very clearly of opinion that there is no adequate proof of any such engagement having been entered into. Then the question arises, whether it was the duty of the salvors to take the vessel to the Texel, or whether they have discharged all which the law could require of them in carrying her to Lowestoft ?

to show adequate skill in performing the service they have undertaken.

I entirely agree in all that has been cited by Dr. Bayford Salvors bound from the case of the "Duke of Manchester" (a), that wherever salvors undertake to perform a service, it is their duty to show adequate skill in performing it, so as to bring it to the best termination; but that case appears to me to be as little applicable to the present as can well be conceived. The "Duke of Manchester" was taken in tow by the steamer "Copeland," which might, with ordinary care, have prevented her getting upon Sandwich Flats. My judgment was affirmed by the Privy Council (6), and to the principle contained in it I am anxious to adhere; but I must not extend that principle to the present case, which appears to differ from it so essentially. How does the case stand? It is agreed that the Texel was a lee shore, but, on the other hand, the wind was favourable to conduct the "Houthandel" to it. It depends upon a variety of circumstances, upon which I am not competent to form an opinion, as to whether the vessel could have been carried to the Texel or not. When the case was first brought to my notice, this very point suggested itself to me, and I thought it right to mention it at the time, but neither party applied for the attendance of Trinity masters. (c) The general rule on which I act is, that if both

(a) 4 Notes of Cases, 575. (b) Shersby v. Hibbert, 5 Notes of Cases, 470.

(c) The practice of the Court of Admiralty in obtaining the skilled assistance in court of the Trinity masters, and out of court of the registrar and merchants, has such peculiar advantages, that it is worth considering the principle upon which the Court proceeds. It is stated by Dr. Lushington, in the "Alfred," 7 Notes of Ca. 354.: "With regard to the principle upon which the Court must proceed, I cannot quite accede to the arguments of counsel in support of the report. I apprehend that, however incompetent I may be to discharge the duty devolving on me, yet it is a part of my duty, of which I am not entitled to divest myself, to form my own opinion upon the evidence laid before me, as to whether the items objected to have or have not been properly disallowed. I do not think that the instance

which has been put, namely, the
case where the Court is assisted by
Trinity masters, is either correct in
point of fact or apposite to the
question; because I never yet pro-
nounced a single decree, when I was
assisted by Trinity masters, in which
I was not perfectly convinced that
the advice they gave me was correct;
and if I had entertained a contrary
opinion, notwithstanding all their
nautical skill and experience, I am
clearly of opinion, having deliberated
much on that question, that it would
be my duty to pronounce such con-
trary opinion. The custom of the
Court, in asking the opinion of the
Trinity masters, is to request them
to state their reasons and their ex-
planations, and if these explanations
are not satisfactory to the Court it
does not take them; and the Court
never allows persons, perhaps inex-
perienced in the administration of
justice, to raise inferences from a
supposed state of facts which does

Rule respecting the attendance of Trinity

masters.

1853. THE

DEL."

Judgment.

parties ask for Trinity masters, I accede to the proposition; where one party only asks for them I read the papers and exer"HOUTHAN- cise my own judgment as to whether they shall attend; but where neither party prays them, I rarely direct them to be called in. So it is in the present case, which I must now decide to the best of my own unaided judgment. Now, it has been alleged that the salvors ought to show that they have conducted themselves according the safest mode of navigation; but I am of opinion, that as they brought the vessel in safety to Lowestoft, and the objection is that they ought to have gone to another port, it lies on those who raise the objection to prove by adequate testimony, to the satisfaction of the Court, that it is right. Primâ lies on the ob- facie, I am bound to believe on the credit of these persons, jectors to prove skilled as they are in navigation, that Lowestoft was as safe a port as the vessel could be conducted to.

Primâ facie, it is sufficient for salvors to

show they have brought the vessel to a

place of safety.

Then the onus

that the salvors

were unskilful. Semble, that

salvors are not

bound to go out of their way to any port which

the parties as

sisted may

name.

But there is another question behind. I am by no means clear that, had it been possible for the salvors to carry this vessel to the Texel, and that they had sufficient knowledge of the sands, they were bound to go out of their way to do it. I think I must dismiss that question altogether.

There is another point in the case to which I will advert, and that is, the alleged charge that the crew had been induced, by the representations of the salvors, to leave this vessel. It is almost impossible, amidst the contradictory evidence which appears in this case, to be able to say with confidence where the balance lies, and I must take the fact alone. I do not mean to say that the masters of the smacks conspired with their crews to induce the master and crew of the "Houthandel ” to abandon the vessel; but it sometimes does happen that salvors are rather prone to induce a master and crew to leave a vessel, because it looks better, when they come into Court, to have a case where the master and crew have despaired so much of saving their ship that they have quitted it, while others saved it. I see nothing on the present occasion to justify the crew in having so done, but I am not satisfied that there was any conspiracy to induce

not appear in the cause. It fortu-
nately has happened that, in but very
few instances, has there been a differ-
ence of opinion between myself and
the Trinity masters, and in no case
whatever have I pronounced any
judgment except it was my own.

Upon the present occasion the
Court undoubtedly is disposed, in
the first instance, to receive the re-
port of the registrar and merchants
with the strongest desire to believe
that it is one correctly made, be-

cause the Court has from experience well known the pains, fand labour, and judgment bestowed on these reports, which are very seldom objected to, and which I believe have given the greatest satisfaction to the public at large. But when a case is brought before me, and I have the evidence before me, if my judgment should differ from that of the registrar and merchants, I have no other alternative than to follow the dictates of my own mind."

them to do it. In my final judgment, I shall not rely on the abandonment as an ingredient in the case, proving that there was greater danger and risk than has been allowed on the part of the owners.

1853.

THE

"HOUTHAN

DEL." Judgment.

During a sal

the salvors

have a right to an adequate

maintenance from the ship's

stores.

I must also refer to the charge which has been preferred of pilfering, of destroying the stores, consuming and making away vage service, with them. Such a charge as this must always be most distinctly proved. Where salvors are on board a vessel for the purpose of rendering her assistance, nobody can doubt that they are entitled to consume all that is necessary of the stores for the purpose of maintaining themselves in the discharge of that duty; and really, if there be some waste under circumstances of this kind, it is impossible for the Court to look into minutiæ or to rely upon it. When such a charge is set up by owners, by way of defence to a demand for salvage, it must be recollected that those who bring it have a great interest in supporting it. It appears to me that the charge is in no degree substantiated.

All that remains for the Court to do is to allot that sum of money which it thinks right and fit to give to the salvors. The whole value of the property is but 7001. For some reason, I cannot tell why, the action has been entered for no less than 600Z.; and, what is worse, bail has been taken for that sum. The salvors could by no possibility have conceived that they would

be entitled to that amount under any circumstances. With re- Compensation gard to the damage done to the hawser, and the loss of the ice, for loss of ice. I mean to take that into consideration in the sum which I shall

allot, which is 120%.

Proctor for the salvors, Jenner; for the owner, Deacon.

BROWNE AND THOMAS v. THOMAS.

THIS
was a business of proving, in solemn form of law, the
last will of George Thomas, late of Old Broad Street, in the
city of London, and of Woodside Lodge, Upper Norwood,
deceased, bearing date 14th June, 1852, promoted by John
Browne and Elizabeth Thomas, widow, the relict of the deceased,
the executors named in the said will, against Henry Thomas,
the brother and next of kin.

In the will the testator did not describe Elizabeth Thomas as his wife; but he gave her a legacy in these words: "I hereby give and bequeath to Elizabeth Thomas, of Woodside Lodge,

PREROGATIVE

COURT OF CANTERBURY.

June 4.

Revocation of will by subseriage.-Held, a party may plead the marriage generally, in

quent mar

the answers of

order to obtain

the other party as to the fact.

Statement.

1853.

BROWNE AND
THOMAS
v.

THOMAS.

Statement.

Allegation.

Argument.

Judgment.

Weston Hill, Upper Norwood, all the furniture, plate, linen, jewellery, musical instruments, wine and spirits, belonging to me, now in the house we occupy (namely, Woodside Lodge, aforesaid), or may be in the house we are residing in at the time of my decease" and further bequeathed her two-thirds of the residue, and nominated her executrix.

The will was propounded by the executors in an allegation, merely pleading the due execution of the will, and the appointment of John Browne and Elizabeth Thomas his wife, executors.

A responsive allegation was then brought in on behalf of Henry Thomas, the brother, pleading as follows:

First Article. That George Thomas the deceased, in this cause, at the time of the execution of the will propounded in this cause, to wit, on the 14th June, 1852, was single and unmarried.

Second Article. That on a day subsequently to the said 14th day of June, 1852, but the time more particularly the party proponent is unable to set forth, the said deceased duly and legally intermarried with Elizabeth Thomas, nominated and appointed an executrix in the said will, and one of the parties in this suit, whose maiden name the party proponent is unable to set forth.

Dr. Haggard and Dr. Twiss now opposed the admission of this allegation. It was desirable to take the opinion of the Court upon the proper mode of pleading revocation by marriage under the 18th section of the Wills Act, as this appeared to be the first case of the kind. The present allegation is far too general. The party should have made some investigations before opposing a will. He raises a point of law that this will is revoked by a subsequent marriage, and yet pleads no particulars of such marriage, not even its time or place, or the name of the lady. In fact it is nothing more than a "fishing” allegation to obtain the answers of Mrs. Thomas as to the fact of marriage. Parties who rely on a fact of marriage to revoke a will, ought to be prepared to plead and prove some particulars respecting it. This allegation is merely a mode of asking

a question, not pleading a fact.

Dr. Jenner, in support of the allegation, was not heard.

SIR JOHN DODSON. I have no hesitation in admitting this allegation. It has been objected that the sole object of the party is to obtain the answers of Mrs. Thomas. But I apprehend parties have always a right to get an answer upon oath. There is nothing in this case to form an exception.

On behalf of the

THOMAS

v.

THOMAS.

Judgment.

Two executors were appointed in the will propounded in this 1853. cause, one of whom is Elizabeth Thomas. A condidit has been BROWNE AND given in on behalf of these two executors. brother of the deceased an allegation is brought in pleading that, subsequent to the date of the will propounded, the deceased intermarried with Elizabeth Thomas, the executrix. It does not deny the execution of the will, but pleads that it has been revoked and nullified by a particular fact. That fact is peculiarly within the knowledge of the executrix; for she must know whether or not she was married to the deceased since the 14th of June, 1852; and I am clearly of opinion that the party is entitled to her answers upon that point, and therefore admit the allegation.

Proctors for the executors, J. K. and G. Burchett; for the brother, Glennie.

"THE PANTHER."

THIS was a suit for damage, by plea and proofs, promoted by the "New Union," a schooner of 162 tons burthen, against the "Panther," a steamship of 292 tons, belonging to the General Steam Navigation Company. The schooner was bound from London to Beesheer, in the Persian Gulf, with a general cargo of merchandise; the steamer was bound from Ostend to London with a general cargo, and about twenty passengers. The loss sustained by the schooner was estimated at about 18,000Z.. The libel on behalf of the schooner pleaded in substance, that, about six o'clock A. M. of the 18th of December last, she was in midchannel, and about a mile above the Nore light, on the larboard tack, heading E. S. E. with the wind from N. by E. and the morning clear; that while the crew were setting the reefed mainsail, the pilot, who was on the port bow, and the master, who was at the wheel, observed the two paddle-box lights of the steamer, distant about a mile, a little on the starboard bow, and rapidly approaching; that by order of the pilot the helm of the schooner was immediately put hard-a-port, and was so kept until after the collision; that she thereupon fell off several points; that the pilot loudly hailed the steamer to port her helm, but no notice thereof was taken by those on board; that shortly afterwards the steamer, without altering her course, ran stem on with full speed into the schooner, cutting her down below the water's edge, &c.; that the pilot, master, and crew thereupon got on board the steamer; that within a minute or two after the

HIGH COURT

OF ADMIRALTY.

May 25. A vessel is not barred of her remedy in a case of collision, by the mere fact of

her having neglected to show a light according to the orders of

the commissioners, unless it appears that neglect in some degree conaccident.

tributed to the

Pleadings.