cause; which if any proctor shall do, or procure to be done, or shall by any colour whatsoever defraud the advocate of his duty or fee, or shall be negligent in repairing to the advocate, and requiring his advice what course is to be taken in the cause, he shall be suspended from all practice for the space of six months, without hope of being thereunto restored before the said term be fully complete." By the Admiralty Court Rules, 1859, now in force, every plea is to be settled by counsel (rule 72), and every pleading stands admitted if not objected to within four days from the filing (rule 77). There is no rule from which it can be implied that the ancient practice of allowing counsel's fee for advising on adverse pleadings is no longer in force (a). Deane, Q.C., contra.-The 131st canon is irrelevant; it relates to the conclusion of a suit. The new rules for pleadings were expressly framed with a view to simplicity and to avoid expense; and to allow this fee would be directly contrary to the purpose of these rules. Here the plea in question was an answer of the most simple and elementary kind.-[DR. LUSHINGTON. Do you contend that the fee ought never to be allowed, or that it is a matter for the discretion of the Registrar to allow the fee or not, as he thinks fit?]-I contend that it ought never to be allowed.-[DR. LUSHINGTON. I will put you the case, which happens to be now before the Court, of a plea alleging certain facts, and then an inference from them that the judgment of a Court was obtained by fraud. Supposing that plea had been admitted at once by the proctor without consulting counsel?]-I should say that the proctor would thereby show an unfortunate ignorance of his profession; but the fee for counsel's advice, I submit, is not to be allowed, but ought to be treated like other consultation fees. The Admiralty Advocate, in reply, stated that a similar fee was allowed in the Courts of Chancery. DR. LUSHINGTON.-The inclination of my mind is, that the fee ought to be allowed; but as the Registrar and Assistant Registrar have intimated to me that they are of a different opinion, I shall take time to consider my judgment. On the 3rd of June, DR. LUSHINGTON gave judgment. In this case an objection has been raised to a disallowance by (a) Rule 3. "The practice of the Court in operation before the 1st day of January, 1860, shall continue in force, save in so far as it may be inconsistent 1862. June 3. Judgment. 1862. June 3. Fee and costs allowed. the Assistant Registrar of a fee to counsel for advising as to the admissibility of a plea, and of certain costs attending such fee. I have considered this question with some care, and it is not without its difficulties. According to the ancient practice, which prevailed when I entered the profession, every plea in a suit, whether in the Admiralty Court or elsewhere, was always laid before counsel, to advise whether it was opposable or not; and certainly according to the ancient practice, such a fee was most proper to be allowed, for it was most important, considering the detailed manner in which those pleas were drawn, that counsel should advise whether they were sufficient in point of law, and whether everything as a matter of fact was correctly laid. It is true that now the mode of pleading has undergone very considerable alteration; but it is questionable whether the change has gone to so great an extent as would require the Court, in justice to the parties, and for the sake of saving expense, to put an end to those fees, and to that security which the proctor had, when every adverse plea was laid before counsel and his advice taken. With regard to the past, I am of opinion that, looking to the practice of the Court as it existed in former times, the proctor was justified in what he did: I shall therefore alter the taxation, and allow him the costs of laying the plea before counsel, the fee to the counsel, and the other incidental expenses; but as to what is to be done in future, I confess I have not yet come to any satisfactory determination. It may be perfectly true that in the great majority of cases a judgment may be easily formed as to whether a petition, answer or reply is opposable or not; but it is also equally true that in other cases it is of the last importance that an adequate judgment should be formed as to whether the plea should be in first instance admitted or opposed. I have difficulty in drawing a line so as to allow the fee where it is expedient, and disallow it where it is unnecessary. I have not been able to arrive at any clear conclusion on this matter at the present moment, and therefore I must content myself with saying that with regard to the proctor's present application, it is granted, and he is intitled to the fee and the expenses. Toller and Son, proctors for the plaintiffs. Stokes for the defendants. THE LADY EGIDIA. Salvage arising out of Towage. A ship was being towed by a steam-tug to be docked at high water, when, to make SAL ALVAGE. This was a cause of salvage instituted on behalf of the owners and crew of the steam-tug Speedwell against the ship Lady Egidia, freight and cargo, for services rendered in the Mersey on the 10th of October, 1861, under the following circumstances: The Lady Egidia was being towed by a tug called the Lion, to be docked at high water in the Albert Dock. To secure docking in time it became desirable to employ another tug, and a signal having been made accordingly, the Speedwell was engaged to assist the Lion in towing the Lady Egidia to the pier for the sum of 51. The Speedwell came to the ship and made fast on the starboard side. Almost immediately afterwards, but (as proved) without any default of the Speedwell, the ship took the Pluckington Bank. The tugs turned back full speed, and in a few minutes the ship came off the bank without sustaining any injury, and was immediately docked at or shortly before high water. The 10th article of the petition alleged, "The Pluckington Bank is a very dangerous bank, and if the Lady Egidia had continued fast thereon for a few minutes longer she must have been left on the bank, and at low water she would have been high and dry; and as the tides were falling and would not again attain the same height until the 16th of October, the chance of getting her off would have been very much reduced, and her danger greatly increased thereby." The answer alleged, that after the ship grounded the tide rose a foot, and that the ship would have come off without the assistance of the Speedwell; and further pleaded, that "all the services rendered 1862. July 7. 1862. July 7. Judgment. by the Speedwell to the Lady Egidia were within the Speedwell's said contract to tow the Lady Egidia." The cause was heard on vivâ voce evidence, and the Court was assisted by Captain Bax and Captain Bayly. Milward and Lushington, for the plaintiffs. Brett, Q.C., and Clarkson, for the defendants. DR. LUSHINGTON having summed up to the Trinity Masters, and received their advice, gave judgment: : Looking to all the circumstances of this case, we are of opinion that the Lady Egidia was not in any immediate danger; and that the service performed by the Speedwell was within the scope of the agreement, which was an ordinary agreement to tow from place to place. To use the language of the Privy Council in the case of the Minnehaha (a), the Speedwell did not "incur any risk, or perform any duty, which was not within the scope of her original engagement," and she is therefore not intitled to salvage reward. I pronounce against the claim, with costs. Pritchard and Son, proctors for the plaintiffs. French for the defendants. (a) Ante, p. 347. In the Privy Council. Present-Lord KINGSDOWN. Lord CHELMSFORD. Sir JOHN TAYLOR COLERidge. THE EDWARD HAWKINS. Salvage-Ineffectual Efforts. A steam-ship, employed under an agreement to tow to a specified place another vessel which was partially disabled, towed for eleven hours, and was then obliged by a gale of wind to quit the vessel in a position of imminent peril. The vessel was subsequently saved by her own resources, and it was not proved that the towing had contributed to her safety:-Held, that no salvage was earned. THIS HIS was an appeal from a decree of the High Court of Admiralty in a cause of salvage, instituted by the General Steam Navigation Company, the owners, and by the master and crew of the steamship City of Hamburg, against the steamship Edward Hawkins. The circumstances of the alleged salvage service were as follows: : On the 17th of May, 1860, the Edward Hawkins, a steamer of 798 tons, left Cronstadt for London, with a cargo of tallow and general merchandize. In the course of the voyage all three blades of her propeller broke and were lost; the last blade being lost on the 26th of May. The vessel then proceeded under canvass, using also the broken blades to assist. On the evening of the 27th of May, she was overtaken by the City of Hamburg, a steamer of 332 tons, bound with passengers and a general cargo for London. Some negotiation then took place between the two captains, and in result the City of Hamburg took the Edward Hawkins in tow. The salvors afterwards alleged that the agreement was to tow to the Mouse, the remuneration to be settled on shore; the evidence on the other side was, that the agreement was to tow to Gravesend for the sum of 3001. The Edward Hawkins at the time of being taken in tow was, according to the salvors' statement, about twenty-five miles to the north-west of the Haaks Sand, on the coast of Holland. 1862. July 10. |