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provides that: "The High Court of Admiralty may, on the application of the defendant in any cause of damage, and on his instituting a cross cause for the damage sustained by him in respect of the same collision, if in the principal cause the ship of the defendant has been arrested or security given by him to answer judgment, and in the cross cause the ship of the plaintiff cannot be arrested, and security has not been given to answer judgment therein, suspend the proceedings in the principal cause, until security has been given to answer judgment in the cross cause." Security has been given by the defendants. The Medea cannot be arrested, seeing she is at the bottom of the sea, and therefore the plaintiffs are entitled to have security given by the defendants. The fact of the plaintiffs not requiring bail to be given was a mere device to prevent the defendants availing themselves of the statute, but the defendants have actually given bail, and therefore the statute is complied with. Further, the owners of the Medea are a foreign company, and it would be a great hardship that the defendants should have no security.

Dr. W. Phillimore against the motion.-The section quoted was passed to remedy cases where the plaintiff was able to lay his hands on the res, while the defendant was unable to obtain any security, and was thus placed in a very much worse position than the plaintiff. In the present instance the plaintiffs required no security, and were consequently on the same footing as the defendants prior to the passing of the Act. If the defendants choose to give security it is immaterial to us.

Sir R PHILLIMORE-I dismiss the motion with costs, being of opinion that the statute was not intended to include cases like the present.

Solicitors for the plaintiffs, Stokes, Saunders, and Stokes.

Solicitors for the defendants, Robins and Cameron.

Tuesday, Nov. 7, 1882.
(Before Sir R. PHILLIMORE.)
THE FALK.

Collision-Bail-Sale of ship in another action-
Payment of proceeds into court.
Where after judgment against a ship in a damage
action, where bail has been given and the ship
released, judgment is given against the same ship
in a necessaries action in which the ship is sold
and the proceeds of the sale of the ship paid into
court, the plaintiffs in the damage action cannot
be paid out of the proceeds to the prejudice of
other claimants still having maritime liens upon
the proceeds.

THIS was a motion by the plaintiffs, in an action for damage by collision, for payment out of damages and costs.

The action was brought by the owners of the Vero F. against the owners of the Falk to recover damages in respect of a collision between the two vessels.

The Falk was arrested, whereupon bail was given by Messrs. Jones, Heard, and Co., of Cardiff, the ship's agent, in the sum of 300l., being the amount claimed on the writ in the action.

The action was tried, and the Falk was held

[ADM.

alone to blame for the collision and condemned in the damages thereby occasioned to the Vero F., and a reference was ordered to the registrar and merchants to assess the amount of the damage. The registrar assessed the damages at 1251., and his report was not objected to.

The plaintiff's costs were taxed at 2291. The amount of damages and costs exceeding the amount of the bail given, the plaintiffs applied for and obtained leave to re-arrest the ship to obtain security for the amount exceeding 300l. ; whereupon, to avoid the arrest of the ship, the solicitors for the defendants gave an undertaking to put in the required supplementary bail, and the ship was not re-arrested in that action.

Subsequently to these proceedings, several actions for wages and necessaries (the Falk being a foreign ship) were instituted against the Falk, and these actions proceeded to judgment; and in one of them the ship was, by order of the court, sold, and the proceeds of the sale were paid into

court.

The plaintiffs in the collision action now applied for payment of their damages and costs out of such proceeds.

L. E. Pike, for the plaintiffs, in support of the motion. When it was found that the amount of bail given in the collision action was insufficient to satisfy the damages and costs, the plaintiffs applied for and obtained an order to re arrest the Falk, which order placed that vessel under the control of the court. The proceeds of the sale of the Falk are now in court, and as the plaintiffs in the damage action have a prior lien to the plaintiffs in the necessaries action, the money should be paid out in priority to the other claims.

J. P. Aspinall, for Messrs. Jones, Heard, and Co., in support of the motion.-By the practice of the Court of Admiralty the mode of enforcing pay. ment has always been by monition to the owners of the ship held to blame, and in default of payment recourse is bad to the bail; and the money in court being the property of the owners of the Falk, that should be applied to the payment of damages and costs before coming upon the bail.

Dr. Phillimore, for the plaintiffs in the necessaries action, against the motion. The plaintiffs in the collision action have no right to the proceeds of the sale in the necessaries action. By taking bail they had given up their maritime lien on the Falk, and that lien is to be considered as discharged. In all cases where the ship has been re-arrested as a security where the bail has ultimately been found insufficient, it has been either in respect of costs or where no other actions had been instituted against the ship. The plaintiffs in the damage action are now in the position of execution creditors, and their claim as such is postponed to the claim of those who have a lien still unsatisfied on the ship. The Wild Ranger (Br. & L. 84) is a direct authority in my favour.

L. E. Pyke in reply.-The Wild Ranger is distinguishable; in that case no order was made to re-arrest the ship after judgment had been given. This is virtually an application for payment out of money in respect of costs, the costs greatly exceeding the amount of damage. In both The Freedom (1 Asp. Mar. Law Cas. 136; 25 L. T. Rep. N.S. 392; L. Rep. 3 A. & E. 495) and the

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Hero (Br. & L. 447) the ships were re-arrested because the bail was insufficient.

Sir R. PHILLIMORE.-I reject the motion; the plaintiffs in the damage action having taken bail cannot be paid out of the proceeds to the prejudice of other claimants still having liens upon the proceeds.

Solicitors for the plaintiffs in the damage action, Ingledew and Ince.

Solicitors for Messrs. Jones, Heard and Co., Clarkson, Greenwell, and Wyles.

Solicitors for the plaintiffs in the necessaries action, Fielder and Sumner.

Tuesday, Nov. 14, 1882.

(Before Sir R. PHILLIMORE.)

THE ALNE HOLME (First Action). Collision-Damage to cargo-Stay of proceedings -Limitation of liability-Merchant Shipping Acts.

Where owners of cargo have recovered judgment in a collision action brought by them, and the owners of the ship carrying the cargo subsequently bring an action against the same ship to recover damages in respect of the same collision, and the damages in both actions would exceed the value of the defendants' ship at 8l per ton, and the damage in the cargo action alone would not exceed that amount, the court will not stay proceedings in the cargo's action until after judgment in the ship's action, on the ground that without such stay the defendants have to institute a limitation of liability action, which would be unnecessary if the defendants obtained judgment in the ship's action.

THIS was a motion by the defendants in a damage suit to stay proceedings in a prior suit brought against the same ship.

An action had been brought by the owners of cargo shipped on board the Medea against the owners of the Alne Holme in respect of the loss of cargo occasioned by a collision between the Medea and the Alne Holme, and the Alne Holme had been found solely to blame. A reference had been held, and the registrar's report was to issue in a few days. Subsequently to the above action another action was brought by the owners of the Medea against the owners of the Alne Holme in respect of the same collision, and it was now prayed that further proceedings in the first action might be stayed until judgment had been given in the second action.

Bucknill, for the defendants, in support of the notion. The claim of the owners of cargo is for 32007.; the claim of the owners of the Medea is for 70007., making a total, which is 20001. in excess of the value of the Alne Holme, reckoning her value at 81. per ton. This being so, the defendants propose to bring a limitation of liability suit, should the plaintiffs in the first action issue execution, but if proceedings in the first action are stayed and the defendants are successful in the second action, the plaintiffs in the first action will get 208. in the pound, and the expense of a limitation of liability suit will be saved. The defendants are willing to pay the money into court, and pay interest on it.

Dr. W. Phillimore, for the plaintiffs in the first action, against the motion. The action instituted VOL. IV., N.S.

[ADM.

by the owners of cargo has proceeded to judgment in due form, the registrar's report will shortly be out, and the plaintiffs are entitled to issue execution for the money. The second action has nothing whatever to do with the owners of cargo, and it is unfair that one action should be tied up until judgment in another action.

Sir R. PHILLIMORE.-I am of opinion that to stay the proceeding in the first action would be unfairly prejudicial to the plaintiffs in that action, and therefore I must dismiss the motion with costs.

Solicitors for the owners of cargo, Stokes, Saunders, and Stokes.

Solicitors for the owners of the Alne Holme, Robins and Cameron.

Friday, Nov. 3, 1882.

(Before Sir R. PHILLIMORE.)

THE IMMACOLATA CONCEZZIONE.

Transfer-Sale of ship-Action for necessaries— County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71), 8. 6.

Where a necessaries action against a ship in the City of London Court has proceeded to judg. ment, by which a sale of the ship is ordered, and subsequently another action is commenced in the High Court by material men having a possessory lien upon the ship, and an appearance has been entered to the action in the City of London Court by the plaintiffs in the High Court, the sale will be stayed, and the City of London Court action transferred to the High Court upon the application of the plaintiffs in the High Court.

THIS was a motion on behalf of certain shipbuilders, plaintiffs in an action in the High Court, for repairs done to the Immacolata Concezzione, for the transfer to the Admiralty Division of the High Court of Justice of an action for necessaries pending in the City of London Court.

A necessaries action was brought in the City of London Court against the above-named ship, and judgment was given for the plaintiffs, ordering the sale of the ship by the bailiff of the City of London Court.

The plaintiffs in the action in the High Court intervened, and entered an appearance in the action in the City of London Conrt. Subsequently to the institution of the action in the City of London Court, an action for repairs effected upon the ship was brought in the Admiralty Division of the High Court, against the ship, by the parties moving the court.

Dr. W. Phillimore, for the plaintiffs in the action in the High Court, in support of the motion,-The proceeds of a sale of the Immacolata Concezzione by the bailiff of the City of London Court would be ridiculously small, as no one would care to buy her in consequence of the institution of the second action for repairs. The plaintiffs in the action in the High Court have a possessory lien on the ship, by reason of their repairs to her, and are therefore moving the court that the City of London Court action may be transferred to the High Court, in order that they may be more adequately capable of enforcin their claim against the ship.

2 Q

Gainsford Bruce, for the other plaintiffs, against the motion. The plaintiffs in the action in the High Court are in nowise entitled to have the County Court action transferred to the High Court. Under sect. 6 of the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) it is provided that "the High Court of Admiralty of England, on motion by any party to an admiralty cause pending in a County Court, may, if it shall think fit, with previous notice to the other party, transfer the cause to the High Court of Admiralty;" but the plaintiffs in the action in the High Court are not parties to the Action in the City of London Court, and therefore have no right to have that action transferred to the High Court. The proceedings in the City of London Court action were in every way regular, and the City of London Court, with respect to this action for necessaries, is of co-ordinate jurisdiction with the High Court, and therefore it is an unlawful act on the part of the marshal of the High Court to interfere with the sale of the ship by the bailiff.

Dr. Phillimore in reply. The plaintiffs in the High Court entered an appearance in the City of London action, and by so doing made themselves parties to the action, and moreover under rule 10 of Order XXXIII. of the County Court Rules, they clearly are persons claiming to have an interest in the vessel, and so are entitled to intervene for the purpose of having the action transferred to the High Court.

Sir ROBERT PHILLIMORE.-I allow the motion without prejudice to the rights (if any) of the plaintiffs in the City of London Court action.

Solicitors for the plaintiffs in the High Court, Thomas Cooper and Co.

Solicitors for the plaintiffs in the City of London Court, Stocken and Jupp.

Tuesday, Jan. 24, 1882.

(Before Sir R. PHILLIMORE).

THE HELENslea.

THE CATALONIA.

Practice Admiralty action in personam-Service of writ in personam Address of defendant

incorrect on writ-Defendant resident out of jurisdiction-Judicature Act, Order II., rr. 3, 4 -Consolidation.

The misdescription of the residence of a defendant, whereby he is alleged to be resident within the jurisdiction, whilst he is in fact resident out of the jurisdiction, is not a sufficient ground for setting aside a writ in personam intended for service as soon as the defendant shall come within the jurisdiction.

Consolidation of cross causes of damage will not be ordered where service of the writ in the principal action has not been effected.

[ADM.

The writ in the first or principal action, instituted by the Cunard Steamship Company on the 25th Dec. 1881, was in personam and directed to "William Stephen, of the city of London," defendant, and was indorsed: "The plaintiffs, as owners of the steamship Catalonia, claim the sum of 10,000l. against the defendant as owner of the barque Helenslea, for damage occasioned by a collision which took place in or near Cork Harbour in the month of December 1881, between the Helenslea and the Catalonia, including costs of suit." On the 26th Dec. 1881 a cross action in personam was instituted by the owner of the Helenslea in respect of the same collision, and an appearance was duly entered in answer to the writ in this action by the Cunard Steamship Company.

On the 26th Dec. 1881 the Cunard Steamship Company took out a summons in the cross action calling upon the plaintiff in the same to show cause why the cross action should not be consoli. dated with the principal action. This summons came on before the registrar, and was by him referred to the judge.

Before this summons came on for hearing, the solicitors for William Stephen gave notice of motion to direct the writ in the principal action to be set aside, and filed affidavits in support of such motion, from which it appeared that they, on behalf of the owner of the Helenslea, had refused to accept service of the writ in the principal action; that the questions in both actions were identical; that William Stephen was the sole owner of the Helenslea; that he resided and carried on business at Dundee in Scotland, and had no residence or place of business in England; that the writ in the principal action had never been served upon him; that he was advised that the writ could not have been issued without untrue representations as to his place of residence, and that he was entitled to have the writ set aside as improperly issued.

It was agreed that the affidavits should be evidence in both actions,

Dr. W. Phillimore for the owner of the Helenslea. -Inasmuch as the collision occurred without the territorial jurisdiction of the court and the Helenslea has not been arrested, the writ, if it is to be served without the jurisdiction, should be set aside, because prior to its issue the leave of the court should have been obtained. The ruling in The Vivar (35 L. T. Rep. N. S. 782; 3 Asp. Mar. Law Cas. 308; 2 P. Div. 29) is a direct authority in my favour. But if the writ is to be served within the jurisdiction, it is vitiated by the false description of the owner of the Helenslea. The form in the schedule appended to the Judicature Act of 1873 is an argument in favour of the view that a writ for service within the jurisdiction is only effectual where the defendant resides within the jurisdiction. With respect to the consolidation summons, if the writ fails, the summons fails also; but even if the writ be not set aside, no consolidation order ought to be made, because service of the writ has not been made nor accepted nor bail given.

Butt, Q.C. and Myburgh for the Cunard Steamship Company.-The writ does not describe the defendant as of London, and there was no intention of serving him without the jurisdiction. But it is intended to serve the defendant with the

writ the first time he crosses the border, and if then the description in the writ be wrong it can be amended. Order II. r., 3, contemplates such variations under the words "with such variations as circumstances may require." Seeing that the owners of the Catalonia are the plaintiffs in the principal action, they are entitled to have the conduct of the proceedings, and therefore the consolidation order should be made.

Sir ROBERT PHILLIMORE.-I am of opinion that I cannot grant the motion to set aside the writ issued on behalf of the Cunard Steamship Company. The writ in question is not a writ for service out of the jurisdiction; it is simply a writ for service within the jurisdiction, and it is said that it has been taken out in order that the defendant may be served with it, if he comes within the jurisdiction, at any time whilst it remains in force. At present it seems to me that no sufficient reason has been shown why it should be set aside as irregular, and I must therefore reject the motion. It may be that hereafter some reason, which does not exist at present, may arise in favour of a similar motion being granted; but as to that I express no opinion. I do not think I can make any consolidation order in this case. Service of the writ taken out by the Cunard Steamship Company has not been made or accepted, and in these circumstances I am of opinion that I ought not to order the two actions to be consolidated. Two suits can only, I think, be consolidated after each of them has become a lis pendens; and it is clear that a suit in personam does not become a lis pendens until after service of the writ of summons. On this point the well-known case of Ray v. Sherwood (1 Curteis, 173, 193; 1 Moore P.C. 353) is an authority.

[On the 3rd March 1882 the matter was settled by the respective parties before the cross action instituted by the owner of the Helenslea was heard.]

Solicitors for the Cunard Steamship Company, Gregory, Rowcliffe, and Co.

Solicitors for the owner of the Helenslea, Thomas Cooper and Co.

Tuesday, Feb. 7, 1882.

(Before Sir R. PHILLIMORE.)
THE MIRANDA.

Practice-Preliminary act—Amendment. In a damage action the court will not allow a party to amend a mistake in his preliminary act, prior to trial, although he applies upon affidavit, alleging that the mistake was the result of a clerical error.

THIS was a motion by the plaintiffs (the owners of the Cleanthes) in a damage action to amend their preliminary act. An affidavit in support of the motion was made by the plaintiffs' solicitor, who stated that by mistake the words “ the engines of the Cleanthes were put full speed about between two and three minutes before the collision" were inserted in the 12th article of the draft preliminary act, and were copied into the filed preliminary act, and that the words should have been "the engines of the Cleanthes were put full speed astern about two or three minutes before the collision," and that this was the result of a clerical

[ADM.

error; that the proposed amendment was bonâ fide, and was not required by any information received by the plaintiffs subsequent to the filing of the preliminary act; and further that the error had been discovered prior to the opening of the defendants' preliminary act.

Dr. W. G. Phillimore in support of the motion. -In The Vortigern (Sw. 518) Dr. Lushington lays it down that an application to amend a mistake in a preliminary act must be made immediately upon discovery, and must be supported by affidavit. Both these conditions have been complied with.

Myburgh, Q.C., against the motion, was not called upon.

Sir ROBERT PHILLIMORE.—I shall adhere to the practice I have always followed with regard to applications for leave to amend preliminary acts, and refuse to allow any such amendments to be made. The parties in an action of damage are not bound in their pleadings to repeat any errors or omissions which may exist in their preliminary acts, and it is open to them in their statement of claim, or statement of defence, to state correctly any facts which may have been omitted or erroneously stated in their preliminary acts; but I am quite sure that it would be improper for the court to allow any alterations to be made in the preliminary act. I therefore cannot accede to the application in this case, and I must reject the motion with costs.

Solicitors for the plaintiffs, Botterell and Roche. Solicitors for the defendants, Cooper and Co.

Wednesday, April 26, 1882. (Before Sir R. PHILLIMORE.) THE LOTUS.

Salvage-Tender-Costs.

In a salvage suit, where the tender was held sufficient, but was not liberal, the Court gave the salvors their costs up to the time of the payment of the tender into court.

THIS WAS a salvage action, brought by the owners, master, and crew of the screw steamship Dora, of 645 tons gross register, belonging to the port of Newcastle, against the screw steamship Lotus, her cargo and freight.

The Lotus, a screw steamship of 476 tons net register, belonging to the port of Liverpool, left Bordeaux on the 12th Jan. 1882, bound on a voyage to Liverpool, laden with a general cargo, and manned by a crew of eighteen hands all told.

On the 13th Jan. the screw shaft of the propeller of the Lotus broke; and on the 15th, when about sixteen miles off Point Baleines, on the coast of France, whilst at anchor, the Dora was signalled. The Dora then bore down upon the Lotus and towed her to a safe anchorage off Pauillac in the Garonne. The towage lasted from about 8 a.m. on the 15th till about 1.15 a.m. on the 16th, and extended over a space of from seventyfive to eighty miles.

The defendants, on the 27th March 1882, paid into court by way of tender for the salvage services, the sum of 300l., alleging that the same was sufficient. The plaintiffs rejected this tender, and replied that it was not sufficient. The Lotus,

her cargo and freight, were valued at 20,000l.; the Dora, her cargo and freight, at 25,000l.

Myburgh, Q.C. and Dr. W. G. F. Phillimore, for the plaintiffs, contended that the tender was inadequate, and that under any circumstances they ought to have their costs:

The William, 5 N. of Cas. 108.

Butt, Q.C. and Stewart, for the defendants, contra.

Sir ROBERT PHILLIMORE.-Looking to the circumstances of this case, I am of opinion that the tender is adequate, though not liberal. There is a question of some importance as to costs. I find that my predecessor, Dr. Lushington, in the case of The William (5 N. of Cas. 108), upon the subject of costs, said: "I have considerable difficulty upon the subject of costs. In ordinary cases, the rule of the Court of Admiralty has been this if a tender is made and rejected, which is afterwards pronounced sufficient, it ought to be followed by condemnation of the salvors in the costs, and no doubt, if I look to the practice of the other courts-I allude particularly to the opinion expressed by Lord Cottenham and the Master of the Rolls-costs are not given with a view of punishment, but as a matter of justice to the other party. I have considered how far this doctrine is applicable to cases of salvage, and I confess I have great difficulty in applying it with all its rigidity to such cases, for this reason: in the very nature of salvage services, there is something so loose and indefinite, and so difficult to be determined by the best constituted minds, when looking at their own case, that I am not inclined to press the doctrine to its full extent. Where there has been an offer on the face of the proceedings so large that it ought to have been accepted, I must administer justice in conformity to the rule I have mentioned. In the present case, however, whilst I certainly think the tender ought to have been accepted, yet, at the same time, looking at the value of the property and all the circumstances, I do not think that I ought to deprive the salvors of all reward; nor do I think that it would be for the interest of the public if I were to do so; because it is desirable to hold out a degree of extra encouragement, if I may say so, for the preservation of property. Upon the whole, therefore, in this case, though it is with some doubt, I do not condemn the salvors in costs." Dr. Lushington therefore held, in that case, that in a cause of salvage, where the tender was sufficient but not liberal, he had a discretion in the matter of costs. The exercise of this discretion as to costs is not affected either by the Judicature Acts or the Rules of the Supreme Court, and I shall give the salvors in this case their costs up to the time when the money was paid into court, and I shall make no order as to costs after that time.

Solicitors for the plaintiffs, Waltons, Bubb, and Walton.

Solicitors for the defendants, Walker, Son, and Field.

[Q.B. DIV.

There is no insurable interest in a purchaser of goods sold under an executory contract to answer a specific description, until the property in the goods has been transferred to the buyer by an appropriation of the goods to him; and if the goods are lost before such appropriation takes place, the buyer cannot recover for them under an open policy, although after the loss he pays for them and declares them under the policy.

Where A. contracted to sell goods to B. and C., and B. was buying to complete a contract made with C. for the sale of such goods, and this was unknown to A. and C., and all the goods were shipped together by A., without being specifically appropriated to either B. or C., and were lost, it was held that although after the loss C. paid for the goods and obtained the necessary documents entitling him to their possession if they had existed, there was no such appropriation as gave him an insurable interest.

D. and Co., sugar merchants of London, entered on 7th Jan. 1881 into a contract with B. and Co. (of Bristol) to sell them 200 tons of sugar, 21s. 9d. per cwt. net f.o.b. Hamburg; the further terms of the contract were "for January delivery at Hamburg; payment by cash in London in exchange for bill of lading." D. and Co. entered on 12th Jan. 1881 into a contract with the plaintiff to sell him also 200 tons of sugar upon similar terms to those of the contract with B. and Co. As a matter of fact B. and Co. had entered into the contract of the 7th Jan. with D. and Co. to enable them to execute a contract previously made by them on the same day with the plaintiff for 200 tons at an advanced price. At the time of the shipment D. and Co. only knew that they had engaged to sell 400 tons destined for Bristol, i.e., 200 tons to B. and Co. and a like number to the plaintiff, and while the plaintiff knew that 400 tons were coming from Hamburg, viz., 200 under his contract with D. and Co., and 200 under his contract with B. and Co., he did not know that D. and Co. were the shippers of the latter 200 tons. The provisions of the Statute of Frauds had been complied with by all parties in the case of the contract of the 7th Jan. between D. and Co. and B. and Co., of that of the 12th Jan. between D. and Co. and the plaintiff, but not of that of the 7th Jan. between B. and Co. and the plaintiff, for the latter had not signed any note of the contract so as to become liable on it. About the end of January D. and Co. advised their Hamburg forwarding agents that they had sold 400 tons for Bristol, giving them the necessary orders for their shipment. In consequence of there not being enough sugar of the specific description at Hamburg to meet these orders, D. and Co.'s forwarding agents could only ship to Bristol 3900 bags by a particular steamer, and proposed to send the 100 short by the next