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H. OF L.]

DOOLAN v. THE MIDLAND RAILWAY COMPANY.

the contract with Jump and Co. was doubtless written on a lithographed form, being of an ordinary nature, well understood by merchants. The buyers were to pay cost, freight, and insurance, but they were not liable to pay anything until they received the shipping documents. The parties put down the whole price in the invoice, and made a deduction from the contract price to be computed as freight. The ordinary rate was 558. per ton at that time, and it was thought fair to keep back that sum till the ship arrived, that being the amount necessary to be paid before the buyers could receive the goods. The arrangement was a very intelligible one, and Jump and Co. stipulated that Morison should indorse on the bills of lading a notice that the respondents were entitled to the freight, and that their receipt was to be a discharge. How can it be said that this was a fresh contract? It does not purport to be a new bill of lading, but it only gives notice that the respondents are entitled to receive the freight. The mortgagee urges that this amount of freight was created by the original contract, and belongs to him, but I am of opinion that there is no such rule of law, and no proof of any such intention as was contended for.

Lord GORDON concurred.

Judgment appealed from affirmed, and appeal dismissed, with costs.

Solicitors for the appellants, Freshfields and Williams.

Solicitors for the respondents, Lowless and Co.

July 12, 13, 17, and 27.

(Before the LORD CHANCELLOR (Cairns), Lords O'HAGAN, BLACKBURN, and GORDON.) DOOLAN V. THE MIDLAND RAILWAY COMPANY. ON APPEAL FROM THE COURT OF EXCHEQUER CHAMBER IN IRELAND.

Railway company-Sea transit-Through booking -Exemption from liability-Reasonable condi tion-Railway and Canal Traffic Act 1854 (17 & 18 Vict. c. 31), s. 7-Regulation of Railways Act 1868 (31 & 32 Vict. c. 119), s. 16-Regulation of Railways Act 1871 (34 & 35 Vict. c. 78), 8. 12.

Sect. 16 of the Regulation of Railways Act 1868 extends the provisions of the Railway and Canal Traffic Act 1854 to all classes of steamship traffic.

Sect. 12 of the Regulation of Railways Act 1871 extends the provisions of the Act of 1868, s. 16, to railway companies carrying goods under a contract in steam vessels not belonging to the company.

The respondent company contracted with the appellant to carry cattle from Ireland to England. They had no steamships of their own, and they procured a steam packet company to carry the cattle on the sea passage. During the voyage they were lost by the negligence of the servants of the steam packet company. The contract was made subject to a condition that the respondents should not be "accountable or responsible for the loss of, or any damage or injury, to animals, goods, or property entrusted to them arising from the dangers or accidents of the sea, &c., improper, careless, or unskilful navigation, or any default or negligence

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of the master or any of the officers or crew of the company's vessels.”

Held (reversing the judgment of the court below), that the contract was governed by sect. 7 of the Railway and Canal Traffic Act of 1854, as extended by the later Acts, and that the condition was consequently void and the respondents liable for the loss.

Cohen v. S.E. Railway Co. (2 Ex. Div. 253; 36 L. T. Rep. N. S. 130) approved.

THIS was an appeal from a judgment of the Court of Exchequer Chamber in Ireland, which had reversed a judgment of the Court of Common Pleas in favour of the appellant, the plaintiff below.

The plaintiff was a cattle dealer in the county of Carlow, and he had entered into a contract with defendant company to carry sixty-three head of cattle from Dublin to St. Ives, in Huntingdonshire. The contract was a through contract, and made subject to the following condition in writing:

The company will not be accountable for any injury to horses, cattle, or other live stock, while shipping, during the sea passage, or landing, but will give free passage by sea to the owners or others sent to take charge of such animals on the passage. With respect to any animals, luggage, parcels, goods, or other articles booked through by them or their agents, partly by sea and partly by railway, or partly by canal and partly by sea, such animals, luggage, parcels, goods, or other articles will only be so conveyed on the condition that the company shall be exempt from liability for any loss or damage which may arise during the carriage of such animals, luggage, parcels, goods, or other articles by sea, from the act of God, the Queen's enemies, fire, accidents from machinery, boilers, and steam, and all other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, in the same manner as if the company had signed and delivered to the consignor a bill of lading containing such condition, nor will the company be accountable or responsible for loss of, or any damage or injury to, animals, goods, or property entrusted to them, arising from the dangers or accidents of the sea, or of steam navigation, the act of God, the Queen's enemies, jettison, barratry, collision, improper, careless, or unskilful navigation, accidents connected with machinery or boilers, or any default or negligence of the master, or any of the officers or crews of the company's vessels.

The defendant company did not own any steam vessels of their own, and the cattle were accordingly put on board the St. Columba, a vessel belonging to the City of Dublin Steam Packet Company, under a through booking arrangement. On the passage the ship was wrecked on the Skerries Rock, near Holyhead. The plaintiff then brought this action to recover the value of the cattle.

The case was tried before Palles, C.B., at the Kildare Summer Assizes in 1874, when the jury found that the loss was occasioned by the negligence of the crew of the St. Columba, and gave a verdict for the plaintiff for 7651. The defendants obtained a rule to enter a nonsuit or a verdict for them, on the ground that they were exempted from liability for negligence by the condition set out above; but upon argument the rule was discharged by the Court of Common Pleas, on the ground that the condition was rendered void by the Railway Regulation Acts.

The defendants appealed to the Court of Exchequer Chamber, where the decision of the Court of Common Pleas was reversed by Palles, C.B., Fitzgerald, Deasy, and Dowse, B B., and Fitzgerald and Barry, J J., Whiteside, CJ., dissenting. This appeal was then brought to the

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House of Lords.

Ir. Rep. 10 C.L. 47.

DOOLAN v. THE MIDLAND RAILWAY COMPANY.

The case is reported below in

Macdonough, Q.C. (of the Irish Bar), Benjamin, Q.C., and Fitzgerald appeared for the appellant.

Walker, Q.C. (of the Irish Bar), Watkin Williams, Q.C., and Robertson (of the Irish Bar) for the respondents.

The argument turned upon the construction of the sections of the Acts of 1854, 1868, and 1871.

The following cases were cited or referred to: Peek v. The North Staffordshire Railway Company, 10 H. of L. Cas. 473; 8 L. T. Rep. N. S. 768; Moore v. Midland Railway Company, Ir. Rep. 9 C. L. 20;

Cohen v. South-Eastern Railway Company, ante p.
248; L. Rep. 2 Ex. Div. 253; 36 L. T. Rep. N. S.
130;

Le Conteur v. London and South-Western Railway
Company, L. Rep. 1 Q. B. 54; 13 L. T. Rep.
N. S. 325;

The Normandy, 3 Mar. Law Cas. O. S. 519; L. Rep. 3
A. & E. 152; 23 L. T. Rep. N. S. 631;
The South Wales Railway Company v. Redmond,
10 C. B., N. S., 675; 4 L. T. Rep. N. S. 619;
Aldridge v. Great Western Railway Company, 15
C. B., N. S., 582;

Zunz v. South-Eastern Railway Company, L. Rep.
4 Q. B. 539; 20 L. T. Rep. N. S. 873;
Machu v. London and South-Western Railway Com-
pany, 2 Ex. 415.

At the conclusion of the arguments their Lordships took time to consider their judgment.

July 27.-Their Lordships gave judgment as follows:

Lord BLACKBURN.-My Lords,-The Midland Railway Company, the defendant in the court below, which is an ordinary railway company, having no special powers for building or working steam vessels, at an office which it has in Dublin, made a contract with the plaintiff to carry sixtythree head of cattle for him from Dublin to St. Ives for reward. The railway company procured the City of Dublin Steam Packet Company to carry the cattle for them in one of their steam vessels called the St. Columba. The jury found that the cattle were lost, not by any peril of the sea, but by the negligence of the crew of the St. Columba. Had this been all, the railway company would plainly have been answerable to the plaintiff. But the contract was in writing and signed by the plaintiff, and contained a condition that the Midland Railway Company were exempt from liability for any loss or damages which may arise during the carriage of such animals arising from the dangers or accidents of the sea, or of steam navigation, the act of God, the Queen's enemies, jettison, barratry, collision, improper, careless, or unskilful navigation, accidents connected with machinery or boilers, or any default or negligence of the master, or any of the officers or crews of the company's vessels. If, therefore, this condition is valid, it protects the company from liability for the loss which happened.

The contention on behalf of the plaintiff is that the 12th section of the Regulation of Railways Act 1871 (34 & 35 Vic. c. 78, s. 12) renders this condition void; the contention of the railway company is that the enactment has not that effect. This is the one issue wrapped up in the voluminous pleadings.

But the construction of this section is not a simple matter. It provides that, "Where a railway company under a contract for carrying persons,

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animals, or goods by sea procure the same to be carried in a vessel not belonging to the railway company, the railway company shall be answerable in damages in respect of loss of life, or personal injury, or in respect of loss or damage to animals or goods, in like manner and to the same amount as the railway company would be answerable if the vessel had belonged to the railway company; provided that such loss of life, or personal injury, or loss or damage to animals or goods, happens to the person, animals, or goods (as the case may be during the carriage of the same in such vessel; the proof to the contrary to lie upon the railway company." The Act is, by sect. 1, to be construed as one with the Regulation of Railways Act 1863 (31 & 32 Vict. c. 119), the 16th section of which extends the provisions of the Railway and Canal Traffic Act 1854 (17 & 18 Vict. c. 31) to steam vessels and the traffic carried on thereby; and it was settled by the decision of this House in Peek v. The North Staffordshire Railway Company (10 H. of L. Cas. 473; 8 L. T. Rep. N. S. 768) that a condition having the effect of exempting the carrier from responsibility for the negligence or fraud of his own servants is not just and reasonable within sect. 7 of the last-named statute. If, therefore, the Act of 1854 is applicable to the contract in the present case, the railway company cannot success. fully plead the special conditions under which it was entered into.

The first matter to be inquired into is, what is the true construction of the Railways Regulation Act 1868 (31 & 32 Vict. c. 119), sect. 16, which applies the Railway and Canal Traffic Act 1854 to the traffic carried on by railway companies on steam vessels which the railway companies themselves own or work. The Court of Common Pleas in Ireland in Moore v. Midland Railway Company (Ir. Rep. 9 C. L. 20), and the Court of Exchequer and the Court of Appeal in Eng. land in Cohen v. South-Eastern Railway Company (ante p. 248) have unanimously held that the whole of the Railway and Canal Traffic Act 1854 is extended to the whole of the traffic on such steamboats. The majority of the judges of the Irish Court of Appeal have in the present case held that the passenger traffic on the steamboats was alone meant, and consequently that only the portion of the Railway and Canal Traffic Act 1854 applicable to passengers is extended, thus excluding sect. 7. I cannot agree with them.

In the present case the Midland Railway Company did not own or work the steam vessel. They were not, therefore, brought within the provisions of the Railway Regulation Act 1868, sect. 16. They did, however, under a contract for carrying animals, procure them to be carried in a steam vessel not belonging to the railway company, and the question mainly argued at your Lordships' bar was whether the Railway Regulation Act 1871, sect. 12, was or was not to be construed as extending the provisions of the Railway Regulation Act 1865, sect. 16, applicable to railway companies under a contract carrying goods by sea in their own steam vessels, to railway companies under a similar contract procuring them to be carried in steam vessels not belonging to the railway company.

I will state briefly the effect of the various enactments on this subject. The decision of this House in Peek v. North Staffordshire Railway Company (ubi sup.) upon sect. 7 of the Railway and Canal Traffic Act 1854 only affected traffic which was

H. OF L.]

DOOLAN V. THE MIDLAND RAILWAY COMPANY.

conveyed exclusively by railway. At that time it was ultra vires for railway companies to use and work steam vessels; but in 1863 provision was for the first time made for cases where railway companies were authorised by any future enactment incorporating that Act to buy, hire, or use, or to enter into arrangements for the buying, hiring, or using of steam vessels. Sects. 30 to 35 of the Railway Clauses Act 1863 (26 & 27 Vict. c. 92) refer to this subject, and sect. 31 expressly extends the provisions of the Act of 1854" to steam vessels and to the traffic carried thereby." Sect. 16 of the Act of 1868 concludes with precisely the same provisions, the earlier part of the section containing the following words: "Where a company is authorised to build, or buy, or hire, and to use, maintain, and work, or to enter into arrangements for using, maintaining, or working steam vessels for the purpose of carrying on a communication between any towns or ports, and to take tolls in respect of such steam vessels, then and in every such case tolls shall be at all times charged to all persons equally and after the same rate in respect of passengers conveyed in a like vessel, passing between the same places, under like circumstances; and no reduction or advance in the tolls shall be made in favour of or against any person using the steam vessels in consequence of his having travelled, or being about to travel, on the whole or any part of the company's railway, or not, having travelled, or not being about to travel, on any part thereof, or in favour of or against any person using the railway, in consequence of his having used or being about to use, or his not having used or not being about to use, the steam vessels; and where an aggregate sum is charged by the company for conveyance of a passenger by a steam vessel and on the railway, the ticket shall have the amount of toll charged for conveyance by the steam vessel distinguished from the amount charged for conveyance on the railway." The railway interest sought to take advantage of the pendency of the Railway Regulation Bill 1871, to introduce an enactment making their liability when they were procuring other ship owners to carry for them no greater than if they were carrying in their own ship, the burden of proof that the misfortune happened while the goods were on the ship being on the company. This called attention to the fact that the existing Railway Regulation Act 1868 left a railway company at liberty to impose any conditions when they procured other shipowners to carry for them. It was thought that the restriction on the liberty of contract already imposed on railway companies when carrying the traffic on their own steamers should be extended to such a case; and that if the railway company had contracted to carry partly by rail, partly by steam, and partly by coach or other conveyance on which they might by contract impose any condition, the burden of proof that the misfortune happened after the goods had got out of the steamship ought to lie on the railway company. In my opinion both objects were perfectly reasonable, and I think the Legislature intended to give effect to both; it ought, however, to have expressed its intention in two separate clauses, one for each object. And it is the unfortunate attempt to make one clause serve two purposes that has created the obscurity. As the enact ent is actually worded, there is, I think,

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some difficulty in finding apt words to limit the liability of the railway company for loss of life or injury to the person to the aggregate amount, though I cannot doubt that was intended. That, however, is not the question before your Lordships. I think there are quite sufficient words to express the intention of the Legislature to extend the restriction on liberty of contract to contracts by railway companies to carry by sea, executed by procuring other steamship owners to do the sea carriage. Whether this be politic or not, the Legislature thought it politic. The proviso as to which so much has been said is applicable to this, and to this alone.

I may here dispose of a point which was relied upon by the learned counsel for the respondents-namely, that, as the Midland Railway Company are not authorised by any Act of Parliament to use, maintain, and work steam vessels, or to enter into arrangements for using, maintaining, or working them, they were not affected by sect. 16 of the Act of 1868, and consequently sect. 7 of the Act of 1854 did not apply in the present case; but I cannot believe that the Legislature intended to place companies with no Parliamentary powers in a better position than those who have obtained statutory authority to carry on this class of traffic. In the case of Cohen v. South-Eastern Railway Company (ante, p. 248) the defendants carried on their traffic by their own steamers, and therefore the question of the negligence of other parties did not arise; but I think that decision was right, so far as it decides that the Act of 1854 is extended by sect. 16 of the Act of 1868 to all classes of steamship traffic.

As to what seems to have weighed with some of the judges below, that the railway company may contrive, by acting as booking agents for the Dublin Steam Packet Company, to evade the Act, I can only say that they are free to try. I doubt if it will be found practicable to have the benefit of an office of their own in Dublin, and at the same time to avoid the responsibility. If they succeed in doing so, and in a future Railway Regulation Act a clause is inserted to prevent it, I hope it may be more artistically framed.

The only remaining question is whether this clause is to be adjudged reasonable. And as the condition now before your Lordships tries to exempt the company from all liability for the negligence of their employés, if any condition can be unreasonable within the decision in Peek v. The North Staffordshire Railway Company, this is.

I therefore advise your Lordships to reverse the judgment, and allow the appeal, with costs.

The LORD CHANCELLOR (Cairns), Lords O'HAGAN and GORDON Concurred; the LORD CHANCELLOR observing that their Lordships had fully made up their minds on the question at the time the case was argued, and had only reserved judgment in consequence of the great complexity of the statutes.

Judgment of the Court of Exchequer Chamber in Ireland reversed, and appeal allowed with

costs.

Solicitors for the appellant, Sherwood, Grubbe, Pritt and Cameron, agents for Dillon and Co., Dublin.

Solicitors for the respondents, Carlisle and Ordell, agents for Watson and Co., Dublin.

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Supreme Court of Judicature.

COURT OF APPEAL.

SITTINGS AT LINCOLN'S INN. Reported by J. P. ASPINALL, and F. W. RAIKES, Esq., Barristers-at-Law.

Friday, July 13.

(Before JAMES, BAGGALLAY, and COTTON, L.JJ.) THE AMSTEL.

Right of appeal-Matter in discretion of judgeSupreme Court of Judicature Act 1873, sects. 19, 45, 49-Appellate Jurisdiction Act 1876, sect. 20-County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71), sects. 27, 29-County Courts Act 1875 (38 & 39 Vict. c. 50), sects. 10, 12.

Sect. 19 of the Supreme Court of Judicature Act 1873, does not give the Court of Appeal jurisdiction to entertain an appeal from a judge of the High Court with reference to a matter which before the passing of the Judicature Acts was in the absolute discretion of the judge. Leave to extend the time for appealing from a County Court in the exercise of its Admiralty Jurisdiction, is by sect. 27 of the County Courts Act 1868, a matter within the absolute discretion of the judge of the Admiralty Division, and from his decision no appeal lies to the Court of Appeal.

THIS was an appeal from the decision of the judge of the Probate, Divorce, and Admiralty Division (Admiralty) refusing to extend the time for lodging an appeal from a decision of a County Court in the exercise of admiralty jurisdiction.

A cause of damage was instituted in the Glamorganshire County Court by the owners of the foreign ship Amstel against the Flying Fish, a steamtug, to recover the damages arising out of a collision between the Amstel and the Greek barque Aghiois Spiridion, which was occasioned, it was alleged, by the negligence of the Flying Fish whilst towing the Amstel under a contract of towage.

The cause was heard in the County Court on 20th March 1877, when the learned judge deIcided that both the tug and the tow were to blame for the collision, and condemned each of those vessels in a moiety of the damage, and on the 14th April 1877, the learned judge of the County Court delivered a judgment, assigning his reasons for the decree of the 19th March 1877.

On the 19th March 1877, the owners of the Aghios Spiridion instituted a cause in rem against the Amstel in the Admiralty Division of the High Court of Justice for damages arising out of the same collision. In that cause the owners of the Amstel claimed to be entitled to contribution from the owners of the Flying Fish, and on April 16th obtained leave to serve notice under the Supreme Court of Judicature Act 1875, Schedule I., Order XVI., rule 18, on them, and thereupon the owners of the Flying Fish entered an appearance. The owners of the Amstel then filed an admission of their liability, and applied to the registrar for a transfer of the cause in the County Court to the High Court, and under the Supreme Court of Judicature Act 1875, Schedule 1., Order XVI., rule 19, for direc

[CT. OF APP.

tions as to the mode of determining the questions between the Amstel and Flying Fish, in the action already pending in the High Court. This application was on 13th May refused with costs.

The owners of the Amstel then applied to the Judge of the Admiralty Division for leave to appeal from the decree of the County Court, notwithstanding that the ordinary time for doing so had expired, and on 29th May the motion came on for hearing. The principal enactments to which reference was made in the arguments and judg ment were as follows:

County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71).

Sect. 27. No appeal shall be allowed unless the instru ment of appeal is lodged in the registry of the High Court of Admiralty within ten days from the date of the decree or order appealed from, but the judge of the High Court of Admiralty of England may, on sufficient cause being shown to his satisfaction for such omission, allow an appeal to be prosecuted, notwithstanding that the instrument of appeal has not been lodged within that time.

Sect. 29. There shall be no appeal from a decree or order of the High Court of Admiralty of England made on appeal from a County Court, except by express permission of the Judge of the High Court of Admiralty.

The County Courts Act 1875 (38 & 39 Vict. c. 50).

Sect. 10. There shall be no appeal from a decree cr order of the High Court of Admiralty of England made on appeal from the County Court when such decree or order affirms the judgment of the County Court, except by express permission of the judge of the High Court of Admi ralty. When upon an appeal the High Court of Admiralty alters the judgment of the County Court no leave to appeal to her Majesty in Council shall be necessary.

Sect. 12 repeals various enactments enumerated in Schedule Ċ. of the Act, amongst which is, inter alia (31 & 32 Vict. c. 71), s. 29 above.

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G. Bruce in support of motion.-The time for appeal is not absolutely limited to ten days, in this case there is "sufficient cause for extending it. Until the registrar refused our application we had no reason for appealing, we saved expense by not doing so, as our application to have the question in the action brought by the Aghios Spiridion against the Amstel, and in which the owners of the Flying Fish have appeared, determined as between the Amstel and the Flying Fish, would, if granted have settled the whole question of liability. If an appeal is not now allowed, there will be an absolute denial of justice to the owners of the Amstel, notwithstanding that we have a judgment to the effect that the Flying Fish is, at all events, jointly liable with the Amstel for the collision. Besides there is a question of law as to application of the Admiralty rule of damages to cases where the claim is not merely between the colliding vessels, but between them and third parties.

Webster, for the owners of the Flying Fish, against the motion.-There is no ground to induce the court to allow this appeal. The Amstel has admitted her liability in the action in this court, and cannot call on us for contribution; there is no contribution amongst tort feasors, and the rules of Order XVI. do not apply to such a case as this, and if the appeal was allowed no portion of the damages for which the Amstel has admitted her liability could be recovered against the Flying Fish. The appeal would be simply whether the Judge of the County Court was right or wrong in deciding that both vessels were to blame for the

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damage done to the Amstel, and there was as much reason for that appeal on the 20th March

as now.

G. Bruce in reply.-We did not know the reasons of the learned judge below for his decree till 14th April, and dating from that day we were within our time by taking action to make the Flying Fish contribute.

Sir R. PHILLIMORE.-I think Mr. Webster's contention is correct, and that there has not been "sufficient reason" shown for extending the time, I must refuse the application. The owners of the Flying Fish are entitled to costs.

From this decision the owners of the Amstel appealed, and on the 13th July the appeal came on for hearing.

G. Bruce, for appellants (after an intimation from the court to show that he had a right of appeal). -Sect. 19 of the Supreme Court of Judicature Act 1873 gives jurisdiction to the Court of Appeal to entertain an appeal from any judgment or order of the High Court, except in "cases hereinafter mentioned," and this is not one of the cases mentioned in sect. 49 or elsewhere in the Act. Formerly under sect. 29 of the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) no appeal could be brought except by the leave of the Judge of the Admiralty Court, but that section was repealed by the County Courts Act 1875 (38 & 39 Vict. c. 50), s. 12, and sect. 10 of the latter Act does not apply to the present case, as the learned Judge of the Admiralty Division neither "affirmed," nor "altered" the judgment of the County Court, but refused an interlocutory application having no bearing on the merits of the cause, but in which he had original jurisdiction. For the same reasons the Supreme Court of Judicature Act 1873, s. 45 does not apply, and his decision in such a matter was not final within the meaning of the Appella te Jurisdiction Act 1876, s. 20.

Milward, Q.C., for the respondents, owners of the Flying Fish, was not called on.

JAMES, L.J.-The Court of Appeal has no jurisdiction to entertain this application. Sect. 19 of the Supreme Court of Judicature Act 1873, it is true gives in general terms an appeal from every judgment or order of the High Court, but permission to extend the time for appeal from a County Court in the exercise of its Admiralty jurisdiction is left by sect. 27 of County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) strictly and entirely within the discretion of the Judge of the Admiralty Division, and there is no power given to the Court of Appeal to interfere in such a matter.

BAGGALLAY and COTTON, L.JJ. concurred.

Appeal dismissed with costs.

Solicitors for the appellants, Ingledew, Ince, and Greening.

Solicitor for the respondents, Wynne.

Tuesday, July 17.

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(Before JAMES, BAGGALLAY, and COTTON, L.JJ.) THE ANNANDALE.

Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) sect. 103-Concealing British character-Forfeiture-Bonâ fide purchaser-When forfeiture attaches.

Where an offence is committed by a shipowner or master against sect. 103 of the Merchant Shipping Act 1854, the ship becomes forfeited to H. M., and the forfeiture attaches, and the property in the ship is divested out of the owners and vested in the Crown from the date of the committing of the offence; and a person purchasing such ship bon fide, and without knowledge of the offence committed, after such date but before seizure and condemnation, cannot acquire a title which will override the right of the Crown.

THIS was an appeal from an interlocutory judgment or decree of the High Court of Justice (Admiralty Division) in favour of the plaintiff on a demurrer. The action was brought by the plaintiff, an officer of Her Majesty's Customs, against the ship Annandale, in rem, to obtain a condemnation and forfeiture of the ship for breaches of the provisions of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) sect. 103, sub-sect. 2, and the statement of claim set out the specific offences charged, alleged that the ship had been seized by the plaintiff and brought in for adjudication, and claimed a forfeiture and sale.

The statement of defence alleged amongst other things that after the dates of the offence charged in the statement of claim and before seizure by the plaintiff, the defendant had become a bona fide purchaser for valuable consideration and without notice or knowledge of the matters charged to have been done by the former owners of the ship.

To this part of the statement of defence the plaintiff demurred, and the court below pronounced in favour of the demurrer.

The pleadings and the judgment of the court below will be found fully reported ante, p.

383.

Patchett, Q.C. and Milvain for the appellant.By the Merchant Shipping Act 1854, s. 103, it is (inter alia) provided that if" the master or owner of any British ship does, or permits to be done, any matter or thing, or carries, or permits to be carried, any papers or documents, with intent to conceal the British character of such ship from any person entitled to inquire into the same, or to assume a foreign character with intent to deceive any such person as lastly hereinbefore mentioned, such ship shall be forfeited to Her Majesty." The question raised on this appeal is whether the defendant, having purchased the ship without notice or knowledge of any offence having been committed against that statute, and before process issuing against the ship, has not got a title which defeats the right of the Crown to forfeiture, or did the aets alleged to have been done by the former owners vest the property in the ship in the Crown at once so that there could not be valid conveyance to the defendant. [JAMES, L.J.-If the owner can convey the ship at all after the committal of any such acts as those

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