The Simlah.

THE SIMLAH.1

July 16, 1851.

7 & 8 Vict. c. 112, s. 16- Master's Wages-Settlement of Account

current.

E. T., the master, took a bill of exchange from the owner of a ship, in payment of the balance of a debtor and creditor account, which included his wages as master, as well as other disbursements on account of the ship :

Held, that he was entitled to sue for his wages under the 7 & 8 Vict. c. 112, s. 16.

Semble, the 7 & 8 Vict. c. 112, s. 16, gives the master his remedy where the owner of a majority of interests is bankrupt or insolvent.

EDWARD TAYLOR became master of the ship Simlah in December, 1845, and so continued till the 25th of July, 1849. When he became master, the ship was held in the following proportions: E. R. A., forty-eight sixty-fourths; J. H., sixteen sixty-fourths. On the 20th of July, 1848, E. R. A. acquired the sixteen sixty-fourths, and became sole owner, and so continued till the 21st of July, 1849, when he transferred eight sixty-fourths to C. F. T. E. R. A. engaged Taylor as master, and was the managing owner. On the 11th of July, 1850, he was declared a bankrupt, and on the 17th of January, 1851, an action was entered, on behalf of Taylor, for the balance of wages due to him as master, under the 7 & 8 Vict. c. 112. The ship having been in the mean time sold at the suit of other parties, and the proceeds brought into the registry, an appearance was given to the action, and an act on petition brought in on behalf of the assignees, in which it was alleged that the said Edward Taylor made three several voyages "from this country to Calcutta and elsewhere, and back to this country,” between the 18th of December, 1845, and the month of August, 1849, at wages after the rate of 10l. per month, and at the end of each of which several voyages he rendered a general debtor and creditor account to the said E. R. A., in each of such several accounts inserting on the debtor side the amount of his "portage bill," in which were the wages due to him in respect of each such separate voyage, and striking a balance at the end of what was due to him on the general account, the results being as follows: In the first of such bills, account of wages, (inserted on the debtor side,) 148l. 6s. 8d.; general balance, (on the same side,) 131l. 4s. 2d.; in the second of such bills, amount of wages, 1167. 6s. 8d.; general balance, 111. 2s. 9d.; in the third of such bills, amount of wages, 167l. 13s. 4d.; general balance, 233l. 14s. 2d. That in or previously to the month of April, 1850, the said Edward Taylor and the said E. R. A. came to a general settlement of accounts, both in respect of the said ship Simlah and of other pecuniary transactions, upon which general settlement there appeared to be due and owing from the said E. R. A. to the said Edward Taylor a certain sum, in part payment whereof, on the 25th of April, the said

1 15 Jur. 865.

The Simlah.

Edward Taylor drew two bills of exchange, payable at six months. and eight months after date respectively, on the said E. R. A., the first for the sum of 410l. 2s. 5d., and the other for the sum of 3741. 7s., and which bills of exchange were duly accepted by the said E. R. A. That the said E. R. A., on the 12th of July, 1850, was declared a bankrupt; and that in his balance sheet he entered the said Edward Taylor as a creditor for, among others, the two following sums: "25th of April. Bankrupt's acceptance, due October 28th, 1850, 410l. 2s. 5d.; ditto, ditto, for 3741. 7s., due on the 28th December, 1850;" and the latter of which bills he, the said Edward Taylor, has since proved against the estate of the said bankrupt; and that Charles Frederic Tibbs, the duly-registered owner of eight sixty-fourth shares of the said ship or vessel, is neither bankrupt nor insolvent. These averments were admitted in the answer; but it was there alleged that the bill for 4101. 2s. 5d. was drawn upon and accepted by E. R. A. at his own request, and solely for the balance due to Edward Taylor in respect of the ship Simlah, as master thereof, with interest thereon at 51. per cent. from the date thereof to the day on which the same was due.

Addams, for the assignees. The case was not within the act, which provided for the recovery of wages only; whereas here there was a regular account, of long standing, and regularly balanced, between the master and part owner, and a bill given for securing the balance; and the wages should not have been allowed to accumulate. Secondly, all the owners were not bankrupt; and this event was not provided for by the act, which consequently failed in giving the court jurisdiction in the matter.

Bayford, for the master. As to the second point, Tibbs was part owner for only four days of the whole time in which the wages were earned; if the court has any difficulty upon that part of the case, we will give up the four days. But the bankruptcy of a part owner is, in fact, provided for by the 63d section: upon the bankruptcy or insolvency of such owner, the master may sue for his wages, as a mariner might do. Then where, as in the present case, a part owner is bankrupt, the master may recover part of his wages due, in proportion to the shares in the ship held by the bankrupt; it is a mere matter of calculation, and the rights of third persons are not interfered with, particularly where, as in this instance, the ship has been sold, and the proceeds are here. As to the first point, there must, in all cases of a master, be a running account with the owners. The act would be a nullity if it were held not to operate wherever there was an account between the owner and his agent, the master; nor is the taking a bill a waiver of his claim. This case is distinguishable from that of the The William Money, 2 Hagg. 136, where the seaman chose the bill; the master had no choice in the present instance.

DR. LUSHINGTON. This is a proceeding by the master for the recovery of wages earned between December, 1845, and July, 1849, the

The Simlah.

owner of fifty-six sixty-fourths being a bankrupt, having been sole owner till July, 1849, when he assigned eight sixty-fourths to a person named Tibbs, who is not a bankrupt. It is clear that the right given by the act of Parliament to the master, against the ship, must be to the prejudice of other creditors, and, if the bankrupt had continued the sole owner, no doubt could have been entertained as to the jurisdiction of this court. But the difficulty is, that there is another part owner. If I refuse to entertain the claim of the master upon that ground, I must refuse it in every case where the owner of even one sixty-fourth is not bankrupt or insolvent. I think, therefore, that I should be inclined to uphold the master's right wherever I found the owner or owners of a majority of interests bankrupt. But I am not called upon now to decide that point, for Tibbs was not an owner during any part of the time when the wages were earned, and I doubt if any action could be maintained against him in respect of the wages. This objection, consequently, does not arise. Then it is said that the master ought to be barred by reason of there having been a settlement, and bills of exchange given in fulfilment of that settlement. I think that this objection is premature. With respect to the account between the master and owner, I am well aware that difficulties exist; but I must look to the act, which says that all the rights, privileges, and liens which belonged to a seaman shall belong to the master. In the seaman's case there were generally deductions for slops, and other small matters, and these were not considered to deprive him of his right to sue in this court; and why should the fact of an account current, when it is obvious there can hardly be a case of master's wages without some account, be held to bar the master? How can I draw a line between one account and another? Reluctant as I am to embarrass myself with such matters, I must submit to what is imposed upon me by the act. I shall refer the accounts to the registrar, to ascertain the amount of wages due, and to report on such special circumstances as he may think necessary.

Prerogative Court.

In the Goods of HAMILTON.1
February 3, 1851.

Practice-Notice to Queen's Proctor.

Where the crown has an interest, and the queen's proctor, on notice being given to him, neither consents to nor opposes the grant prayed, he must be served with a decree.

THE deceased gave and bequeathed all his property of every kind in these words: "That my said wife, her heirs, and assigns shall receive all the benefit arising therefrom, for the purposes of her own maintenance, and for the properly bringing up of and educating all the before-mentioned children until they shall have respectively attained the age of twenty-one years. So long as my wife shall remain unmarried, and not be living in adultery, the whole of my property shall be hers, for the purposes aforesaid; but should she get married, or be living in adultery, then my executors shall be entitled and empowered to carry out my wishes and desires as to the education and bringing up of the before-named children; and all my property shall be divided among them, share and share alike, by the said executors, their executors and administrators or assigns, to the best of their judgment and ability, when my youngest child shall attain age of twenty-one years. This proviso shall only be acted upon should my wife get married, or be living in adultery, otherwise the property to be hers for her natural life. I also appoint as my executors my

the

1 15 Jur. 566.

Knapp & others v. The Parishioners of St. Mary, Willesden.

before-named son, H. W. H. Spelling, or, in case of my decease before he attains his majority, his next friend, together with C. J. Fox." The deceased had five children by his wife, three born before the marriage, and two afterwards, all of whom he expressly described by name and date of birth in his will, and which contained this clause: "Which said three children, though illegitimate, I particularly wish to participate equally with my other children born in lawful wedlock." H. W. H. Spelling was the eldest of the five children, and a minor, and C. J. Fox, the other executor, renounced probate. H. W. H. Spelling elected his mother, the widow of the testator, to be his guardian for suits, and especially to take upon herself letters of administration with the will annexed of the goods, &c., of the deceased, which guardianship the mother accepted. Notice of these facts was given in writing to the queen's proctor.1

Deane moved the court to decree letters of administration with the will annexed of the goods of the testator to the said Mary Hamil ton, widow, limited until the said minor shall attain his age of twenty-one years, (or a general grant,) on her giving bond, with justification of sureties, and exhibiting an inventory.

SIR H. F. FUST. I shall not make any decree unless the crown consents; you must take out a citation against the queen's proctor. On the 10th of May, the decree having been served on the queen's proctor, who gave no appearance, the administration was decreed to the widow, for the use and benefit of the minor, and until he should attain the age of twenty-one years.

Consistory Court.

KNAPP & others v. THE PARISHIONERS OF ST. MARY, WILLESDEN. April 26, 1851.

Pew-Prescriptive Right- Pleading.

Where a pew is held by faculty or prescription, the ordinary cannot interfere.

Where parishioners are cited to show cause against a faculty, the proper mode of proceeding in their behalf is by act on petition.

Where a prescriptive right is relied on, the word "prescription" should be used in the pleadings.

1 Quare, as to the interest of the crown. It appears that the nomination of guardians to illegitimate children, though invalid, is not without use in the Court of Chancery, as that court appoints to the guardianship persons nominated by a putative father, without any reference to the master. Ward v. St. Paul, 2 Bro. C. C. 583. Peckham v. Peckham, 2 Cox, 46. Chatteris v. Chatteris, 1 J. & W. 106.

2 15 Jur. 473.