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1854.

THE

before the Court of Appeal in several cases, and with a similar result." No distinction was made between the flag being adopted prior to the commencement of hostilities, and when "INDUSTRIE." there was no reason to suppose that hostilities would have taken place, and the flag being adopted flagrante bello. By these authorities I must hold myself concluded.

Judgment. The period of

the adoption

of the flag and pass, whether

before or

break of hostilities, makes

after the out

no difference. No circum

If there be an exception on the present occasion it must be shown to be in circumstances which have not been brought to my attention, but which will take it out of the principle. When the vessel is sailing under a neutral flag, the captors may show that all the property is not neutral, but part of it belongs to an enemy, and in that case you divide it, and condemn the part which is hostile, and not the part which is neutral; but the proposition is not true vice versâ, that where a vessel is sailing under a hostile flag, you can claim, on behalf of a neutral, the a ship under a property under an enemy's flag.

From the cases cited from Sir Leoline Jenkyns and Sir James
Marriott, I cannot draw deductions contrary to the principles
What would become of belligerent

to which I have adverted.
rights, if, when you search vessels under hostile colours, you
are to be told, "This is not a Russian vessel; it is neutral, or
nine tenths is neutral. You are quite mistaken; it is entitled
to restitution at the hands of the Court." It is manifest
that the right of search, under these circumstances, would be
destroyed. It is clear that the whole trade of an enemy might
be carried on with perfect impunity, and all the naval force of
France and Great Britain would never be able to carry into
execution those rights which they are undoubtedly justified in
exercising by the law of nations. I entertain no doubt in this
case, and I condemn the vessel.

stance in the present case exempts it from the general principle. In the case of

neutral flag, captors may

prove that all

the property is not neutral, but that part enemy; but belongs to the the converse of the proposition is not

true.

No case cited justifies a deduction contrary to the

general prin

ciple.

If

the principle were not maintained, the right of

search would

Proctors for the captors, The Queen's Proctor; for the be destroyed. claimant, F. Clarkson.

The vessel must be condemned.

"THE POLKA."

THE commanders of her Majesty's ships "Amphion" and "Conflict" having received information that a number of Russian merchant-vessels were lying in the port of Libau, anchored within gunshot of the town on the 17th of May last, summoned the governor to surrender the said vessels within three hours. At half-past three p. m. of the same day an answer was received from the authorities, to the effect that they were without the means of defence, and would readily send the vessels out but could not possibly do it within the time specified.

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1854.

THE "POLKA."

Judgment.

Whereupon the captains of the "Amphion" and "Conflict” caused the ships' boats to be manned and armed, and they proceeded with them to the port. Having had the Russian vessels -seven schooners and one brigantine-pointed out, they took possession of them, brought them out into the roads, and finding them not to be in a condition to perform a voyage to England, afterwards took them to the port of Memel, where they remained to await the decision of the Court.

At the time of their capture the vessels were found all dismantled, their sails unbent, and some of them aground. Two of them were scuttled, the whole of them deserted by their crews, and no papers whatever were found on board, neither could the captors obtain any information whatever respecting them, but believed they had been taken away by the masters when they deserted the vessels.

The above circumstances were fully verified by affidavits, and

The Queen's Advocate moved the Court to condemn the vessels and decree their sale in the port of Memel, stating that an intimation had been received from the Prussian Government, that no objection would be made to such a course, provided they were sold by private contract, without being advertised or put up to auction.

DR. LUSHINGTON. The circumstances under which the present application is made, are quite peculiar, and form an exception to the general principle upon which this Court proceeds. Though there is no direct evidence that the vessels are Russian, yet there is no claim, and the Court entertains no doubt upon the subject. I have no hesitation in condemning them; and, looking at the fact deposed to, that they are not in a fit state to be brought to England, and the consent of the Prussian Government to their sale at Memel, the Court will allow that course in the present case, but with the proviso that the wishes of the Prussian Government shall be fully observed with respect to the sale.

I wish it, moreover, to be expressly understood, that this case is decided upon its own peculiar circumstances, and is not to be considered as a precedent for the condemnation of a prize while lying in a neutral port. The rule is that the prize shall be brought into a port belonging to the captors' country, and the Court must guard itself against allowing a precedent to the contrary to be established.

Proctor: The Queen's Proctor.

INDEX

ΤΟ

PRINCIPAL MATTERS.

ACCOUNT.

See Inventory and Account. See Practice, 3.

ACKNOWLEDGMENT.

Of Signature instead of signing. See Attestation.

ADMINISTRATION.

1. Construction of an executory clause by the
Dutch law adopted. In the Goods of the Right
Honourable Hendrick Jacob, Baron Van Drom,
deceused (Prerog.), 245.

2. By the law of Scotland a widow is not entitled
to any share of the property of her husband, or
to letters of administration, unless at the time of
his death she has been married to him one year
and a day. Following a decree of the Com-
missary Court of Perthshire, the Court granted
letters of administration to the sister of the de-
ceased in preference to the widow. In the Goods
of Thomas Shoolbraid, deceased (Prerog.), 246.

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ALTERATIONS AND INTERLINEA-
TIONS.

1. Alterations in a will or codicil, bearing date in
January 1837, presumed to have been made
prior to January 1. 1838. In the Goods of
William Simkin, deceased (Prerog.), 1.

2. Interlineations were made in a will by the
testator after execution. He sent for the wit-
nesses, pointed out the alterations, declared he
republished his will, and then acknowledged his
original signature, but did not re-sign. The wit-
nesses placed their initials opposite to the alter-
ations, and also signed a memorandum at the
foot of the will. - Held, a sufficient execution of
the interlineations. In the Goods of Thomas
Dewell, deceased (Prerog.), 103.

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ASSESSORS.

Appointed to assist in Reconsideration of Report of Registrar and Merchants. See Collision, 2.

ATTESTATION.'

W. B. wrote his will, signed it in the presence of C. B., who then subscribed. On a subsequent day W. B. acknowledged his signature in the presence of C. B. and H. C., and C. B. having also acknowledged her signature without resubscribing, H. C. subscribed his name. Will invalid, because C. B. did not sign again instead of acknowledging her signature. In the Goods of William Bennett, deceased (Prerog.), 247.

BAIL.

Liability of Owners limited to Amount of. See Bottomry Bond, 2.

Proctor not justified in requiring excessive Bail. See Salvage, 9.

BANNS.

Undue Publication of. See Nullity of Marriage, 3.

BONA NOTABILIA.

The paraphernalia of a wife living separate from her husband, and in a different jurisdiction, do not constitute bona notabilia. Ekins v. Brown (Prerog.), 400.

It may be quite true that during the lifetime of the husband the wife's paraphernalia are entirely subject to the control of the husband, but at his death they survive to the use of the wife, and remain in her possession. Ib.

Though paraphernalia may be subject to the husband's debts, yet the wife has a right to retain them until a deficiency of assets compels the executors to claim them. Ib.

On the death of a partner, his share of the partnership property in possession, however large, does not constitute bona notabilia if the estate be insolvent, and there be no balance after the liquidation of all partnership claims. Ib.

BOND.

See Bottomry Bond.

E. L. died intestate, leaving C. L., her husband, surviving. He became bankrupt (A. B., and C. being appointed his assignees), and then died without having administered to his wife. Some property subsequently accrued to his wife. J. L. then administered to his brother, C. L., and also to E. L., and having converted the property to his own use instead of paying it over to his brother's assignees, himself became insolvent. On application of the assignees, the sureties to the bond were cited to show cause contrà, and the Court allowed the bond to be delivered out. Drewe v. Long (Prerog.), 391.

BOTTOMRY BOND.

1. A bottomry bond having been given, it is allowable to pay that and to include the amount in a fresh bond during the same voyage, but not in a subsequent one. The Toivo" (Court of Adm.),

18.5.

2. A bottomry bondholder entered an action against the ship, cargo, and freight. The owners of the cargo appeared, and gave bail in the sum of 350. The proceedings were in panam. The bond was pronounced for, the ship sold, the proceeds of sale and the freight were brought into the registry. The claims for wages, which proved unexpectedly heavy, having been settled, the deficiency on the ship's account for the bond and proctor's costs amounted to 409l. 98. 2d., which the owners of the cargo were called upon to pay. They tendered 350l., the amount of their bail. Motion for a monition against the owners of the cargo to pay the balance rejected. Held, that though the master may become ex necessitate agent of the owners of the cargo, he can render them liable only to the value of the cargo; that any liability beyond that can arise only from the conduct of such owners in contesting the validity of the bond; that they cannot be liable to costs not occasioned by their conduct; that the amount of their bail is the limit of their liability, as regards the bond; that the bail might have been taken to the full value of the cargo; and that its not having been so taken was the act of the bondholder himself, who must abide by the consequence. Nostra Senora Del Carmine (Court of Adm.), 303.

If the owner of the cargo contest the validity of the bond, and fail, he becomes personally liable to costs, without regard to the value of the cargo. Ib.

BRAWLING.

A churchwarden proceeded against for brawling and laying violent hands upon a person in the church, under the General Ecclesiastical Law, and not under the Statute. An affirmative issue being given, he was monished to abstain for the future, and was condemned in costs. The Office of the Judge promoted by Burder v. Selmes (Arches),

114.

CAPTORS.

Consent of, necessary to Restoration. See Prize of War, 3.

CHURCHWARDEN.

See Brawling.

Election of churchwarden. After a show of hands a poll was demanded, which by mutual agree ment was commenced immediately. The chair. man agreed with one of the candidates that the poll should close at seven o'clock, which was accordingly done, and thereby some qualified electors were prevented from recording their votes. Election void. Westerton v. Davidson (Archd. C. of Mid.), 385.

CITATION.

See Probate, 2.

COLLISION.

See Pleading, 1.

1. A vessel is not barred of her remedy in a case of collision, by the mere fact of her having ne

glected to show a light according to the orders of the Commissioners, unless it appear that neglect in some degree contributed to the accident. The "Panther" (Court of Adm.), 31.

In a river or narrow channel, a steamer must keep, as far as is practicable, to that side of the mid-channel which lies on the starboard side.

Ib.

2. Assessors appointed to assist the registrar and merchants in the reconsideration of their report, the Judge himself being also present in the registry. The "Sir George Seymour" (Court of Adm.), 67.

3. A collier brig out at sea in foggy weather, descrying a steamer at a distance, as she stated, of three or four cables' length, held to blame for not having given notice by blowing a fog-horn. The "Carron" (Court of Adm.), 91.

The onus probandi may shift from one party to the other in the cause. Ib.

4. Neither of two sailing vessels, which came into collision, having observed the Admiralty regulations respecting lights, and neither having pleaded that the collision was occasioned by such non-observance on the part of the other, the Court, nevertheless, Held, that under the circumstances of the case, both vessels were barred of recovery by 14 & 15 Vict. c. 79. s. 28. The "Aliwal" (Court of Adm.), 96.

The Court is bound to take notice of the statute 14 & 15 Vict. c. 79., and of the Admiralty Rules made by virtue thereof, though not put in plea, nor touched upon in argument. Ib.

5. A claim by the owners of a damaged vessel for loss sustained, estimated moderately to avoid litigation, having been rejected, and the matter afterwards referred to the Registrar and merchants, the owners are not bound by their original estimate, nor barred of their right to prove an actual loss greater than that estimate. The "Two Sisters" (Court of Adm.), 99.

6. A vessel dragging her anchor, and coming into collision with another, Held to blame for not letting go another anchor. Held, also, that this was the fault of the pilot alone, and that the owners were therefore not liable. No costs. The "Northampton" (Court of Adm.), 152.

If a ship lying at anchor from the strength of the tide, drifted with her anchor, that would be driving. If the wind drove her across the tide, and she fairly dragged her anchors, that would be dragging. Ib.

There should be that space left for the swinging to the anchor, that in ordinary circumstances, the two vessels cannot come together. If that space be not left, it is a foul berth. Ib.

7. A vessel, with the wind free, meeting another close hauled on the larboard tack, having ported her helm and come into collision: Held, to blame; the Elder Brethren being of opinion that the captain gave the order heedlessly, and without looking at the position of the other vessel. The "Sea Park" (Court of Adm.), 186.

8. In causes of collision, a verdict obtained at Common Law cannot be pleaded. The "Cla(Court of Adm.), 206.

rence

A steam-ship held solely to blame for not having given way to a sailing-vessel close hauled on the larboard tack, although porting the helm would not have thrown the sailing vessel out of command. Ib.

The evidence on which a verdict at law has

been founded may have been quite different from that produced in the Admiralty Court: it would then be detrimental to justice to attribute any weight to it. Ib.

The practice in the Prerogative and Consistory Courts forms no guide for the practice in the Court of Admiralty. Ib.

In divorce suits the verdict at law, at least, shows that the husband is not afraid to subject his own conduct to a strict examination, and his witnesses to a vivâ voce cross-examination. Ib.

In the statute 14 & 15 Vict. c. 79. s. 27., what is meant by the proviso, "and as regards sailing vessels, to the keeping of each vessel under command," is, that if a vessel be close hauled, and at the same time there is a vessel going free, the vessel close hauled is not to throw herself into stays, because she would be no longer under command. Ib.

9. A steam-ship proceeding down the Thames at night, meeting a sailing barge, close hauled on the starboard tack, nearly in mid-channel, in Bugsby's Reach, stopped her engines and ported her helm; but Held to blame for not having reversed. Held, also, that the barge was not bound to go about, The "Trident" (Court of Adm.),

217.

10. Two vessels, the one A. close hauled on the port tack, the other B. on the starboard tack, sailing free, meet each other under circumstances of probable collision; A. luffed twice. Held, that she was to blame for not having ported, that the collision was principally occasioned by her non-obedience to the rule, and that by the statute she would not recover. B. also luffed up three times: Held, to blame for not having ported in time. Neither vessel can recover. Wansfell" (Court of Adm.), 269.

66

The

11. A vessel is not relieved of her obligation to make way for another close hauled on the starboard tack by reason of her crew being engaged in reefing her topsails. The "Blenheim" (Court of Adm.), 285.

A vessel to which the blame of a collision is attributed is liable not only for the immediate damage, but for the consequential loss arising from the abandonment of the injured vessel by her crew, under reasonable apprehensions of danger. Ib.

The abandonment of the injured vessel by her crew is a question of law, and not a question for the consideration of the Trinity Masters.

Ib.

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13. A vessel lying at anchor in a roadstead exhibited a light in her mizen rigging instead of at her mast head.-Held, in the Admiralty Court, that under the circumstances the light would be as visible in that place, and that therefore the collision could not have been occasioned by the deviation from the literal requirements of the Admiralty order; but reversed on appeal to the Privy Council, which held that the light was not as visible—that the deviation from the Admiralty order occasioned the collision, and that therefore the vessel proceeding was barred of recovery, and must be condemned in the costs of both Courts. The Telegraph." Valentine v. Cleugh, (P. C.), 427.

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