V.C. W.] Re PHOENIX LIFE ASSURANCE COMPANY. Held also, that the parties who had entered into policies with the company in the marine insurance branch could recover the premiums paid by them in respect of such policies. [V.C. W. and the shareholders were affected with knowledge that this was so. The supplemental deed relied on had not been executed by more than one-half of the shareholders, and was wholly invalid, as not having This was a claim made by Messrs. Burgess and been executed by the whole number. As to that part Stock to be admitted as creditors of the company, or- of the claim which represented the amount of the dered to be wound-up, for a sum of 46297. and up-judgments recovered against the company, although wards and interest. This amount consisted of amounts valid on the face of it, the court would not allow it due to them upon marine insurance policies effected without further evidence of their validity. with the company,-upon bills of exchange and judgments recovered,-and for a return of premiums paid upon such policies of insurance. The Phoenix Life Assurance Company was constituted by a deed of settlement dated the 5th May 1848, and the object of the company was thereby declared to be the "granting assurances upon lives, endowments and annuities, lending money and receiving deposits, and granting debentures to depositors." At an extraordinary general meeting of the share- | holders held on the 11th May 1857, it was resolved, amongst other things, "that the business of the company should be extended to and include the granting assurances against death or accident by sea or land, &c., and against loss or damage to property of any kind, by any cause, and also that the capital should be increased." These resolutions were confirmed at a general meeting held on the 27th May 1857, and convened by a circular stating the resolutions which had been passed for extending the business, increasing the capital, enlarging the powers of the company, and repealing and altering some of the provisions of the deed of settlement. The resolutions thus confirmed were registered on the 16th April 1858, and in the return to the Joint-Stock Companies Registry Office, dated the 23rd Feb. 1858, of the business of the company, assurances against loss by sea, &c., were included. A meeting of the directors was held on the 1st March 1858, adopting certain arrangements for conducting the marine business; and policies were thereupon issued by the directors in the name of the company. Amongst these policies were those issued to Messrs. Burgess and Stock. In May 1858 a circular was issued to shareholders announcing the establishment of a branch of general marine insurance. Other reports alluding to the extension of business were issued, and in one instance accompanied by a dividend warrant. In March 1859 a supplemental deed was executed by the holders of nearly half the shares in the company. This deed sanctioned and confirmed the extension of the business of the company to marine insurance. The company was ordered to be wound-up in April 1860, and the case now came before the court upon claims by Messrs. Burgess and Stock against the company under the winding-up, as before stated. Kay, for the creditors' representative, was not allowed to he heard, as he was only trustee for such creditors, and they were well represented by the official assignee. The principal cases cited were:-The Athenæum Company v. The Prince of Wales Company, 1 John. 80; The Magdalena Steam Navigation Company, 1 John. 690; s. c. 3 L. T. Rep. N. S. 147; s. c. or appeal, 29 L. J. 667; Ernest v. Nicholls, 6 H. L. Ca. 401; Balfour v. Ernest, 5 C. B., N. S., 601 Re German Mining Company's Cuse, 4 De G. M. & G. 19; Royal British Bank v. Turquand, 5 Ell. & B. 248; affirmed on appeal, 6 Ell. & B. 327. The VICE-CHANCELLOR said he had no doubt whatever upon the principal question. It was quite clear, and not now to be treated as an arguable point, that a company established for life assurance, and having no power to extend its operations to marine insurance, could not effect marine insurances and bind the other shareholders-not on the ground of their having executed any deed by which the purposes of the company were changed, but on the grounds of acquiescence such as was here alleged. It had been argued that this being a corporate body there was nothing illegal, if by the unanimous desire of all its proprietors, that the company should change the purpose for which it was incorporated. Of course it had power to do so by a supplemental deed, which might have been executed by all, but which in this case was only executed by half, or some such number, of the proprietors. Looking to the purpose and to the whole scope of the Joint-Stock Companies Act, there could be no doubt that the assent here averred would not be sufficient, in any way, to bind the shareholders of the company to an entirely different course of dealing. There had been a course of decisions which showed that you cannot bind a single dissentient shareholder to any purpose not the original purpose of the company, and that if there was any single dissentient shareholder, the official manager was entitled to say that no such claim could be supported against the company. The Joint-Stock Companies Act required that the title of the company, its purpose and object, and a number of matters, should be defined. The very object of defining the purpose was not only for the benefit of those who deal with the company, and had public notice of what was proposed to be done, but also for the benefit of all the shareholders, that they might know what engagements they had entered into, and those engagements could be changed by nothing less formal than that instrument by which they entered into it. It had been sugGiffard, Q. C. and J. A. Russell (common law bar) gested that it might be done by the assent of alk for the claimants.-They contended that the company, the shareholders assembled in a room, and given, howcompleted by all the acts prescribed by the Joint-ever informally. But this case did not go so far as Stock Companies Acts, had the power of extending that. There was simply the facts of reports made their business to marine insurance, although such from time to time by the directors, mentioning the fact object was not expressed by their deed of settlement; that they had full power to alter the object so expressed and declared; that the shareholders had at all events acquiesced in this course of proceeding, and the same was confirmed by the supplemental deed of March 1859. They had also received a dividend upon the profits made by this new course of business, and so were bound by it. The general question argued was, whether or not a joint-stock company established as this was, as a life insurance company, could afterwards extend its business to a different object, viz. to undertake marine insurance business. that marine insurances have been entered into. In one case the report was accompanied by a dividend, and it was argued that every shareholder (assuming that they had all received this report) was thereupon bound to a marine insurance or anything else, and that because he had not come forward to protest against the illegal transaction announced in the report, he was therefore bound to enter into others. would be setting aside the whole course of decision to hold that shareholders (many of whom were in a fiduciary position, or incompetent) could be bound to It PROB.] In the Goods of WILLIAM GEORGE SMITH, deceased. [PROB. He had been absent from England since the year 1852, in which he attained his majority. By the will of an uncle, who died in Aug. 1855, he was entitled to a legacy of 100%., which, in consequence of his prolonged absence from England, he had never received. The deceased left his mother and one sister him surviving, the only persons supposed to be interested in his personal estate. His father, William Sladen Smith, left England in 1849, for Australia; from the time of his arrival in Australia up to 1854 he occasionally wrote to his wife, in this country. The last letter received by her from him, on or about the 14th Oct. 1854, was as follows: enter into marine insurances, their engagement having the 7th Aug. 1858, at Hong Kong, a bachelor and been for life insurance only, because they had re-intestate. ceived a paper, and did not forthwith come up and protest against it, they knowing that in law they were not bound, and that every one dealing with the company dealt with it on the footing of a life insurance company only. If there had been a long course of acquiescence in an illegal course of proceeding, and an acceptance of the profits for several years, the question might assume a different aspect. But here there had been only one dividend received, and even if he (the V. C.) had been satisfied that every shareholder had received notice in sufficient time to remonstrate at the next meeting, he should not have held that, by the single receipt of one such letter accompanying a dividend warrant, they would have bound themselves to such an increase of the business of the society. The claim, therefore, upon the policies could not be sustained. As to the judgments on the bills of exchange, they were perfectly valid on the face of them, and these debts must be allowed without prejudice to any steps which the official manager might take to set them aside. As to the return of the premiums, he was strongly inclined to think they must be returned, but this he would consider, and give judgment on a future day. July 23.-The VICE-CHANCELLOR now said, that it was only just that the premiumns should be allowed as against the estate, as the directors of this company had ample power to borrow money, if they wanted to do so, and the money received by them had been applied to the purposes of the company. His Honour, after observing that the total premiums received far exceed the total payments, said that, taking the case on its own merits, he had the case of a man paying premiums upon a policy which was worth nothing to him, being ultra vires. Granting these policies was not an immoral or an illegal act beyond this, that the directors had no power to do it. It was ultra vires, but they had power to receive money, and apply it for the purposes of the company. They did receive this money, which was applied for the company; and, on looking through the authorities, though there were none directly in point, the principle was the same which prevailed in cases of annuities, that where an annuity was set aside, yet the payments made in respect of that annuity were always allowed. So much of the claim, therefore, as related to the return of pre miums paid in respect of the marine policies must be allowed. Order accordingly-Liberty to Messrs. Burgess and Stock to proceed on their judgments against such of the shareholders as had signed the supplemental deed, if so advised. Solicitors: Eyre and Lawson; Nicholson. Common Law Courts. COURT OF PROBATE. Reported by Dr. SWABEY, of Doctors'-commons. "Sanunda, July 9th, 1854. "Dear Katherine,-It is now July 9th, and I have received no letter or intimation from Captain Thomas, at Port Adelaide, of any parcel, or otherwise. I forbear to express any more my feelings on my sad and heart- broken state. I have been very ill, and have been staying a week with a friend of one of my digging companions, a German, from Holstein, but return to the north to-morrow. I am afraid I shall be obliged to leave; as, from continued excitement of mind, and being in a state of deep melancholy, I feel getting worse. I cannot get rid of dysentery. If I do, I shall go at once and join my friends, that is to say, if I am able; if not, I shall leave for home, so that, my movements being uncertain, do not write to me after the receipt of this, as I may pass the letter at sea. I have made up my mind, should I reach England in safety, not to know, see, or have any communication or connection with any one whom I formerly knew. No, nor will it be for long, should I be spared, that I will breathe the atmosphere of that polluted city, where dwell those who foully and cruelly and cowardly slandered me behind my back. I have nothing more to say, finding it useless to repeat my wishes. I am still your affectionate husband, "W. S. SMITH. "P.S.-From the Hill River Close I sent letters during the months of February, March, April and May. I wrote to you, Lewis and Atkin, all to the care of Lethbridge and Mackrell, not knowing your address. I posted a newspaper yesterday, dated July 1st, and shall post another next Saturday; but when you receive this letter, write no more, as most likely I shall be on my way home." Since the receipt of this letter, his wife had never heard from him, nor been able to obtain any informa tion respecting him. She had written to a solicitor at Geelong, in the colony of Victoria, who was a friend of her husband, and received from him a statutory declaration, to the effect that he last saw him in 1852; that he was then leading a dissipated and vagrant life, and that he had heard nothing of him since, though he had made numerous inquiries for him. Dr. Tristram moved to decree letters of administration of the estate of William George Smith to Mrs. Katherine Smith, his natural and lawful mother and next of kin. The only difficulty seemed to be in In the Goods of WILLIAM GEORGE SMITH, deceased. passing over the father, who was entitled to the proPresumption of death-Uncertainty of precise date-perty and grant if he were living on the 7th Aug. Tuesday, Dec. 17. 73rd section Probate Act. 8. died on the 7th Aug. 1858, a bachelor and intestate, leaving his mother and sister surviving him. The father of S. had left England in 1849, and not been heard of since the receipt of a letter dated the 9th July 1854; but there was no evidence on which the court could presume that the father was not alive on the 7th Aug. 1858, and the grant of administration to the estate of S. was accordingly made to the mother, under the power given by the 73rd section of the Probate Act. The deceased in this case, a master mariner, died on 1858, when the deceased died. It was now upwards of seven years since he had been heard of. If the evidence is not sufficient to lead the court to presume that he was dead at the date of the son's death, the grant might be made to the mother under the 73rd section of the Probate Act, as In the Goods of Peck, deceased, 2 L. T. Rep. N. S. 159, s. c. 2 Swab. & Trist. 506. Sir C. CRESSWELL.-I think the evidence is not sufficient to entitle me to presume that the father died before the son. From some curious expressions used by him in the letter, it is possible that he may have PROB.] In the Goods of A. PILE, deceased-In the Goods of L. MARIA DE LA FARQUE, deceased. [PROB. had reasons for not writing again to his wife. You Jan. 14 and 21. 1317.) And the rule was, that where a residuary bequest is made to several persons as tenants in common, and one of them dies in the testator's lifetime, his share did not pass to the survivors, but was treated as undisposed residue: (2 Wms. on Exors., 5th ed. 1315.) Upon the dicta cited, he submitted that the grant should go to Samuel Pile as a natural and lawful child, and entitled, as one of the next of kin of the In the Goods of ALEXANDER PILE, deceased. Administration with will and codicil annexed-Construction-Residuary estate-Tenancy in common-deceased, to share in the undisposed residues of his residue of his personal Lapse to undisposed residue. A. by his will bequeathed the estate to be equally disposed children, whom he named. died in A.'s lifetime. The court held that the five children took as the tenants in common, and the share of the deceased child therefore lapsed to the undisposed residue, and granted administration with the will and codicil annexed to B., a son of the deceased, not as a legatee, but as entitled as one of his next of kin to part of the undisposed residue. Alexander Pile died on the 24th Aug. 1832, having made and duly executed his last will and testament, dated the 9th April 1831, with a codicil thereto dated the 10th April 1831, and by his will appointed his wife, Harriett Pile, his sole executrix, and he gave her all his copyhold and leasehold premises, goods and chattels, for her life, and after her death bequeathed, "what goods or chattels remained to be equally disposed of amongst his children, viz.: Harriett Pile, John Pile, Mary Pile, Ann Chedzoy, and Hester Pile." He also left to his son Samuel Pile, after the death of his wife, a malt and mill-house and houses. Ann Chedzoy died in the lifetime of the testator, and Harriett Pile, Mary Pile and Hester Pile survived him, but had all since died intestate, leaving John Pile, the surviving residuary legatee substituted. Harriett Pile, the executrix died on the 16th Jan. 1841, without having proved the deceased's will, and no representation had hitherto been taken out to his personal estate. John Pile had been cited by Samuel Pile, as one of the natural and lawful children of the deceased and a legatee named in the said will, to accept or refuse administration with the said will and codicil annexed, or to show cause why the same should not be granted to the said Samuel Pile as such legatee, but John Pile had entered no appearance thereto. personal estate; and he moved accordingly. Sir C. CRESSWELL.-The question of construction is not free from difficulty, and there are cases referred to by Williams, J., which may go against the construction you contend for. I will look into these cases before deciding the question of construction. Cur, adv. vult. Jan. 21.-Sir C. CRESSWELL.-I have looked at the cases referred to by Williams, J., and I think the construction put upon the residuary clause by Dr. Tristram is correct. I will, therefore, direct the grant to go to Samuel Pile as one of the next of kin of the deceased entitled to share in the undisposed residue of his personal property. Toller, proctor. Tuesday, June 24. In the Goods of LOUISA MARIA DE LA FARQUE (widow), Louisa Maria de la Farque, of Ipswich, died on the 24th Nov. 1833, a widow, having made her last will, dated the 20th Nov. 1833, whereby she bequeathed all her residuary estate to her executors Robert Garrod and Edward Davers, upon trust for her three sons, William James de la Farque, George A. de la Farque, and Charles H. de la Farque. On the 7th Feb. 1834 Edward Davers alone proved the said will in the Prerogative Court of Canterbury, and died in 1853, leaving a will, of which he appointed no executor, and The notice of motion filed was in accordance with the the said Robert Garrod him surviving. terms of the citation. Dr. Tristram for Samuel Pile. On the 12th Nov. 1858 the said Robert Garrod duly renounced the executorship of the deceased's will. Sir C. CRESSWELL.-There is a preliminary objection to ny granting the motion according to the terms of The deceased, under the limitations of her father's the notice of motion filed. The only property given to will, was, at the time of her death, entitled to oneSamuel Pile may, for anything that appears, be copy-fifth share of 7917. 178. New Three per Cent. Bank hold or freehold. To entitle you to the motion, there should be an affidavit showing that it was leasehold. Dr. Tristram.-There was certainly that objection to the motion as worded. But he submitted that the grant ought to go to Samuel Pile, not as a legatee, but under a superior title, viz. as one of the next of kin of the deceased, and as such entitled to share in his undisposed residuary estate. The one-fifth share of the residuary personal estate given to Ann Chedzoy, provided it were given to her as tenant in common, would lapse by her death in the testator's lifetime to his undisposed residuary estate. The words of the gift were, 66 what goods or chattels remain after my wife's death to be equally disposed of amongst my children" (the five before named); and the rule of construction was, that where a residue is given to more persons than one by any mode of expression that denotes a severance, they take as tenants in common. The words to be equally disposed of amongst my children" clearly denoted such a severance as to create a tenancy in common between them: (2 Wms. on Exors., 5th ed. Annuities, and 3321. 8s. 5d. cash, which was now standing in the name of the Accountant-General of the Court of Chancery. William James de la Farque (the eldest son of the deceased) was in a state of great poverty, and, in consequence of ill-health, of no fixed occupation, and at times dependent for subsistence upon private charity; one of his two brothers died many years ago intestate, and unmarried, and the other had not been heard of for about twenty-five years, and was believed not to have been married. Under these circumstances, Wm. James de la Farque claimed to be entitled to the whole of his mother's one-fifth share in the above funds-namely, to onethird in his own right and to the remaining two-thirds as sole next of kin of his brothers, and was about to petition the Court of Ch. for the payment to bin of the same, but was advised by his Chancery counsel that, previous to filing his petition, he ought to obtain letters of administration de bonis non with the deceased's will annexed. ADM.] DIGEST OF MARITIME LAW CASES. [ADM. 1395. Claim of shipowner not sustained, jury considering that the bow port had not been sufficiently secured and that the vessel was never on the rocks as alleged: (Robinson v. Brockett, &c., Newcastle-on-Tyne Assizes, Feb. 28, Shipping Gazette, March 3, 1840) He had, however, no relatives or friends who were | (Dixon v. Sadler, C. E., June 7, 1839; 8 M. & W. 895; Harrison's Digest, 2009.) willing to become sureties to the administration bond. Dr. Spinks, upon the joint affidavit of the said Wm. James de la Farque, and Mr. H. A. Maude, his solicitor, verifying the above facts, moved the court for an order to dispense with the usual sureties to the bond to be entered into by the said Wm. James de la Farque, upon his obtaining his grant of letters of administration de bonis non with the deceased's will annexed: (Court of Probate Act 1857, s. 82.) Sir C. CRESSWELL declined granting the motion without some further account of the brothers of Wm. James de la Farque, so as more clearly to show that the applicant was entitled in his own right to the whole fund. 1395 a. Bill of interpleader sustainable where two part owners separately claim from broker a total loss of a ship recovered by him on a policy of insurance: (Stuart v. Welch, 4 Myl. & C. Harrison's Digested Index for 1841.) 1396. Underwriters on a time policy held not liable for a total loss of ship, the jury finding that she had been employed in the slave trade: (The Formidable; Blythe v Rule for new trial Forbes, C. E., Feb. 22 and 23, 1844. refused, C. E., April 29, 1844, Shipping Gazette.) 1397. Ship sold at Gambia, where repairs could not be done; underwriters held liable. The policy admitted the ship to be seaworthy when she sailed, and the underwriters therefore were barred from pleading that the loss which was proximately caused by perils insured against, arose from the decayed and unseaworthy state of the ship: (Parfitt v. Thompson, &c., Bristol Assizes, Aug. 23, 1844, 13 M. & W. 392; Arnould, 698.) 1398. Vessels fishing for sea elephants and seals in South Seas, have usually tenders in which the fishing is carried on, the vessel herself being moored in some convenient harbour, and often without any of the crew being left on board. Underwriters held liable for a total loss, the vessel having been driven from such moorings when the crew were absent; and never afterwards heard of: (The Esther; Sturge v. Haldemand, C. E., Feb. 28, 1848, Shipping Gazette.) Jan. 24.-Dr. Spinks renewed the above motion. There was a further affidavit of William James de la Farque filed, stating that his brother George Augustus de la Farque entered the British navy as a seaman in 1837; that the ship to which he was attached was shortly afterwards ordered to the South African station; that he died while so stationed there, a bachelor and intestate; that he had been informed that his brother Charles H. de la Farque, about the year 1840, sailed on a smuggling expedition, that he was last seen by an old schoolfellow about the year 1399. Loss of ship occasioned by the wrongful act of the 1841 at the Cape of Good Hope, and that he had assured in sending her to sea in an unfit condition, and never since been seen nor heard of, and that he had improperly permitting her to be on the high seas, without never heard of his being married or having made a a proper crew, whereby she was wrecked: held, not recoverable from underwriters on a time policy effected while will. A further affidavit of Mr. Maude, his solicitor, the ship was lying outward-bound at the place of the had also been filed, stating that, on inquiry at Somer-owner's residence, although there is no implied warranty set-house, he had been informed that it appeared by the register that a person of the name of George Augustus de la Farque, who was born at Ipswich, had entered the British Navy in Oct. 1837, and had died on board her Majesty's ship Bonetta, in Feb. 1838 off the Island of Ascension. A certificate of his death was annexed. 1391. A ship bound from Shields for Aden with a cargo of coals, ran on the Scharhorn Reef, and was taken into Cuxhaven, where the coals were found wetted with salt water, so that it would be dangerous to reship them for fear of spontaneous combustion, and they could not be re-conditioned at a reasonable expense. Underwriters held liable for a total loss of freight: (The Charles Kerr; Michael v. Gillespy, C. P.. Dec. 19, 156, Jan. 19 and May 23, 1857, Shipping Gazette; 3 Jur. N. S. 1219; 26 L. J. 306, C. P.) "It is a maxim of our insurance law, and of the insurance law of all commercial of seaworthiness in such a case. nations, that the assured cannot obtain indemnity for a loss produced by their own misconduct or wrongful act:" (The Mary Graham; Thompson v. Hopper, Q. B., Nov. 13, 1855; Feb. 23 and Nov. 10, 11, and 25, 1856, Shipping Gazette, March 7, 1856; Harrison's Digest, 102 and 120; 6 E. & B. 172 and 937; 3 Jur. N. S. 133 and 608; 25 and 26 L. J. 18 and 240, Q. B.; W. Rep. 360 and 83. See as to this case "Seaworthy," 2030.) 1400. Loss of ship captured by pirates and recaptured by an English ship of war, the officer of which improperly sold her. Underwriters held liable, notice of abandonment having been given within a reasonable time: (The Eliza Cornish; Dean v. Hornby, Q. B., Jan. 17, 1854; 2 C. L. R. 1519.) V. Loss oF TRADE. 1401. Loss of trade through want of a boat which was sunk by a steamer. No claim for damages on that account could be made against the steamer, as the boatman should at once have supplied himself with a new buat when he found the other irreparable: (by Lord Abinger in Leverett v. Hill, &c., Dec. 15, 1838, Shipping Gazette.) LYING TO. 1402. The rule as to porting helm established by the Merchant Shipping Act, 17 & 18 Vict. c. 104, held applicable to two vessels lying to and approaching each other, one Feb. 9 and 12, 1856; W. Rep. 353.) heading to N. and the other to S.: (The James, J. C. P. C., 1403. Vessel lying to in the immediate track of vessels, without having proper sail to keep herself under command, held to be in fault: (The Stirlingshire v. The Afrika, A.C., June 16, 1856, Shipping Gazette.) MALT. 1404. Malt destroyed or damaged by fire or lost by shipwreck, duty on same repayable by Excise to the owners of it: (The Industry, Court of Excise, July 31, 1845, Shipping Gazette.) MANNING (INSUFFICIENT). General and Solicitor-General, 19th Dec. 1855, on a case MARINE INSURANCE COMPANY.- MARINER. (See "Seaman.") ADM.J THE LAW REPORTER. DIGEST OF MARITIME LAW CASES-Re CONINGSBY. MARITIME LAW (GENERAL). 1406. A British ship having been recaptured from pirates by a ship of war, and having sustained damage, the officer in command sold her without necessity; the vessel was afterwards repaired by the purchaser, and sent to this country. Ship decreed to be restored to the owners. English municipal law or local laws of Fayal not the guide, The but the general maritime law, unless the court is compelled by statute to adopt English municipal law in considering propriety of sale. "The rule of English law, that necessity alone can justify the sale of a ship by the master, is in strict accordance with the law of other maritime nations. A ViceAdmiralty has not Jurisdiction to give a proper title to a British ship condemned and sold at a port abroad:" (The Eliza Cornish, or The Segredo, A.C., June 18, 1853; 1 E. & A. R. 36. But see Cammell, &c. v. Sewell, &c., Ex. Ch., Sept. 8, 1860; 2 L. T. Rep. N. S. 802; No. 1781 b hereof; Maclachlan on the Law of Merchant Shipping, 162.) MARITIME LAW (IN TIME OF WAR). 1407. I. "Privateering is and remains abolished. 2. The neutral flag covers enemy's goods, with the exception of contraband of war. 3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag. 4. "Blockades, in order to be binding, must be effective: that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.' Declaration signed by Congress of European Powers at Paris, April 16, 1856: (Shipping Gazette; Maclachlan on the Law of Merchant Shipping, 470.) MASTER. (See "Advances," "Bill of Lading," "Shipowner.") "Loss of Cargo," I. Appointment and Dismissal, 1408 to 1411. 1411 a 10 1419. As to bills of lading and charter-parties, 1420 to As to sale of Cargo, 1415, 1417, 1419, 1443. IV. Liability for Supplies, &c., 1433 to 1435. [Vol. 7. [BANK. 1411. Damages for wrongful dismissal of master. Refusal she gets down to Gravesend would deprive him of any remedy of captain to be on board a ship sai ing from London before against owners for dismissal: (The Sir Thomas Gresham; Guzette.) Rippon v. Lidgett and others, C. P., March 1, 1858, Shipping II. CARE OF, LIABILITY AND DUTY IN RELATION TO CARGO. duty as to sending forward cargo in case of ship being pre1411 a. Case relative to transhipment. What is master's Thornton, 9 Ad. & E. 314; Harrison's Digest, 1840.) vented by damage from completing her voyage: (Shipton v. damage to cargo caused by negligence or carelessness in his 1412. Master liable under ordinary circumstances for men discharging it: (American case: Stout v. Wells, C. P., New York, April 4, Shipping Gazette, April 19, 1841.) 1413. Under the direction of judge Talmadge, a jury found the master not liable for loss of goods left at a wharf for shipment, although a receipt was granted for them by his broker; as the broker had no authority so to act in the master's absence: (American case: Gracie, &c. v. Bennett, Superior Court, New York, Nov. 19, Shipping Gazelle, Dec. 21, 1840.) his vessel while being conveyed on freight from Oporto to 1415. Where a cargo was improperly sold without the intermediate port, acting bona fide in the course of his emauthority of its proprietor by the master of the ship at an ployment as master, and meaning to execute his duty, but under a mistake, so as to be thus guilty of an act which amounted to a conversion of the merchant's goods: held that an action was maintainable jointly against the owner and inaster: (Eubank v. Nutting, &c., C. P., April 20, 1849: 7 C. B. 797; Harrison's Digest, 3394; Shee's Tenterden, 274.) cargo by ventilating it, if necessary, and the master and ship1416. It is the captain's duty to take all possible care of owner are liable for damage to the cargo occasioned by rats = (Laveroni v. Drury, C. E., sittings in banco, Nov. 17, 1852; 22 L. J. 2, Ex.; Muter's Executors v. Jones, Supreme Court, Cape Town, Aug. 21, Shipping Gazette, Oct. 31, 1860.) 1417. Master held liable for loss, by sale, of sea-damaged opium which might have been forwarded to its destination. It is not enough to justify a sale, that the deterioration VII. Pledging Owner's Credit or selling Ship, 1441 to being 10 per cent. would increase to 20 per cent. by forward 1444. VIII. Sale of Ship, 1443, 1444. IX. Wages and Disbursements, 1445 to 1455. X. Miscellaneous, 1456 to 1459 a. Advance of Freight, 1424. Affreightment (Contracts of), sect. II. Appointment and Dismissal, sect. I. Bottomry, 1459 a. Breach of Engagement with Master, 1409. Broker acting without Authority, 1413. Cargo, sect. II. and 1461. Charter-party, sect. II. Commission on Freight and on Proceeds of Sale of Ship, 1459. Crew, sect. III. Demurrage, 1423. Dissolution of Charter-party, 1421. Forfeiture of Wages, 1449. Landing Cargo (Negligence in), 1412. Liability for Stores, &c. supplied to ship, sect. IV. Lien on Ship, 1445, 1446, 1447, 1448, 1450, 1451, 1452. Mate, 1456 a. Miscellaneous, sect X. Misconduct, sect. VI. Mortgagees, 1447 to 1453. Passage-money home, 1459 a. Passengers, sect. V. Pledging Shipowner's Credit, sect. VII. Sale of Cargo, 1415, 1417, 1419. Sale of Ship, 1443, and sect. VIII. Seamen, sect. III. Set-off against Wages, &c., 1455. Ship, sect. VII. Transhipment, 1411 a. Ventilation, 1416, Wages and Disbursements, 1453 a to 1460. I. APPOINTMENT AND DISMISSAL. 1408. Shipmaster appointed by captain of a ship of war (the salvor) held to have the same authority as the original master who had been killed (The Eliza Cornish, or The Segredo, A. C., June 18, 1852, Shipping Gazette.) 1409. Shipowner held liable for breach of engagement with a seaman to be master of a ship: (The Foam; Pethey v. Blake, Liverpool C. C. July 27, 1852, Shipping Gazette.) 1410. Master dismissed wrongfully. Verdict in his favour against shipowner for damages: (The George Punchard v. Lidgett, Melbourne Supreme Court, Shipping Gazette, Dec. 22, 1854.) (Before Mr. Commissioner FONBLANQUE.) Application for release under sect. 112 of the Bankrupt Where a bankrupt is not in custody, he is to be free from arrest in coming to surrender, and where he is in custody for debt the court may, except in certain cases, order his release absolutely or conditionally. The cases in which it is provided that the court shall not order the bankrupt's release are, where it shall appear by any judgment, order, commitment, or sentence, under which the bankrupt is in prison or in custody, or by the record or entry of any such judgment, order, commitment, or sentence, and the pleadings or proceedings previous thereto, that he is in prison or in custody for any debt contracted by fraud or breach of trust, or by reason of any prosecution against him whereby he had been convicted of any offence, or by any debt contracted by reason of any judgment in any proceedings for breach of the revenue laws, or in any action for breach of promise of marriage, seduction, criminal conversation, libel, slander, assault, battery, malicious arrest, malicious trespass, &c.: Held, that this proviso does not apply to an unsuccess |