C. A. 1903 SMITH v. BETTY. Stirling L.J. Wright J., the plaintiff seeking to have the taxing master's decision restored, while the defendant insists that it ought to be reversed as to the cash balance as well as the costs. The earliest entry in the bill of costs with respect to the action brought by the defendant against Rigby & Co. occurs on November 24, 1893. The writ was issued on January 29, 1894, and the action proceeded in regular course, and was duly entered for trial. On April 24, 1894, Messrs. Rigby & Co.'s solicitors informed Mr. Foster that they were instructed not to contest the matter any further, and proposed to issue a summons to stay further proceedings on payment of the amount claimed and costs. On April 25 Mr. Foster by letter informed the defendant of this proposal, and stated that it would be about a fortnight before the costs were taxed and the amount paid. On April 26 the defendant sent a telegram: "Delighted at the good news contained in your letter." It appeared from the bill of costs delivered by Mr. Foster that the debt of Rigby & Co. was paid on May 9, 1894. In a letter written by Mr. Foster to the defendant in 1895 he expressed an intention to send to the defendant an account; but in fact none was sent except that rendered with the bill of costs on December 2, 1899. Counsel for the plaintiff contended that the decision of the taxing master ought in these circumstances to be supported on the ground either of lien, or set-off, or appropriation of payments. It is quite clear that the Statute of Limitations only bars the remedy by action, and does not destroy the debt or affect any remedy by way of lien, whether on a judgment recovered by the exertions of the solicitor: Higgins v. Scott (1); or on papers in his hands: Curwen v. Milburn. (2) The lien of a solicitor on a fund recovered is confined to the costs of the action in which it is recovered: Bozon v. Bolland (3); the party and party costs of the defendant in the action were paid to Mr. Foster by Rigby & Co.; so that the lien on the debt due from them only extended to the excess of the costs of the action as between solicitor and client over those between party and party, an excess which is stated only to amount to about (1) 2 B. & Ad. 413; 36 R. R. 607. (3) (1839) 4 My. & Cr. 354; (2) (1889) 42 Ch. D. 424. 48 R. R. 121. 51., and is in any event unaffected by the judgment. No question as to a lien on papers arises. I am therefore unable to see that the solicitor had any right of lien which can avail the plaintiff in this action. C. A. 1903 SMITH v. BETTY. Neither in my judgment can the plaintiff claim any statutory Stirling L.J. right of set-off; for, as was laid down by Wilde C.J. in Francis v. Dodsworth (1), the judicial construction of the statute of set-off" has been that no debts can be used by way of set-off except such as are recoverable by action." Here the debt relied on by the plaintiff has in this very action been held not to be so recoverable; and to give effect to a set-off by the plaintiff would be to go behind the judgment. It was contended on behalf of the plaintiff that the solicitor was entitled to appropriate, and must be taken to have appropriated, the sum in question to the cash balance and costs found to have been due to him on May 9, 1894. To this it was answered on behalf of the defendant, first that in the circumstances no right of appropriation existed; and secondly that, even if it did exist, it had not been, and could not now be, exercised. On the first of these points much reliance was placed on Waller v. Lacy (2), where it was decided that a solicitor had no right to appropriate to a statute-barred debt a sum received by him on behalf of, but without the knowledge of, the client. In the present case the fair inference from the facts appears to be that the sum of 661. 3s. 8d. was received and retained by the solicitor with the knowledge of the client, and it may be, and I am willing to assume, that on this ground the authority cited does not apply. Still it is quite clear that, previously to the judgment in this action, no effective appropriation was in fact made. In the only account rendered to the defendant this particular item does not appear; and there is no room for the application of the doctrine of Clayton's Case (3): see The Mecca. (4) After judgment I do not think that it was any longer open to the plaintiff to make an appropriation; for the authorities, although the language used in them varies, appear to shew that there is some limit on the (1) (1847) 4 C. B. 202, at p. 220. (3) 1 Mer. 572, 585; 15 R. R. 161. 1903 SMITH v. BETTY. Stirling L.J. exercise by a creditor of an option to appropriate; as for example, the communication of the appropriation to the debtor: Simson v. Ingham (1); or the bringing of an action: Mills v. Fowkes (2); or, as is said by Taunton J. in Philpott v. Jones (3), before the case came under the consideration of a jury. In the present case the terms of the judgment seem to me to preclude a subsequent appropriation. For these reasons I think that the appeal of the defendant ought to succeed, and that the appeal of the plaintiff fails. Appeal allowed. Cross-appeal dismissed. Solicitor for plaintiff: Arthur Price. Solicitors for defendant: Underwood, Son & Piper. E. L. 1903 May 4, 12. THE BOARD OF TRADE v. THE SAILING SHIP "GLENPARK," LIMITED. Shipping-Seamen-Shipwreck -"Distressed Seamen" - Expenses of Maintenance, &c., Abroad-Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), ss. 190, 191, 193-Merchant Shipping (Mercantile Marine Fund) Act, 1898 (61 & 62 Vict. c. 44), s. 4. seaman 99 "distressed A seaman who is shipwrecked abroad from a British ship is a within the meaning of ss. 191, 193 of the Merchant Shipping Act, 1894, and s. 4 of the Merchant Shipping (Mercantile Marine Fund) Act, 1898, notwithstanding that he has in his possession money of his own which is more than sufficient to maintain him and provide him with a passage home. In proceedings by the Board of Trade to recover from a shipowner expenses incurred in the maintenance and relief of distressed seamen abroad, the production of the account of those expenses, and proof of payment of that account by or on behalf of the Board of Trade, are, by s. 193, sub-s. 3, of the Merchant Shipping Act, 1894, made conclusive evidence of their right to recover. COMMERCIAL CAUSE, tried before Bigham J. Action by the Board of Trade to recover from the defendants, (1) (1823) 2 B. & C. 65; 26 R. R. 273. (2) 5 Bing. N. C. 455; 50 R. R. 750. (3) 2 A. & E. 41; 41 R. R. 371. 1903 BOARD OF as owners of the sailing ship Glenpark, 991., being the balance of moneys paid by the plaintiffs in respect of the maintenance and relief of certain seamen alleged to have been "distressed seamen " within the meaning of the Merchant Shipping Act, SAILING SHIP 1894 (57 & 58 Vict. c. 60). (1) The following material facts appeared from an admitted statement of facts on which the action was tried : The Glenpark was a British ship within the meaning of the Merchant Shipping Act, 1894, and the defendants were at all material times the registered owners of her. On February 1, 1901, the Glenpark, whilst in the course of a three years' trading voyage, struck on a sunken rock near Wedge Island, in Spencer Gulf, South Australia, and became a total wreck. The crew lost the whole of their effects except the clothes they were wearing, but were saved, and taken in the ship's boats to Port Victoria, in South Australia, arriving there on February 2, 1901. (1) By s. 190 of the Merchant Shipping Act, 1894, the Board of Trade may make regulations "with respect to the relief, maintenance, and sending home of seamen and apprentices found in distress abroad." By s. 191, certain prescribed "authorities," including Governors of British possessions, shall, in accordance with and on the conditions prescribed by the regulations, provide for the maintenance and sending home of seamen and apprentices (in the Act included in the term "distressed seamen ") "who by reason of having been discharged or left behind abroad or shipwrecked from any British ship are in distress in any place abroad." By sub-s. 4, "the authority shall be paid in respect of the expenses of the maintenance and conveyance of distressed seamen such sums as the Board of Trade may allow, and those sums shall, on the production of the bills of disbursements, with the proper vouchers, be paid as hereinafter provided." By s. 193, as amended by s. 4 of the Merchant Shipping (Mer- 60 V. GLENPARK," 1903 BOARD OF TRADE v. “GLENPARK,” They were there maintained for two days by the Governor of South Australia, on behalf of the Crown acting by the Marine Board of South Australia (being one of the authorities referred SAILING SHIP, to in s. 191 of the Merchant Shipping Act, 1894), and were then LIMITED. sent from Port Victoria to Port Adelaide, where they arrived on February 4, 1901, and were maintained at Port Adelaide by the same authority. On February 6, 1901, the representatives of the owners of the Glenpark paid each member of the crew the balance of wages due to him up to the time the ship was lost. Some of the crew, having failed to obtain employment at Port Adelaide, were provided by the same authority with passages to the United Kingdom. The total amount expended by the authority was 236l. 5s. 1d., and the plaintiffs paid that sum to the authority as money due to them in respect of expenses incurred on account of distressed seamen within the meaning of s. 193 of the Merchant Shipping Act, 1894, and claimed to recover the whole of that sum from the defendants under that section and s. 4 of the Merchant Shipping, &c., Act, 1898. The plaintiffs furnished an account of the expenses in accordance with the Merchant Shipping Act, 1894, and the distressed seamen regulations, and produced that account at the trial of the action. The defendants, for the purposes of the present case, did not dispute liability as regarded expenses incurred in respect of any member of the crew whose wages up to the time the ship was lost were less than the amount expended by the authority upon his maintenance and conveyance, but disputed liability as to eleven members of the crew, the wages paid to whom were in each case more than the expenses so incurred. The expenses incurred in respect of those eleven members amounted to 991., the sum claimed in the action. Sir Robert Finlay, A.-G., and Sir Edward Carson, S.-G., (Henry Sutton with them), for the plaintiffs, contended that they were entitled to recover the sum claimed on the grounds : First, that, having regard to the general scheme and provisions of the Merchant Shipping Act, 1894, as amended by the Merchant Shipping (Mercantile Marine Fund) Act, 1898, those members of the crew of the Glenpark who had received at |