m. on the Monday afternoon.

Registrar to determine with all despatch. If the The Admiralty Rules, 1859, which were cited, were objection to the bail prove unfounded, the plaintiff rules 42 and 43.

must pay all costs and damages occasioned by the R. G. Williams, in support of the motion. The

detention of the ship. zureties were partners, and the plaintiff's solicitor at once objected.

Adm.

} THE ELÉONORE.

17 Nov. 1863. Lushington, contra. The full time elapsed before the release was taken out. The plaintiff was guilty of

Before the Right Honourable Dr. LUSHINGTON. laches, he should have telegraphed to London for a Illegal Arrest-Salvage services to Property of fatent release ; any objection now is too late.

less value than 10001.Costs and DamagesDR. LUSHINGTON.-The rules of the Court as to Appearance under Protest Reference to taking bail have two objects in view; one, that the Registrar-17 & 18 Vict. c. 104, s. 468, and property arrested should be detained under the hand of 25 & 26 Vict. c. 63, 48. 49, 50, the law ar short a time as possible ; the other, that

No general rule can be laid down as to condemning the plaintiff shonld not lose the real security of the ship, until he has obtained the security of good and salvors in costs and damages for arresting in the safficient sureties. In the present case I think the Admiralty Court property of less value total than

10007. plaintiff's solicitors in Liverpool were guilty of no delay. They objected at first informally, and then

The fact that the arrest was made without verbal formally by letter, on the very day on which they claim, and for a sum disproportionate to the value of received notice of the bail. I cannot hold that a

the property and the services rendered, will be evidence fuere omission to use the clectric telegraph to London that the arrest was made negligently. amounts to negligence, and the objection that the

If the Court has not in fact jurisdiction, a defendant sureties are partners is one recognised by the practice is not prejudiced by an absolute appearance. of this Court. Under these circumstances, looking

A reference to the Registrar as to damages will not be especially to the scrupulous good faith which must be ordered, where the Court can satisfactorily dispose of the required of all parties in the observance of these rules question. relating to bail, I am of opinion that the plaintiff's This was a motion on behalf of the owners of the solicitors were entitled to expect that the defendant's French coasting schooner “Eléonore" to condemn the

cases.

owners of the steamship “Harkaway,” in the damage Lushington, in support of the motion. and loss consequent upon the illegal arrest of the 1st. In all cases where the property arrested falls Eléonore, and also in costs, and to refer the dainage short of 10001. the salvors ought to be condemned in and loss to the Registrar and merchants.

costs and damages. The facts of the case were as follows :

2nd. The circumstances of this case show wilful On the 11th of July, 1863, the “Eléonore ” was lying abuse of the process of the Court. in the old harbour at the port of Hull, and discharging

Dr. Spinks, contra. her cargo alongside a quay. A fire broke out in the warehouse adjoining the premises where the cargo was

1st. There was no mala fides or crassa negligentia, being discharged, and the “ Harkaway,” a steam- Evangelismos, Swa. Ad. 378. vessel, dragged the “ Eléonore" away from her berth, The plaintiffs corrected their mistake as soon as they out of reach of the fire. On the 14th, the “Eléonore” found it out. was chartered by her master to load coals at Hull for

2nd. The defendants were guilty of laches : La Rochelle ; and on the following day began loading

(a) They did not put in an appearance under protest, accordingly. On the 15th of July, the owner of the

The Leda, Swa. Ad. 40. Harkaway," without giving notice of any claim upon

(6) They did not apply to the receiver for a valua. the master of the " Eléonore,” instituted a cause of tion. salvage in the Admiralty Court against the “Eléonore," her freight, and cargo, in the sum of 8001. On the general rule as to costs and damages applicable to all

Dr. LUSHINGTON.--It is impossible to lay down 3 16th, the “Eléonore” and her cargo were arrested by

Great injustice might be done if costs and the plaintiffs. On the 18th, the proctor for the owners of the “ Eléonore" and her cargo put in an absolute freight, and cargo, after arrest, proved to be of less

damages were allowed in every case where a vessel, appearance on their behalf, at the same time suggesting value than 10001. The Court must look to all the to the plaintiff's proctor, that the value of the property circumstances. In the present instance the arrest was arrested was less than 10001.

On the 22nd, the for 8001., and, as against this, it appears that the defendant's proctor filed an affidavit, that the value of whole value of the vessel, freight, and cargo, amounts the vessel, freight, and cargo, amounted to 8321. 03. 1d.

to no more than 8321. Os, id., and the real value of On the 24th, the plaintiff's proctor consented to a

the salvage services have been estimated by the magisrelease, and on the 25th the release issued, the vessel having thus been under arrest ten days. On the tion the entry of actions in grossly disproportionate

trate at only 101. The Court views with disapproba27th of July, the “Eléonore" and her cargo were rearrested by the comptroller of customs or receiver of without having given notice of any claim to the

amounts. Again, the plaintiffs arrested the vessel wreck at the port of Hull, and on the 17th of August, master, who was the owner's agent in this country, the local stipendiary magistrate awarded to the owners

and without taking any steps to ascertain her value. of the “Harkaway” for the salvage services the sum

I think the arrest of the vessel under these circumof 101.

stances, and for a sum of 8001., was an act of crassa The master of the ship averred in his affidavit, that negligentia on the part of the plaintiffs. It is true he had been unable to procure bail during the arrest of that the plaintiffs withdrew from the action as soon the vessel in the Admiralty Court, and that the owners

as the value of the vessel was ascertained ; but having had lost 677. 48. by the detention ; the above motion initiated proceedings, they are responsible for the was now made on behalf of the defendants to condemn

The fact that the appearance of the defendants the plaintiffs in costs and damages from the date of

was not under protest is immaterial ; for, as soon as it the illegal arrest, and to refer the damages to the is shown that the value of the property arrested is Registrar and merchants.

under 10001., the Court ceases to have jurisdiction The following statutes were cited in the argument,

and must hold its hand. Merchant Shipping Act, section 468 ; and Amend

The defendants are entitled to costs.

As to ment Act, 1862, sections 49, 50.

damages, I might ascertain them exactly by referring The principal Act, section 468, appoints that the them to the Registrar and merchants ; but, to avoid receiver of wreck shall detain salved property until

expense, the Court, if it can satisfactorily dispose of payment is made or process issued. The Amendment the question, will refrain from ordering a reference, Act, section 49, takes away, as decided in the William and John (1 N. R. 484), the jurisdiction of the Admi- 201. in addition to the costs.

I think 671. an excessive claim for damages ; I awal ralty Court in all cases where the value of the property saved does not exceed 10001. ; and section 50

Dr. Spinks asked leave to appeal. provides that either party (i. e., salvors or owners,) may apply to the receiver for a valuation of the pro- Dr. LUSHINGTON.--I think leave is unnecessary, perty.

but I give leave.

same.

EQUITY

Lords Justices. , Re WHEAL EMILY MINING use of their names was a mere colourable and fraudu.

} 19 Nov. 1863. COMPANY. Cox's CASE. lent transaction, of which the real shareholder could

not avail himself to get rid of his liability, Company-Winding-up-Contributory-Nomi

Hyam's Case, 1 De G. F. & J. 75; nal ShareholderCompanies Act, 1862, s. 200.

Costello's Case, 2 De G. F. & J. 302 ; Clook 300 shares in an unregistered cost-book mining

Chinnock's Case, John. 714. compay, but in order to raise the value of the shares The appellant, as a sleeping partner, was liable in by increasing the apparent number of shareholders, respect of these shares to pay the debts of the com. ahused 100 of the shares to be transferred into the name pany, and was consequently a contributory under secof G, and 100 into the name of P; G and P signed tion 200 of the Companies' Act, 1862. the transfers, and allowed their names to be placed on

Fooks, in reply, contended that there was a bona fide the register of shareholders, but C paid the calls, and

trusteeship was the real owner of the shares.

The company being wrund up under the Companics' KNIGHT BRUCE, L.J., said, that the appellant was Act, 1862 :

substantially the owner of the shares. Though the Held, by KNIGHT BRUCE, L.J., that under section nominees might, in one sense, be called trustees, it 200 of the Act, and by TURNER, L.J., that inle- was not a trust of the ordinary kind; their names had Pendiently of the Act, C was rightly placed on the list been used for the mere purpose of deluding the world of contributorics in respect of the whole 300 shares. by representing the number of shareholders as greater

than it really was. This was an appeal (remitted to the Court of Appeal

He was not prepared to say, that, if the Companies' in Chancery by the Lord Warden of the Stannaries) Act

, 1862, had not been passed, he should have decided from a decision of the Vice-Warden of the Stannaries, otherwise ; but, looking to the language of that Act whereby John Cox was placed on the list of contri. batories of the above-named company, now being

and the facts of the case, he could not doubt that the Found up under the Companies' Act, 1862, in respect of the whole 300 shares.

appellant was rightly made a contributory in respect of 300 shares.

At, or shortly after, the formation of the company, TURNER, L.J., said, that he was not prepared to give Thich was an unregistered company on the cost-book

an opinion upon the construction of the 200th section principle, Cox agreed with Hugh Stephens, the purser of the Companies Act, 1862; but he was clearly of of the mine, to take 300 shares, but in order to raise the opinion that there was no trust, and that the appellant, value of the shares in the market by increasing the as the real owner of the shares, was rightly made a apparent number of shareholders, it was arranged contributory in respect of them. between Cox and Stephens that 100 shares only should be transferred to Cox, and the remaining 200 shares

Minute. — Appeal dismissed with costs, without should be placed in the names of Giles and Pulley, nomi- prejudice to any application which may be made to nees of Cox. Giles and Pulley accordingly signed the have the name of Stephens placed on the list, together transfers, and were registered as holders of 100 shares with the appellant's name. a-piece. Cox, however, paid the calls on the 300 shares, and it was admitted that either Cox alone, or

Lords Justices. Cox and Stephens jointly, were the beneficial owners

} COOKES v. COOKES.' of the shares.

19 Nov. 1863.

Practice--Taking Accounts15 & 16 Vict. Fooks, (Glasse, Q.C., and Roxburgh, with him) for the appellant.

C. 86, s. 54. The trustee, and not the cestui qui trust, ought to

In taking accounts under a decrce, books of account be placed on the list of contributories,

cannot be admitted as primâ facie evidence, under section 2 Lindley on Partnership, 1092 ; and Supplement, 54 of the 15 & 16 Vict. c. 86, without the special direc167, and cases there cited.

tion of the Judge in every case. Baggallay, Q.C., and Roucliffe, for the respondent The decree in this suit having directed an account (the person having the carriage of the winding up). against one of the defendants, the Chief Clerk of ViceGiles and Pulley were not bona fide trustees ; the Chancellor Stuart, in taking the account, admitted

VOL. III.

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c. 86.

certain books of account as primâ facic evidence of the solicitors at Norwich, had been sworn before a person truth of the matters therein contained, although no in his own employment. They cited, order or direction to that effect had been made by the Re Hogan, 3 Atk. 813 ; Court, under the 54th section of the 15 & 16 Vict. Wood v. Harpur, 3 Beav. 290;

Hopkin v. Hopkin, 10 Ha. App. ii. A motion was thereupon made before the Vice- 2nd. The discretion exercised by the Vice-ChanChancellor on behalf of the plaintiff, that these books cellor in having ordered an immediate sale was not should be rejected, and having been refused, with warranted by the facts, and the defendant was entitled costs, was renewed by way of appeal before the Lords to the usual six months' time. Justices.

Giffard, Q.C., and Kay, for the plaintiffs, argued, Malins, Q.C., and G. L. Russell, for the appel- 1st. That the appellant's contention was untenable. lant.

The rule was confined to cases where the oath was

alministered by the solicitor on the record or his Bacon, Q.C., and Martineau, for the respondents.

clerk. They were borne out in this contention by The motion having been opened, the Lords Justices the practice at Common Law, sent for the Chief Clerk, and, having ascertained that

Read v. Cooper, 5 Taunt. 89; no order had been made for the admission of the books

Williams v. Hockin, 8 Taunt. 435 ; under the 54th section, informed him that a special Goodtitle v. Badtitle, 8 Term Rep. 638. direction of the Judge was necessary in every case The latter case did not appear to have been brought before books of account could be so admitted as evi- under the notice of the Master of the Rolls in dence.

Williams v. Hockin (loc. cit.). The motion was then by consent treated as a motion

2nd. The facts had warranted the Vice-Chancellor by the defendants for an order for the admission of the in ordering an immediate sale of the mortgaged books under the 54th section of the statute, and ulti

property. mately the order was made, upon the defendants consenting that the persons in whose handwriting the Rolt, Q.C., in reply. books were should be treated as their witnesses, and

The above objection to the admission of the affidavit be open to cross-examination by the plaintiff,

had likewise been taken on the hearing in the Court Lodge v. Prichard, 3 De G. M. & G. 906;

below, and had been overruled by the Vice-Chancellor, Ewart v. Williams, 7 De G. M. & G. 68;

(See 2 N. R. 443). Newberry v. Benson, 23 L. J. Ch. 1003, were referred to.

TURNER, L.J., said, that the first question was, whether an affidavit made by a plaintiff in a cause sworn

before a person in his service could be received. It Lords Justices. FOSTER v. HARVEY.

would appear that the principle on which a solicitor on 24 Nov. 1863.

the record or his clerk could not take an affidavit, was Practice- Affidavit-Before whom to be Sworn – that he and his clerk must be assumed to have an in

Mortgage-Foreclosure or Sale-Immediate timate knowledge as to the evidence which would prove Sale.

material or immaterial to the success of the cause, but

that principle did not apply in the case of a person Per TURNER, L.J., Ksigut Bruce, L.J., dissen- merely in the employment of the plaintiff. There was no ticnic.

ground for assuming that such a person was acquainted An affidavit is admissible in evidence, though it has with the circumstances connected with the suit in been sworn before the clerk of the plaintiff in the consequence of such relationship. Were such a supcause, the plaintiff' not being himself a solicitor on the position to be maintained, it would be impossible to record.

predicate to what extent the principle might not be Order of Vice-Chancellor, for an immediate sale, extended. His Lordship considered, therefore, that affirmed.

the rule in question ought to be confined to the case This was a suit by a first mortgagee for foreclosure of solicitors on the record and their clerks.

In respect to the second question, he considered that or sale, in which the Vice-Chancellor had directed an immediate sale (2 N. R. 442). From that decision the Vice-Chancellor had only exercised the discretion

given him by the statute, and there were no circumChidley, one of the defendants, now appealed as

stances now before the Court to warrant them in against the whole decree.

exercising a contrary discretion. Rolt, Q.C., and Swanston, however, opened the case for the appellant, and contended,

KNIGHT BRUCE, L.J., said, that on the first ques1st. There was no evidence before the Court, as tion he had the misfortune to disagree with both the the affidavit made in the cause by the plaintiff, who Vice-Chancellor and the Lord Justice Turner, as he was a partner in the firm of Foster, Burrows & Co., considered that the objection against the admission

}

of the affidavit could be sustained. But as the Lord to be incurred by reason of the issuing of the fi. fa., Justice agreed with the Vice-Chancellor the objection and all the costs, charges, and expenses, of or relating must fail.

to the sale or sales of the crops, &c., or of preparing, On the second point he acceded to the view taken engrossing, and executing the indenture, and of exeeutby the Vice-Chancellor.

ing a certain indenture of mortgage, bearing even date Minute-Appeal dismissed with costs.

therewith, or in any wise relating thereto ; secondly, to
pay all costs, charges, and expenses, which the trustees
or trustee might incur or be put to, in or about the

execution of the trusts thereby created, or in relation Master of the Rolls, } Maw v. PEARSON.

thereto ; thirdly, to pay rates, servants' wages, &c. ; 14, 17 Nov. 1863.

and fourthly, to pay the defendant Pearson a certain

debt of 30001, and interest. Practice-Creditors' Trust Deed - Taxation

Pearson's debt was also amply secured by the mortSammons to Discharge Certificate-General gage of even date, which comprised the plaintiff's Objections.

freehold property.

The present suit was instituted to administer the Wher c a deed of arrangeinent with creditors contained

trusts of the indenture of assignment, and, on the causo e trust to pay the expenses attending the execution of a coming on to be heard before the Master of the Rolls, ortaia radenture of mortgage, or in any wise relating his Honour directed an account of all moneys received thereto, and all costs, charges, and expenses, which the trustees might be put to in or about the execution of the by Robert Sykes, during his life, and after his

death, by the defendant John Sykes, his real and trusis, or in rclation thereto:

Held, that the trustec was justificd in defending personal representative. In taking the accounts, John actions against the debtor, and providing abstracts of of a bill of costs of the defendant Carnochan,

Sykes claimed in his disbursements the amount the mortgage property.

a solicitor, alleged to be incurred by Robert The Taxing Master disallowed a general objection to a bill of costs as not properly chargeable under a trust out of the trust funds : the bill was referred to

Sykes, as trustee of the indenture, and paid by him deed, on the ground that the words of the trust deed the proper Taxing Master, who reduced the amount corcred all expenses incurred by the trustee in the pro- from 5401. to 4831. per matters of the trust, and that the majority of the items of costs were incurred with the plaintiff's con

The plaintiff being dissatisfied with such taxation

delivered objections thereto. sent and some almitted by the plaintiff's bill. The Master also disalloved an objection to particular

1st. He objected generally to the whole bill, that it items, as having been unnecessarily and improperly and expenses, properly chargeable against the late

was not, nor was any part of it, a bill of costs, charges, incurred, on the ground that such costs had been proved Robert Sykes, under the trust deed, and that the same before him to have been properly incurred :

ought not to have been allowed to Robert Sykes as Held, that the above answers were sufficient.

a charge against the plaintiff or his estate; and, moreOn an objection to a solicitor's charge for journcys, over, that before the bill of costs was delivered his afularit that they were necessarily and properly

to or paid by Robert Sykes, his authority, under the taken for the benefit of the trust estates,” was, in the trust deed, had ceased, and the trusts thereof absence of coidence to the contrary, held sufficient.

determined. On a general objection being taken to a Chief Clerk's certificate, where some only of the items were in dispute,

2nd. Assuming that some part of the bill of costs the case was aljourned to Chambers, and the plaintif the trust deed, he objected that particular items ought

was chargeable against the plaintiff or his estate under ordered to furnish a list of the items to which he not to have been allowed, as having been unneceschjected.

sarily and improperly incurred. This was a petition in the suit of Maw v. Pearson, The Taxing Master, in his answers to the plaintiff's reported 28 Beav. 196. The defendant Pearson had objections, disallowed the first general objection, obtained a judgment against the plaintiff, and issued because no words of a trust deed could more exexecution ; the plaintiff then made an arrangement pressly or strongly covenant for the allowance of all with Pearson to take a security on his growing the costs, charges, and expenses incurred by the crops, furniture, &c.; and the execution was with trustee in the proper matters of the trust ;" and because

In pursuance of that arrangement, the it had been proved before him that the great majority plaintiff

, by an indenture, dated the 8th of May, of the items of cost were incurred with the full know1858, assigned all his growing crops, furniture, &c., ledge and consent of the plaintiff, whose estate was which had been seized under the execution, to the subject of the trust ; and further, because in his Pinbert Sykes, his executors, &c., upon trust to bill of complaint the plaintiff admitted that the bill of sell them, and stand possessed of the purchase. costs contained divers entries to which he did not money upon trust, first to pay all costs incurred, or object, and he was willing that the same, as being

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