Ex. CH.]

In the Goods of CHARLES LORIMER.

and Rex v. Richardson, 9 East, 469, determine that the statute relates alone to corporate officers. Then it is said there can be no corporate office where there is no corporation, but the 5th section enacts that judgment of ouster shall be given against persons found guilty of usurping such offices, that the relator shall recover costs; that section applies to corporate offices, and is not confined to corporate places. [BRAMWELL, B.Sect. 4 says, "In case any person or persons shall usurp, intrude into, or unlawfully hold and execute.' Does not that point to a case where there is no such office?] There is nothing here to show that Bala is not a corporate place.

V. Williams in reply.-How is the offence charged here shown? [ERLE, J.—If judgment be given for the deft., the 5th section of the statute says he shall have his costs against the relator. Why should not the relator when he succeeds have his costs against the deft.? POLLOCK, C.B.-This is one of the difficulties that sometimes arise from the weakness of language for example, you may say that a bad shilling is no shilling at all; so here, there being no such office there can be no officer. But the Act does not say in such a case the relator is to be deprived of his costs; the real question is, whether the defts. really acted as mayor and bailiffs.] In R. v. Richardson, the office alleged to have been usurped was that of a portreve. The word "places" used in the statute applies to such places as before enumerated: (Rex v. Williams, 1 Burr. 402, 407.) [BRAMWELL, B.-If you had succeeded would you not have had judgment to be mayor?] Yes. [BRAMWELL, B.—And to have your costs?] Not if the case is not within the statute of Anne, and not if it did not appear upon the record that Bala was a borough and the office a corporate office.

[PECE

COURT OF PROBATE.
Reported by Dr. SWABEY, of Doctors'-commons.
Tuesday, May 20.

In the Goods of CHARLES LORIMER, deceased
(on motion).

Executors, acting and non-acting-Executor of acting
executor-20 & 21 Vict. c. 77, s. 79-2142
Vict. c. 95, s. 16.

On the death of an executor, without having either renounced or taken probate, the executor of the m vivor of two acting executors becomes the perund representative of the original deceased.

In this case the deceased died in May 1844, leaving a will, in which he appointed Thomas Oliverson, Janes A. Forshaw and Thomas Morris trustees and executin and his wife Hannah Lorimer residuary legatee during widowhood, with a power of appointment by will se the whole estate and effects in the event of her marrying again. Probate was granted by the Censistory Court of Chester in June 1844 to Forshaw and Morris, power being reserved to Oliverson. Forstay and Morris acted under the will and died, leaving part of the estate unadministered. Morris, the surviver d the two, died in July 1860, leaving a will, where be appointed certain executors, one of whom, Georg Marsden, proved the will. Oliverson died in 1861, having in his lifetime neither renounced probate zer obtained any grant to be made to him.

Hannah Lorimer died a widow, leaving a wand codicil, whereof she appointed Bailey and Chairers her executors and residuary legatees in trust, who took probate in 1859. In the will and codicil, Haaİ Lorimer directed the trustees or trustee for the time being of the will of Charles Lorimer to pay or transfer all the property over which she had a power of appostment by virtue of the will of Charles Lorimer, to Bailey and Chalmers, her executors.

The unadministered effects of Charles Lorimer c sisted of a sum of 5405l., standing to the credit of his executors Forshaw and Morris, in the Bank of Liver pool. The bank declined to pay the money unti a grant of letters of adininistration de bonis non shoul be made, and Marsden, the executor of the surviving acting executor of Charles Lorimer, would take no steps to compel the bank to pay the money to him, being advised that he was not the personal representative of the said Charles Lorimer.

ERLE, C. J.-I was at first very much with Mr. Williams, and felt some difficulty in distinguishing this from some of the cases cited. I think it must be taken that the Act applies to offices and officers in corporate towns, and I give my judgment on the ground that there is an allegation upon this record that the deft. Price did use and exercise the office of mayor, and with Richards and Jones the powers and privileges of a body corporate by the name and description of the mayor and bailiffs of the borough of Bala, and that Price hath claimed to be mayor, and, with Richards and Jones, a body corporate, &c.; therefore as against this deft. he cannot claim exemption from costs: he might have set up that Bala was a corporation, and The 20 & 21 Vict. c. 77, s. 79, enacts, that that he was entitled to act as mayor. The statute is," Where any person, after the commencement of this I think, more wide than the cases seem to settle, though none of us have any thought of running counter

to them.

Act, renounces probate of the will of which he is pointed executor or one of the executors, the rights of such person in respect of the executorship shall why cease, and the representation to the testator and the administration of his effects shall and may, withst any further renunciation, go, devolve and be committed in like manner as if such person had not been appointed executor."

POLLOCK, C.B.-I am of the same opinion. I think some of the cases say more than that as to offices not corporate the statute does not apply, but I have a very strong opinion that it a man claim a corporate office, whether there be in fact such an office, or he only pretends there is such a one, the court has The 21 & 22 Vict. c. 95, s. 16, enacts that, power to give costs. There would be great hardship if" Whenever an executor appointed in a will survives people could assert rights such as here to levy money, and none of the inhabitants could act as relator without being personally liable for costs, and I think in such a case the statute meant to give costs against such a person.

WILLIAMS, J.-I am of the same opinion. The deft. would have had costs had he succeeded. If he had pleaded double-first, that he was not mayor, and second, that Bala was not a corporation-he would have been within the statute for that purpose, and why not for this? I think the case is within the statute for that as well as for other purposes.

BRAMWELL, B.-I am of the same opinion. KEATING, J.-I am of the same opinion. I think this case is distinguishable from all those cited. Judgment affirmed.

the testator, but dies without having taken probate, and whenever an executor named in a will is cited to take probate and does not appear to such citation, the right of such person in respect of the executo ship saad wholly cease, and the representation to the testator and the administration of his effects shall and may without any further renunciation, go, devolve and be committed in like manner as if such person had not been appointed executor."

Dr. Swabey now moved the court to grant letters of administration with the will annexed of the administered estate of Charles Lorimer to Bailey and Chalmers, the executors of Hannah Lorimer. The court will probably reject the motion, as the case apparently cannot be distinguished from that of The Goods of Robert Noddings, 3 L. T. Rep. N. S. 178;

Σ

ADM.]

THE STETTIN.

[ADM.

s.c. 2 Swab. & Trist. 15, where a surviving executor, | lawfully, and without being subject to any of the to whom power had been reserved, having been cited penalties by this Act imposed, conduct or pilot his and not appearing, the court held that the executor of own ship or vessel when and so long as he shall an acting executor was the personal representative of conduct the same, without the aid or assistance of the original testator. The present case falls under any unlicensed pilot or other person or persons than another clause of the same 16th section, but the the ordinary crew of the said ship or vessel." principle must be the same. There is an inaccuracy in Merchant Shipping Act 1854, s. 353.-"Subject the report of The Goods of Robert Noddings, where the court is reported to have said: "The executor of the acting executor seems to be the proper representative of the original testator, and the grant will be made accordingly." The effect of that case being that the executor of the acting executor is the representative of the original testator, no grant de bonis non was necessary, and none in fact was made. This inaccuracy may have had some share in the view taken by the advisers of the Liverpool Bank in the present

case.

Sir C. CRESSWELL.-I see no reason to doubt that, under the sections of the Probate Acts referred to, the executor of the surviving acting executor becomes, upon the death of the non-acting executor, the personal representative of the original testator. I must reject this motion.

Robert Marshall, solicitor.

ADMIRALTY COURT.

the employment of pilots shall continue to be compulsory in all districts in which the same was by law compulsory immediately before the time when this Act comes into operation, and all exemptions from compulsory pilotage then existing within such districts shall also continue in force."

....

...

Merchant Shipping Act 1854, s. 370.-" The Trinity-house shall continue to license pilots for the purpose of conducting ships within the limits following, or any portion of such limits (that is to say): 1. The London District, comprising the waters of the Thames and Medway as high as Londonbridge and Rochester-bridge respectively, and also the seas and channels leading thereto or therefrom as far as Orfordness to the north, and Dungeness to the south, so nevertheless that no pilot shall be hereafter licensed to conduct ships both above and below Gravesend."

Merchant Shipping Act 1854, s. 376.-"Subject. to any alteration to be made by the Trinity-house and to exemptions hereinafter contained, the pilotage dis-

Reported by ROBERT A. PRITCHARD, D.C.L., Barrister-at-Law.tricts of the Trinity-house, within which the employ

Tuesday, June 24.

(Before the Right Hon. Dr. LuSHINGTON.) THE STETTIN.

Collision-Compulsory pilotage-Vessel within the port to which she belongs.

By the 353rd section of the Merchant Shipping Act 1854, all exemptions from compulsory pilotage which existed at the time when that Act came into operation continue in force.

By the 6 Geo. 4, c. 125, s. 59, which was in force at the time when the Merchant Shipping Act came into operation, vessels within the limits of the port to which they belonged were exempt from compulsory pilotage.

A steam-vessel belonging to the port of London, on a voyage from Bordeaux to London, whilst off the Regent's-canal in the river Thames, came into collision with a brig at anchor. The collision was occasioned solely by the fault of a pilot on board

the steamer:

Held, that the collision having taken place when the steamer was within the limits of the port to which she belonged, her owners were at such time not compelled to take a pilot, and were therefore answerable for his misconduct.

ment of pilots is compulsory, are the London district and the Trinity-house outport districts, as hereinbefore defined; and the master of every ship navigating within any part of such district or districts who, after a qualified pilot has offered to take charge of such ship, or has made a signal for that purpose, either himself pilots such ship without possessing a certificate enabling him so to do, or employs or continues to employ an unqualified person to pilot her, shall, for every such offence, in addition to the penalty hereinbefore specified, if the Trinity-house certify in writing under their common seal that the prosecutor is to be at liberty to proceed for the recovery of such additional penalty, incur an additional penalty not exceeding 51. for every fifty tons burden of such ship."

Merchant Shipping Act 1854,s. 379.-"The following ships when not carrying passengers shall be exempted from compulsory pilotage in the London district and in the Trinity-house outport districts (that is to say) (5.) Ships navigating within the limits of the port to which they belong." The Admiralty Advocate and V. Lushington appeared for the Thornley;

Twiss, Q. C. and E. C. Clarkson for the Stettin. Dr. LUSHINGTON.-The steamship Stettin, belonging to the port of London, came into collision with the Semble, that but for 6 Geo. 4, c. 125, s. 59, the Thornley, a brig lying at anchor off the Regent'staking of the pilot would, notwithstanding the Mer- canal stairs, on the 4th Feb. The Trinity Masters chant Shipping Act 1854, s. 379, have been, under were of opinion, and the court concurred with them, the circumstances, compulsory upon the owners. that the blame of the collision rested entirely with the This was an action brought by the brig Thornley, pilot on board the Stettin. The state of facts upon from Sunderland (coal laden) for London, against the which I mean to found the question of law are as folscrew steamship Stettin, while on her way from Bor- lows:-" -The Stettin belonged to the port of London; deaux, with a general cargo, for London and Hull, to the place of collision was within the port and the disrecover for a total loss, occasioned by reason of a colli-trict of the Trinity-house; and the pilot was duly sion between the vessels while the brig was at anchor in the river Thames off the Regent's-canal, on the 4th Feb. last.

The following are the sections of the statutes referred to in the judgment:—

6 Geo. 4, c. 125, s. 59.-"The master . . . of any ship or vessel whatever, whilst the same is within the limits of the port or place to which she belongs, the same not being a port or place in relation to which particular provision hath heretofore been made by any Act or Acts of Parliament, or by any charter or charters for the appointment of pilots, shall and may

The

licensed. If there were any serious doubts on these
facts I would allow them to be proved by further
evidence, but I apprehend that there is not.
case came on without any intimation of the points
to be raised. There is, however, enough for me to
proceed upon. First, I apprehend it to be clear-
beyond doubt that if the taking of a pilot be com-
pulsory, and the blame of a collision rests solely with
him, the owners of the ship doing the damage are not
responsible? Then the main question is-was the
taking the pilot in this case compulsory? First, it
must be proved that the taking of a pilot in the locus

ADM.]

DIGEST OF MARITIME LAW CASES.

[ADM

|" is," is descriptive of place only, and different from
" navigating." I feel myself compelled, by the di
ference of expression, to put a different construction
upon this section, unless some subsequent words pre-
sently to be noticed form a distinct exception. I'm
well aware that to put one construction upon the 59th
section of the Pilot Act and another upon the 3791
section of the Merchant Shipping Act, tends to create
some confusion; but I cannot help myself, for the
Legislature has used different expressions, as, I think,
conveying different meanings. Then follow the works
which particular provision has heretofore been made by
Act of Parliament." Now, I am aware of no such An
of Parliament, and no such Act has been mentioned, w
I must conclude there is none. The result is, that I
must hold that this steamer was exempt from con-
pulsory pilotage, and consequently is liable for the
damage. The truth is, that the law is in great ces-
fusion.

DIGEST OF MARITIME LAW CASES

(EXCEPTING SALVAGE AWARDS) FROM 1837 To 1860.

(Continued from p. 581.)

[N.B.-The LAW TIMES REPORTS, N. S., will give all the Mrizin Law Cases decided from Michaelmas Term 1559, This Digest mi contain all (except the Salvage Awards) decided from 1837 to Sar. 1859. A Digest of the Salvage Cases during the same period à appearing in the LAW TIMES.]

EXTRA FREIGHT.

in quo was generally compulsory. Secondly, if there be an exception, upon what grounded. It is said such exceptions are to be found in the Merchant Shipping Act, and in the old Pilot Act of Geo. 4. The collision took place within the Trinity-house London district, which is defined by the 370th section of the Merchant Shipping Act; and by the 376th section, the taking of pilots in the London Trinity-house district is compulsory. By the 379th section there are exceptions, and it is contended that this case falls within one exception, the 5th-"Ships navigating within the limits of the port to which they belong." This ship" the same not being a port or place in relates to belonged to the port of London, and the collision took place within that port. The question is, was she navigating within? The Stettin had left Bordeaux, and was bound for London and Hull. This exemption cannot have been purely arbitrary, and must be founded upon some reason or other. Is that reason the simple fact of belonging to the port, as affording such a knowledge of the navigation of the port, that the employment of a pilot might be safely dispensed with? I admit that, primâ facie, the belonging to the port would give some colour to the presumption of knowledge of navigation; but when it is borne in mind that ships belonging to the port of London are engaged in every description of voyage, that very many of them do not for years enter the port, it is contrary to all probability that the masters and crews should possess adequate knowledge of the navigation of the port. Under such circumstances, the fact of being registered in London becomes no adequate reason for the exemption. Then, consider the other construction, that navigating within means navigation confined to the limits. It is evident I think, that this construction is much more consonant, with the reason of the case, for almost of necessity those so engaged in navigation must acquire local experience. I also think this interpretation accords best with the words themselves. Though I do not deny that the word "navigation" alone is a doubtful expression, yet coupled with the word "within" it appears to me to negative voyages beyond the limits, and to be confined to those within the limits. As this ship came from Bordeaux to London, was further bound to Hull, if the case rested solely on the Merchant Shipping Act, I should hold, though with much doubt, that the taking the pilot was compulsory, as the vessel came from a foreign port. But it has been urged that an exemption of this vessel from compulsory pilotage is to be found in the General Pilot Act of Geo. 4; and that all such exemptions are continued by the Merchant Shipping Act. Certainly, if, referring in both Acts to ships similarly circumstanced, there is an exception in the General Pilot Act, and the contrary in the Merchant Shipping Act, the law on this question would be in great confusion, for I must assume, after the case of Reg v. Staunton, 8 E. & B. 445, and the confirmation of the judgment in the Earl of Auckland, 1 Lush. 164, by the Judicial Committee, that all exemptions in the General Pilot Act are continued by the Merchant Shipping Act, sect. 353. The only question, therefore, that I am at liberty to con- In this case of the Bombay the iron was valued in sider is, whether this ship was exempted by the the policy of insurance at a certain sum, and the pr General Pilot Act, and that depends on the construc-paid freight was not specified as being included there, tion to be given to the 59th section. The words appli- therefore have been contended, whether successfully although the whole freight was prepaid. It might cable to the case are these: "The master of any not, that the underwriters had nothing whatever to de other ship or vessel whatever, whilst the same is with the extra freight, at least if the new freight within the limits of the port or place to which she did not exceed the freight originally contracted for. This argument, however, was not brought forward. Further, the belongs, the same not being a port or place in relation judges had not any evidence submitted to them concerning to which particular provision hath heretofore been the invariable usage of policies on goods "free from made by any Act of Parliament or charter, may law- average," paying extra or surplus freight in case of ship wreck; in other words, the excess of freight incurred fat fully navigate the same, provided he do not employ an sending on the goods to their destination, beyond the freight unlicensed pilot." The words used in this section of originally contracted for. Neither was evidence brought the Pilot Act are very different from those in the forward of the equally unvarying use of the expression 379th section of the Merchant Shipping Act. The damage, which indeed is acknowledged by Mr. Arnead and particular average on goods," as being confined to ses word "whatever" includes all shipping. The word by Mr. Benecke, in passages which were not quoted before

1111 a. Iron rails were insured for and valued at 451, "free from particular average unless the ship be strand, sunk, or burnt." The freight was prepaid and included in the value, though not specified. The ship was so much damaged as to constitute a constructive total loss, but she was not stranded, sunk, or burnt. The iron rails were transhipped into other vessels and sent on to their destination, at an expense of 8504. Held, that this was an extra expense incurred by the shippers of the goods, in consequence of me sea risk, which had frustrated the voyage of the Bombay;" that it could be recoverable only as particular average on the goods, and the underwriters were therefore not liable for it way Company v. Saunders, Q. B., April 23 and 24.1 on the policy: (The Bombay; Great Indian Peninsular E 4 L. T. Rep. N.S. 246; Shipping Gazette, April 29; affirmed by the Ex. Ch., Feb. 3 and 8, 1862; 6 L. T. Rep. N.S. 297) ment of the Court of Q. B. in the above case of The Great Ins [Note by the Compiler.-The Ex. Ch., in affirming the judg Peninsular Railway Company v. Saunders, has determined that extra freight on goods, incurred in consequence of the wreck of the vessel in which they were originally shipped, ment has given rise, and which it will further occasion, ca is particular average. The perplexity to which this j be thoroughly understood only by those engaged in er oriversant with the business of marine insurance.

Let us notice only one effect of the decision, in regard to extra freight. Where iron insured free from particu average, and valued at 2000, specifically including the freight wholly prepaid, is in consequence of the wreck of the vessel transhipped by the proprietor of the ina a freight of 500, and the iron is subsequently damaged by sea water to the extent of 75 per cent., scour ing to the practice and understanding of all concerned, the underwriters should pay the extra freight, 5001, by which a total loss of the voyage is prevented, but not the cam for sea damage. Giving effect, however, to this decision, the insurers will in such a case be liable both for the ext's freight of 500l. as particular average, and also for the damage by sea water amounting to 15004, together 2000, that is, for a total loss on the policy.

ADM.] Ex parte THE ASSIGNEES Of Downton & he court. Even the authority of Mr. Stevens, so often cited in such practical points, was not adverted to, although in is essay on Average, p. 237, it is mentioned that in Hedurg v. Pearson, being foreman of the jury, he asked the udge (Sir Vicary Gibbs) "whether free of particular verage did not mean free from the effects of sea damage?" and the judge answered "Certainly." Ever since that time uch has been the meaning always attached in practice to he term "particular average," and no charges at an internediate port have ever been excepted from a policy "free rom particular average," but those which directly affect he value of the goods, incurred for the purpose of recondiioning them, of removing or lessening the effects of sea lamage. It is respectfully submitted that the judgment ought to be received as determining the case before the court, but not as settling the general question.

In the course of the argument before the Ex. Ch., Feb. 3 and 8, 1862, 6 L. T. Rep. Ñ. S. 297, it was supposed by two of the judges, and not controverted by counsel, that the plaintiff contended that the assured on goods free from particular average could recover money expended in drying| the goods, but not any depreciation by sea damage. But Expenses of drying or reconditioning goods are never in practice recovered on such a policy; they virtually form a part of the sea damage. Erle, C.J. in delivering judgment said, that he should construe the policy with reference to the universal usage adopted. And whatever may be said by writers on maritime law not practically conversant with the business, the universal usage of so confining the term "particular average" to sea damage admits of no dispute in point of fact. Pollock, C.B. said it would be unjust not to charge the underwriters with extra freight, if it avoided a constructive total loss, but that the difficulty arose from the word "average."

If proof had been given of the true meaning of "particular average," it seems evident that the judgment of the court would have been different; at least that the underwriters would have been held liable for the excess of 2004 beyond the original prepaid freight.]

FENDERS.

1112. Owner of a ship liable for damage done to another vessel from want of fenders: (Clarkson v. Mordey, Sunderland C. C., Shipping Gazette, May 25, 1857.)

FIRE.

1113. Shipowners held liable as common carriers for the value of certain india rubber goods burnt by a fire on board a ship at New York. The verdict covered the value which the goods would have had in England: (American case, Lakemann, &c. v. Grinnell, &c., New York Superior Court, Shipping Gazette, May 2, 1851.)

1114. Where a vessel on fire put into a port and employed a steam-tug to convey a fire-engine to her, and then to tow her from the offing into the harbour, 20%. considered ample salvage: (The Anne Logan, A. C., July 11, 1854, Shipping

Gazette.)

SATCHWELL, re DoWNTON & SATCHWELL. [BANK. the duty of the latter to keep clear of fishing vessels: (The Columbus, A. C., July 22, 1848, Shipping Gazette.)

1123. Fishing vessels laying to the nets same as ships at anchor in cases of collision: (The Good Samaritan v. The | 7wo Sisters, A. C., Nov. 19, 1852, Shipping Gazette. See also 1125.) 1124. Claims for loss in going to render salvage assistance: (The Nicolai Henrich, A. C., March 22, 1853; The Hedwig, A. C., April 29, 1853; 1 E. & A. R. 19; The Aegir, A. C., July 19, 1853, Shipping Gazette.)

1125. A fishing vessel lying on her own fishing ground, with her trawl down, is similar in certain respects to a vessel at anchor. Custom of fishing vessels so situated to show a light in case of need: (The Good Intent v. The Napoleon Third, A. C., April 25, 1856, Shipping Gazette. See 1123.) 1126. Held that fishing smacks coming up the Mersey must exhibit a light in a proper position, permanently fixed to some portion of the rigging; and steam-tugs should adopt the same precaution: (The Prince of Wales. and The Samson; Wright v. Dantic, Liverpool C. C. Dec. 16, 1856, Shipping Gazette.) (To be continued.)

COURT OF BANKRUPTCY. Reported by A. A. DORIA and D. C. MACRAE, Esqrs., Barristers-at-Law.

Tuesday, May 26.

(Before Mr. Commissioner HOLROYD.)

Ex parte THE ASSIGNEES OF DOWNTON AND SATCHWELL, re DOWNTON AND SATCHWELL. Dealings between firm and separate trade of one of partners-Proof in favour of joint estate against separate estate of such partner.

Proof by the assignees in favour of the joint estate of a bankrupt firm against the separate estate of one of the partners in respect of goods supplied by the firm in the ordinary course of business to his separate trade of the same character as that of the firm, but wholly unconnected therewith, the debt being in respect of dealings as between trade and trade, and not merely between the firm and one of its partners.

Proof.-Abraham Downton for some years prior to the 8th July 1861 carried on business as a retail cheesemonger and provision dealer at King's-cross, having similar shops elsewhere, and also supplying like 1115. Shipowner held liable for loss of cotton by Are on articles to shops of a similar character. In July 1861 board a lighter, while employed by him in conveying the he entered into partnership with Satchwell, as wholecotton to his ship, and not exempt from liability under 26 sale provision merchants, carrying on business at NewGeo. 3, c. 86, s 2: (Morewood v. Pollock, Q. B., April 23, 1853, 1 C. L. R. 78; 1 E. & B. 743; Shee's Tenterden, 292; inn, in the Old Bailey, London. During the existence construction of 6th section of Admiralty Court Act 1861, of the partnership goods to a large amount were supjurisdiction in questions of the above description; The Iron- plied by the partnership firm to Downton's shops, and sides, A. C., Mitchell's Maritime Reg. 8th March 1862.) 1116. Loss of goods destroyed by fire in the Liverpool those goods were debited in the partnership books Docks not claimable from underwriters according to the against Downton as in the case of an ordinary custo"Lloyd Francais" rules: (Lopez and Guenet v. The Lloyd mer, and he was credited from time to time with any Francais, Paris Tribunal of Commerce, Nov. 1, 1856, Ship-goods which were returned, and also with payments

ping Gazette.)

FIREMEN AND STOKERS

1117. On board of a steamer considered as artificers or labourers in the employment of the engineer, and not as mariners under the Merchant Shipping Act: (Wilson, &c. v. Zulueta, Q. B., Nov. 26, 1849; 14 Q. B. 405; 14 Jur. 366; 19 L. J. 49, Q. B.; Harrison's Digest, 3157.)

FISHING VESSELS.

1118. Claim sustained for damage to smack by collision and loss of fish caused thereby (The Wanderer v. The Koningsberg, A. C., Dec. 3, 1839, Shipping Gazette.)

1119. Fishing vessels rendering salvage assistance must be rewarded by owners of vessel to which aid is given, for loss proved to have been sustained from not prosecuting their fishing voyage: (The Catherina Anna Helena, A. C., May 1, 1839; 5 Monthly Law Mag., Notes of Cases, 43; Pritchard's Digest, 390; The Frederick, A. C., Dec. 17, 1844; The Charles Williams, A. C., April 24, 1846, Shipping Gazette.) 1120. Claims sustained for loss of fish in rendering salvage service: (The Earl Grey, A. C., April 25, 1842; The William, A. C., June 18, 1849, Shipping Gazette.)

1121. Persons engaged in fishing vessels, although paid by weekly wages, held entitled, notwithstanding an alleged contrary custom at Hull, to participate in salvage reward. Case of the Harriet distinguishable from this: (The John, A. C., Jan. 28, 1846, Shipping Gazette.) 1122. Fishing boats or smacks ought not to be disturbed at their vocation and made to abandon their lines to avoid vessels going up or down Channel with a fair wind. It is

that were made in respect of those goods. The goods
account showed a balance due to the firm from
Downton of 87721. 178. 10d. There was also a cash
account between the firm and Downton, which resulted
in a balance of 29861. 8s. 8d. due to Downton, thus
leaving a general balance to his debit of 57867. 9s. 2d.
chased, without the knowledge or
In addition to these accounts Downton had pur-
consent of his
copartner, as was alleged, goods to the amount of
12981. 9s. 4d. for his own purposes, and for which he
gave the acceptances of the firm. No entry was made
in the partnership books of these purchases.

The partnership was dissolved by the adjudication of bankruptcy against the firm, which occurred on the 6th Jan. 1862.

The assets under Downton's separate estate being to prove against Downton's separate estate in comconsiderable, the assignees of the joint estate claimed petition, and to take dividends rateably with his separate creditors. The separate creditors, on the other hand, insisted that before the joint creditors could claim any benefit as against the separate estate, the latter were entitled to be paid in full, so that the

Re LOE-Ex parte Cox, re EATON AND EATON.