at Liverpool, in the sum of 1,3007. On the 23rd of October, 1863, a bail-bond to that amount was then signed before a commissioner by John George Widdicombe and Charles Bayley Bell, and sent by Messrs. Duncan, Squarey and Blackmore, the defendant's solicitors, to Mr. Rothery, the defendant's proctor, in London, to be filed in the registry. On the 24th (Saturday), at one o'clock, the usual notice of the bond was given by the defendant's proctor, to Messrs. Sharpe and Parker, the plaintiff's solicitors in London; on Monday the 26th, about 3 p.m., the bail-bond was filed in the registry, and a release of the ship forthwith thereupon taken out. The release was then placed in the hands of the Marshal of the Court, who, by that post, instructed the collector of customs; and on Tuesday the 27th, that officer removed the arrest of the ship. To ground the motion for a second arrest, the plaintiff filed an affidavit, by Mr. Clare, his solicitor in Liverpool, to the following effect: that Mr. Clare first heard of the names of the sureties on the morning of Monday the 26th, that, a few hours afterwards, a clerk from the defendant's solicitors called upon him to inquire whether he would accept the bail, and he replied, that the bail was bad on the face of it, because the two sureties were partners, and that he could not waive the objection without instructions. Mr. Clare then wrote to Messrs. Duncan & Co., refusing to accept the bail, and the letter reached its destination about 2 p.m. on the Monday afternoon. The Admiralty Rules, 1859, which were cited, were rules 42 and 43. R. G. Williams, in support of the motion. The sureties were partners, and the plaintiff's solicitor at once objected. Lushington, contra. The full time elapsed before the release was taken out. The plaintiff was guilty of laches, he should have telegraphed to London for a caveat release; any objection now is too late. DR. LUSHINGTON.-The rules of the Court as to taking bail have two objects in view; one, that the property arrested should be detained under the hand of the law as short a time as possible; the other, that the plaintiff should not lose the real security of the ship, until he has obtained the security of good and sufficient sureties. In the present case I think the plaintiff's solicitors in Liverpool were guilty of no delay. They objected at first informally, and then formally by letter, on the very day on which they received notice of the bail. I cannot hold that a mere omission to use the electric telegraph to London amounts to negligence, and the objection that the screties are partners is one recognised by the practice of this Court. Under these circumstances, looking especially to the scrupulous good faith which must be required of all parties in the observance of these rules relating to bail, I am of opinion that the plaintiff's solicitors were entitled to expect that the defendant's solicitors would take measures to prevent the release being taken out upon an improper bail-bond, or at any rate, that the plaintiff is now entitled to a second arrest of the vessel, in order that he may recover his real security or obtain a sufficient bail. Upon this judgment having been delivered, the defendant's proctor on the same day served notice on the plaintiff's solicitors tendering Mr. Widdicombe and Mr. Mac Carman as bail, and upon the elapse of twenty-four hours, viz., on the 4th of November, filed in the registry a bail-bond executed by them before a Commissioner in the country with affidavits of justification. The plaintiff however, had filed a caveat against the release of the vessel, and a correspondence ensued between the parties, the plaintiff's solicitor objecting to the sufficiency of Mr. Widdicombe, and refusing to remove the caveat. The defendant then filed a notice of motion to order the caveat to be removed, and, thereupon, the plaintiff filed two affidavits to the effect that Mr. Widdicombe was not sufficient bail. owners of the steamship "Harkaway," in the damage and loss consequent upon the illegal arrest of the Eléonore, and also in costs, and to refer the damage and loss to the Registrar and merchants. The facts of the case were as follows: On the 11th of July, 1863, the "Eléonore" was lying in the old harbour at the port of Hull, and discharging her cargo alongside a quay. A fire broke out in the warehouse adjoining the premises where the cargo was being discharged, and the " Harkaway," a steamvessel, dragged the "Eléonore" away from her berth, out of reach of the fire. On the 14th, the "Eléonore" was chartered by her master to load coals at Hull for La Rochelle; and on the following day began loading accordingly. On the 15th of July, the owner of the "Harkaway," without giving notice of any claim upon the master of the "Eléonore," instituted a cause of salvage in the Admiralty Court against the "Eléonore," her freight, and cargo, in the sum of 8007. On the 16th, the "Eléonore" and her cargo were arrested by the plaintiffs. On the 18th, the proctor for the owners of the "Eléonore" and her cargo put in an absolute appearance on their behalf, at the same time suggesting to the plaintiff's proctor, that the value of the property On the 22nd, the defendant's proctor filed an affidavit, that the value of the vessel, freight, and cargo, amounted to 8321. Os. 1d. On the 24th, the plaintiff's proctor consented to a release, and on the 25th the release issued, the vessel having thus been under arrest ten days. On the 27th of July, the "Eléonore" and her cargo were rearrested by the comptroller of customs or receiver of wreck at the port of Hull, and on the 17th of August, the local stipendiary magistrate awarded to the owners of the "Harkaway" for the salvage services the sum of 10%. arrested was less than 10007. The master of the ship averred in his affidavit, that he had been unable to procure bail during the arrest of the vessel in the Admiralty Court, and that the owners had lost 671. 4s. by the detention; the above motion was now made on behalf of the defendants to condemn the plaintiffs in costs and damages from the date of the illegal arrest, and to refer the damages to the Registrar and merchants. The following statutes were cited in the argument, Merchant Shipping Act, section 468; and Amendment Act, 1862, sections 49, 50. The principal Act, section 468, appoints that the receiver of wreck shall detain salved property until payment is made or process issued. The Amendment Act, section 49, takes away, as decided in the William and John (1 N. R. 484), the jurisdiction of the Admiralty Court in all cases where the value of the property saved does not exceed 10007.; and section 50 provides that either party (i. e., salvors or owners,) may apply to the receiver for a valuation of the property. Lushington, in support of the motion. 1st. In all cases where the property arrested falls short of 10007. the salvors ought to be condemned in costs and damages. 2nd. The circumstances of this case show wilful abuse of the process of the Court. Dr. Spinks, contra. 1st. There was no mala fides or crassa negligentia, Evangelismos, Swa. Ad. 378. The plaintiffs corrected their mistake as soon as they found it out. 2nd. The defendants were guilty of laches: (a) They did not put in an appearance under protest, The Leda, Swa. Ad. 40. (b) They did not apply to the receiver for a valuation. cases. DR. LUSHINGTON.-It is impossible to lay down a general rule as to costs and damages applicable to all Great injustice might be done if costs and damages were allowed in every case where a vessel, freight, and cargo, after arrest, proved to be of less value than 1000l. The Court must look to all the circumstances. In the present instance the arrest was for 8007., and, as against this, it appears that the whole value of the vessel, freight, and cargo, amounts to no more than 8327. Os. 1d., and the real value of the salvage services have been estimated by the magistrate at only 101. The Court views with disapproba tion the entry of actions in grossly disproportionate amounts. Again, the plaintiffs arrested the vessel without having given notice of any claim to the master, who was the owner's agent in this country, and without taking any steps to ascertain her value. I think the arrest of the vessel under these circumstances, and for a sum of 8007., was an act of crassa negligentia on the part of the plaintiffs. It is true that the plaintiffs withdrew from the action as soon as the value of the vessel was ascertained; but having initiated proceedings, they are responsible for the same. The fact that the appearance of the defendants was not under protest is immaterial; for, as soon as it is shown that the value of the property arrested is under 10007., the Court ceases to have jurisdiction and must hold its hand. The defendants are entitled to costs. As to damages, I might ascertain them exactly by referring them to the Registrar and merchants; but, to avoid expense, the Court, if it can satisfactorily dispose of the question, will refrain from ordering a reference. I think 677. an excessive claim for damages; I award 201. in addition to the costs. Dr. Spinks asked leave to appeal. DR. LUSHINGTON.-I think leave is unnecessary, but I give leave. EQUITY. Lords Justices. 19 Nov. 1863. } Re WHEAL EMILY MINING Company-Winding-up-Contributory- Nominal Shareholder-Companies' Act, 1862, s. 200. C took 300 shares in an unregistered cost-book mining company, but in order to raise the value of the shares by increasing the apparent number of shareholders, caused 100 of the shares to be transferred into the name of G, and 100 into the name of P; G and P signed the transfers, and allowed their names to be placed on the register of shareholders, but C paid the calls, and was the real owner of the shares. The company being wound up under the Companies' Act, 1862: Held, by KNIGHT BRUCE, L.J., that under section 200 of the Act, and by TURNER, L.J., that independently of the Act, C was rightly placed on the list of contributories in respect of the whole 300 shares. This was an appeal (remitted to the Court of Appeal in Chancery by the Lord Warden of the Stannaries) from a decision of the Vice-Warden of the Stannaries, whereby John Cox was placed on the list of contributories of the above-named company, now being wound up under the Companies' Act, 1862, in respect of 300 shares. At, or shortly after, the formation of the company, which was an unregistered company on the cost-book principle, Cox agreed with Hugh Stephens, the purser of the mine, to take 300 shares, but in order to raise the value of the shares in the market by increasing the apparent number of shareholders, it was arranged between Cox and Stephens that 100 shares only should be transferred to Cox, and the remaining 200 shares should be placed in the names of Giles and Pulley, nominees of Cox. Giles and Pulley accordingly signed the transfers, and were registered as holders of 100 shares a-piece. Cox, however, paid the calls on the 300 shares, and it was admitted that either Cox alone, or Cox and Stephens jointly, were the beneficial owners of the shares. Fooks, (Glasse, Q.C., and Roxburgh, with him) for the appellant. The trustee, and not the cestui qui trust, ought to be placed on the list of contributories, use of their names was a mere colourable and fraudu lent transaction, of which the real shareholder could not avail himself to get rid of his liability, Hyam's Case, 1 De G. F. & J. 75; The appellant, as a sleeping partner, was liable in respect of these shares to pay the debts of the company, and was consequently a contributory under section 200 of the Companies' Act, 1862. Fooks, in reply, contended that there was a bona fide trusteeship. KNIGHT BRUCE, L.J., said, that the appellant was substantially the owner of the shares. Though the nominees might, in one sense, be called trustees, it was not a trust of the ordinary kind; their names had been used for the mere purpose of deluding the world by representing the number of shareholders as greater than it really was. He was not prepared to say, that, if the Companies' Act, 1862, had not been passed, he should have decided otherwise; but, looking to the language of that Act and the facts of the case, he could not doubt that the of the whole 300 shares. appellant was rightly made a contributory in respect TURNER, L.J., said, that he was not prepared to give an opinion upon the construction of the 200th section of the Companies' Act, 1862; but he was clearly of opinion that there was no trust, and that the appellant, as the real owner of the shares, was rightly made a contributory in respect of them. In taking accounts under a decree, books of account 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. Baggallay, Q.C., and Rowcliffe, for the respondent (the person having the carriage of the winding up). Giles and Pulley were not bond fide trustees; the VOL. III. tion of the Judge in every case. The decree in this suit having directed an account against one of the defendants, the Chief Clerk of ViceChancellor Stuart, in taking the account, admitted F certain books of account as primâ facic evidence of the truth of the matters therein contained, although no order or direction to that effect had been made by the Court, under the 54th section of the 15 & 16 Vict. c. 86. A motion was thereupon made before the ViceChancellor on behalf of the plaintiff, that these books should be rejected, and having been refused, with costs, was renewed by way of appeal before the Lords Justices. Malins, Q.C., and G. L. Russell, for the appellant. Bacon, Q.C., and Martineau, for the respondents. solicitors at Norwich, had been sworn before a person in his own employment. They cited, Re Hogan, 3 Atk. 813; Wood v. Harpur, 3 Beav. 290; Hopkin v. Hopkin, 10 Ha. App. ii. 2nd. The discretion exercised by the Vice-Chancellor in having ordered an immediate sale was not warranted by the facts, and the defendant was entitled to the usual six months' time. Giffard, Q.C., and Kay, for the plaintiffs, argued, 1st. That the appellant's contention was untenable. The rule was confined to cases where the oath was administered by the solicitor on the record or his clerk. They were borne out in this contention by the practice at Common Law, Read v. Cooper, 5 Taunt. 89; Williams v. Hockin, 8 Taunt. 435; The motion having been opened, the Lords Justices sent for the Chief Clerk, and, having ascertained that no order had been made for the admission of the books under the 54th section, informed him that a special 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 by the defendants for an order for the admission of the books under the 54th section of the statute, and ultimately the order was made, upon the defendants consenting that the persons in whose handwriting the books were should be treated as their witnesses, and be open to cross-examination by the plaintiff, Lodge v. Prichard, 3 De G. M. & G. 906; Goodtitle v. Badtitle, 8 Term Rep. 638. 2nd. The facts had warranted the Vice-Chancellor in ordering an immediate sale of the mortgaged property. Rolt, Q. C., in reply. The above objection to the admission of the affidavit had likewise been taken on the hearing in the Court below, and had been overruled by the Vice-Chancellor, (See 2 N. R. 443). 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 would appear that the principle on which a solicitor on 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 inMortgage-Foreclosure or Sale-Immediate Sale. timate knowledge as to the evidence which would prove 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., KNIGHT BRUCE, L.J., dissen- merely in the employment of the plaintiff. There was no tiente. An affidavit is admissible in evidence, though it has been sworn before the clerk of the plaintiff in the cause, the plaintiff not being himself a solicitor on the record. Order of Vice-Chancellor, for an immediate sale, affirmed. This was a suit by a first mortgagee for foreclosure or sale, in which the Vice-Chancellor had directed an immediate sale (2 N. R. 442). From that decision Chidley, one of the defendants, now appealed as against the whole decree. Rolt, Q. C., and Swanston, however, opened the case for the appellant, and contended, 1st. There was no evidence before the Court, as the affidavit made in the cause by the plaintiff, who was a partner in the firm of Foster, Burrows & Co., ground for assuming that such a person was acquainted with the circumstances connected with the suit in consequence of such relationship. Were such a supposition to be maintained, it would be impossible to predicate to what extent the principle might not be extended. His Lordship considered, therefore, that the rule in question ought to be confined to the case of solicitors on the record and their clerks. In respect to the second question, he considered that the Vice-Chancellor had only exercised the discretion given him by the statute, and there were no circumstances now before the Court to warrant them in exercising a contrary discretion. KNIGHT BRUCE, L.J., said, that on the first question he had the misfortune to disagree with both the Vice-Chancellor and the Lord Justice Turner, as he considered that the objection against the admission of the affidavit could be sustained. But as the Lord Justice agreed with the Vice-Chancellor the objection must fail. to be incurred by reason of the issuing of the fi. fa., and all the costs, charges, and expenses, of or relating 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 executby the Vice-Chancellor. Minute-Appeal dismissed with costs. Master of the Rolls. S.} MAW v. PEARSON. 14, 17 Nov. 1863. Where a deed of arrangement with creditors contained a trust to pay the expenses attending the execution of a ertain indenture of mortgage, or in any wise relating thereto, and all costs, charges, and expenses, which the trustees might be put to in or about the execution of the trusts, or in relation thereto: Held, that the trustee was justified in defending actions against the debtor, and providing abstracts of the mortgage property. The Taxing Master disallowed a general objection to a bill of costs as not properly chargeable under a trust deed, on the ground that the words of the trust deed covered all expenses incurred by the trustee in the proper matters of the trust, and that the majority of the items of costs were incurred with the plaintiff's conseat and some admitted by the plaintiff's bill. The Master also disallowed an objection to particular iloms, as having been unnecessarily and improperly incurred, on the ground that such costs had been proved before him to have been properly incurred: Held, that the above answers were sufficient. On an objection to a solicitor's charge for journeys, his affidavit that they "were necessarily and properly taken for the benefit of the trust estates," was, in the absence of evidence to the contrary, held sufficient. On a general objection being taken to a Chief Clerk's certificate, where some only of the items were in dispute, the case was adjourned to Chambers, and the plaintiff ordered to furnish a list of the items to which he objected. This was a petition in the suit of Maw v. Pearson, reported 28 Beav. 196. The defendant Pearson had obtained a judgment against the plaintiff, and issued execution; the plaintiff then made an arrangement with Pearson to take a security on his growing crops, furniture, &c.; and the execution was withdrawn. In pursuance of that arrangement, the plaintiff, by an indenture, dated the 8th of May, 1858, assigned all his growing crops, furniture, &c., which had been seized under the execution, to Robert Sykes, his executors, &c., upon trust to sell them, and stand possessed of the purchasemoney upon trust, first to pay all costs incurred, or ing a certain indenture of mortgage, bearing even date 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 thereto; thirdly, to pay rates, servants' wages, &c. ; and fourthly, to pay the defendant Pearson a certain debt of 30007. and interest. Pearson's debt was also amply secured by the mort gage of even date, which comprised the plaintiff's freehold property. The present suit was instituted to administer the trusts of the indenture of assignment, and, on the cause coming on to be heard before the Master of the Rolls, his Honour directed an account of all moneys received by Robert Sykes, during his life, and after his death, by the defendant John Sykes, his real and Sykes claimed in his disbursements the amount personal representative. In taking the accounts, John of a bill of costs of the defendant Carnochan, a solicitor, alleged to be incurred by Robert Sykes, as trustee of the indenture, and paid by him the proper Taxing Master, who reduced the amount from 540l. to 4837. out of the trust funds: the bill was referred to The plaintiff being dissatisfied with such taxation delivered objections thereto. 1st. He objected generally to the whole bill, that it and expenses, properly chargeable against the late was not, nor was any part of it, a bill of costs, charges, Robert Sykes, under the trust deed, and that the same ought not to have been allowed to Robert Sykes as a charge against the plaintiff or his estate; and, moreover, that before the bill of costs was delivered to or paid by Robert Sykes, his authority, under the trust deed, had ceased, and the trusts thereof determined. 2nd. Assuming that some part of the bill of costs the trust deed, he objected that particular items ought was chargeable against the plaintiff or his estate under not to have been allowed, as having been unnecessarily and improperly incurred. The Taxing Master, in his answers to the plaintiff's objections, disallowed the first general objection, "because no words of a trust deed could more expressly or strongly covenant for the allowance of all the costs, charges, and expenses incurred by the trustee in the proper matters of the trust ;" and because it had been proved before him that the great majority of the items of cost were incurred with the full knowledge and consent of the plaintiff, whose estate was the subject of the trust; and further, because in his bill of complaint the plaintiff admitted that the bill of costs contained divers entries to which he did not object, and he was willing that the same, as being |