(Lord Camden v. Home, 4 T. Rep. 382) and that is all we ask. If there had been no payment at all after the original decree, the court could clearly have ordered payment; and refusal to pay would have been a contempt of this court which had held certain persons entitled to payment. If then the court could have ordered payment of the whole, it can order payment of part; that is to say of the balance in the hands of the Secretary of State. In maritime prize cases this court proceeds by virtue of a commission issued to the Lords of the Admiralty authorising them to will and require this court, and the judge thereof, to take cognisance of, and judicially proceed upon all manner of captures, &c., and to hear and determine the same, and according to the course of Admiralty, and the law of nations, to adjudge and condemn all such ships, &c. This court has been given jurisdiction over booty, and it is to proceed as in cases of maritime prize. By the course of Admiralty in maritime prize the court has power to order into the registry the proceeds of the captures, &c. Hence in a case of booty it must have a similar power.

Cur. adv. vult.

June 1, 1875,-Sir R. PHILLIMORE.-This is an application to the court on behalf of Major-General Mackenzie and other persons interested in the distribution of the Banda and Kirwee Booty, to be at liberty to enter an appearance as plaintiffs or interveners in this matter in this court, and further to order a citation to issue to the Marquis of Salisbury Her Majesty's Secretary of State for India, requiring him to enter an appearance, and to show cause why a monition should not issue against him to bring into court certain sums of money, and also the interest due upon these sums.

This application is founded upon a petition supported by an affidavit of the Rev. Alfred Kinloch, late chaplain in the Madras Army, which captured the booty, who appears to have taken an active part in the assertion and maintenance of the claims of the captors of whom he has been the agent. Various documents are appended to this affidavit. The petition sets forth the breaking out of the rebellion in India in 1857. The capture of the Mahratta chiefs and of the town of Kirwee in 1858, and that at the time these chiefs "were possessed of "I cite the words of the petition

66

very considerable moveable property, and that the greater portion of the property captured as herein before mentioned belonged to them, and consisted in part of the following choses in actions which form the principal subject of the present application, namely: [His Lordship here read the description of the property in question as set out in the 5th paragraph of the petition.] The petition further sets forth the following order in council. [His Lordship here read the order in council as set out in the 9th article of the petition.] The petition then states the institution of the suit, and the judgment of the court on the 30th June, 1866, whereby the judge "pronounced the personal representatives of the late General Lord Clyde and the officers of his staff personal as well as general, who were in the field at the time, were entitled to share in the booty captured at Banda and Kirwee in April and June 1858, and subject to this right he awarded the whole of the said booty to Lieutenant-General Sir George Cornish Whitlock and the force under his command called the Saugor and Nerbudda field force

[ADM.

including among the latter the officers and troops under Lieutenant-Colonel Keating, and any other troops left by General Whitlock on his march, who at the time of the capture formed a portion of his division, and were still under command, and he disallowed all other claims to the said booty:" (See L. Rep. 1 A. & E. 109). The petition then proceeds to complain that since the order of the court a part only of the proceeds of the booty have been paid, and sets forth what that part is. The part alleged to be unpaid consists of the property of the Mahratta chiefs already referred to and in addition the following sums of rupees. [His Lordship then read the description of the further sums claimed as given in the 14th paragraph of the petition.] The petition further states that applications have been made to Her Majesty's late and present Secretary of State for India in Council, in whom, since the 21 & 22 Vict. c. 106 transferring the Government of India from the East India Company to Her Majesty, the property has become vested, and that such applications have been refused.

I have thought it necessary to state the petition at some length as the question of law which it raises is very important, and I believe quite novel. The petitioners contend that insomuch as the Crown referred the question of booty under the 3 & 4 Vict. c. 65 to the High Court of Admiralty by the order in council, which, I have stated, the court has, therefore, jurisdiction to enforce its decree of the 30th June 1866, and for this object to order the portion of the booty which it is alleged has not been paid in conformity with the decree, to be brought into court, and direct its proper distribution according to that decree. It has been argued that this is the course which the court would pursue in the case of maritime prize, and that the court has the same jurisdiction by the statute in question of military booty. It has been further argued that the refusal of the Secretary of State to pay these sums of money to the claimants, amounts to an annulment pro tanto of the decree of the court, and that the court once legally seised of the case must have full power to enforce its decree. There is much that is plausible in this argument, and I have taken some time to consider it.

The first thing to bear in mind is that this court has no original jurisdiction in matters of booty of war, and that its jurisdiction is derived! exclusively from the joint operation of the statute and the order in council. The words of the statute (3 & 4 Vict. c. 65, s. 22) are, And be it enacted that the said High Court of Admiralty shall have jurisdiction to decide all matters and questions concerning booty of war or the distribution thereof which it shall please her Majesty, her heirs, and successors by the advice of her, and their Privy Council to refer to the judgment of the said court. And in all matters so referred the court shall proceed as in cases of prize of war, and the judgment of the court therein shall be binding upon all parties concerned." I must, therefore, consider what is the matter and question which it pleased Her Majesty to refer to the court.

The order in council, already stated at length, empowers the judge to determine, first, who are the persons entitled to share in the booty; secondly, the proportions in which they are to share, and, thirdly, the questions of costs and expenses. These then are the only subjects over which the court had jurisdiction, and it is not complained that the decision of the court upon any of these points has

been disregarded by those in whom the custody of the booty is vested. It might have pleased Her Majesty, or it may please Her Majesty, to refer to the court the further questions as to the amount of the booty, and what are the constituent parts of it, but until the court has this jurisdiction giver it, it cannot, I think, by any legitimate construction of the existing order in council, exercise such jurisdiction.

I have not failed to notice the argument arising from the reservation to Her Majesty in the order to direct the rates or scales of distribution. But I think it would be stretching the doctrine of inferring admission of one thing from exclusion of another far beyond its proper limits, if I were to construe the order as having given the jurisdiction which is contended for.

Being, therefore, not satisfied by the argument on this ex parte application that I have jurisdiction, I think it would be wrong to call upon the Secretary of State to enter an appearance, and show cause against this monition and I decline to do so.

Solicitor for the petitioners, Woodfall.

Friday, July 30, 1875. THE ZETA.

Salvage-Barge adrift in the Thames-DerelictSurrender to receiver of wreck-Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), sect. 450. A laden barge accidentally breaking loose from her moorings in the river Thames, and drifting about with no one on board, is not derelict, and conse quently not "wreck" within the meaning of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), and persons finding her and mooring her in safety are not precluded from recovering salvage for so doing by reason of their neglecting to comply with the provisions of the 450th section of the above Act, and to deliver the barge to the receiver of wreck.

THIS was an appeal from the City of London Court (Admiralty Jurisdiction). The parties stated the following case on appeal :

1. This a cause of salvage instituted in the City of London Court, on the 3rd April 1875, on behalf of Alfred Waller and Joseph Chapman, of Blackwall, in the county of Middlesex, against Richard Cory, Henry James Cory, Francis Wright, and John Cory Havers, of Commercial-road, Lambeth, in the county of Surrey, owners of the barge Zeta, and the cargo laden on board her, in the sum of 501.

2. The plaintiffs are both licensed watermen, and the defendants are the members of the firm of Willian Cory and Son, coal merchants and barge

owners.

3. The plaintiffs' case, as stated by counsel on the bearing of the cause, was that between twelve and one o'clock on the 18th March 1875, the plaintiffs, who were in their boat, near the West India Dock, in the river Thames, observed a barge (which proved to be the Zeta) adrift near the north shore. The plaintiffs rowed towards her, and boarded her between West India Dock and Blackwall Stairs. On getting on board they found that the Zeta was laden with about fifty tons of coal, drifting with no person on board, the head fast rope appearing to have parted.

[ADM.

4. That the plaintiffs succeeded in bringing the Zeta up at a causeway about 6ft. wide, and subsequently moored at the Northumberland Coal Wharf, and subsequently the defendants' servants took charge of her there. For the above services the suit was instituted. The value of the said barge is estimated at 150l., and her cargo at about 461.

11. The plaintiffs sent in a claim to the defendants for salvage, but the defendants denied any liability in respect of any claim in the nature of salvage.

12. On the 22nd April 1875 the case came on for hearing in the said court, before Mr. Commissioner Kerr, and on hearing counsel for the plaintiffs (who stated the facts as above set out, and without hearing any witnesses for either side, or counsel for the defendants), the learned commissioner was of opinion that, even assuming that the plaintiffs had earned or become entitled to any salvage reward (which was not admitted by the defendants), they had forfeited any claim thereto, by not taking and delivering the Zeta to the receiver of wreck (according to the provisions of the Merchant Shipping Act 1854, sect. 450).

13. The plaintiffs contended that the section of the said Act did not apply.

14. The learned commissioner ruled that the section of the said Act applied, and that the plaintiffs had forfeited their claim to salvage by not complying with the provisions of the said section, and therefore dismissed the suit.

15. The question for the opinion of the High Court of Admiralty is whether (on the above facts) the learned commissioner was right in ruling that sect. 450 of the Merchant Shipping Act applied, and that the plaintiffs had forfeited their claim to salvage by not complying with the provisions of the said section.

If the court should be of opinion in the affirmative the appeal is to be dismissed with costs.

If the court should be of opinion in the negative, then this case is to be remitted to the City of London court for hearing, and the costs of this appeal are to abide the event.

W. G. F. Phillimore, for the appellants (plaintiffs). The Merchant Shipping Act (17 & 18 Vict. c. 104) enacts that "The following rules shall be observed by any person finding or taking possession of wreck within the United Kingdom (that is to say). ... (2) If any person not being the owner finds or takes posses sion of any wreck, he shall as soon as possible deliver the same to such receiver as aforesaid; and any person making default in obeying the provisions of this section shall incur the following penalties (that is to say)

(4) If he is not the owner, and makes default in performing the several things, the performance of which is hereby imposed on any person not being an owner, he shall forfeit all claim to salvage; he shall pay to the owner of such wreck if the same is claimed, but if the same is unclaimed, then to the person entitled to such unclaimed wreck, double the value of such wreck, &c." Now, even supposing that this barge and her cargo are to be treated as wreck, I submit that the section does not apply to a case where the owner comes in and claims the property. A delivery up to the owner is enough, and the object of the statute is merely to secure the return of the property to the owner, and to provide against fraud on the part of the salvors. An owner even

ADM.]

is bound to give notice of the recovery of wreck; this is part of the public policy which protects the rights of the Crown and owners against all chance of fraud. The restoring of property to its lawful owners has frequently been commended in this court, and masters have not unfrequently suffered for their neglect to do so: (The Champion, Bro. and Lusb, 69.) It is, no doubt, the duty of a salvor to keep a derelict whose owners do not appear, and deliver her up to the receiver of wreck, but delivery to her owners answers the same purpose. But, secondly, I contend that this is not "wreck" at all. The word "wreck implies something damaged and abandoned, such as a derelict, but this vessel had never been abandoned, sine spe recuperandi. In fact, she had, evidently broken loose from her moorings, and she was wholly uninjured. There was no intention of abandoning her at all.

The Aquila, 1 C. Rob. 37;

The Clarisse, Swab. 129, 130.

There is here no element of wreck or derelict. [He was then stopped by the court.]

R. E. Webster, for the respondents (defendants). -By the Merchant Shipping Act 1854, sect. 2, “Wreck shall include jetsam, flotsam, lagan, and derelict found in or on the shores of the sea or

any tidal water." The object of this sect. 450 is to prevent goods which are floating about not in anyone's charge, from getting into wrong hands; it is intended to protect salved property. No case that has been cited touches the question, because this point has not been raised. The section must apply to such a case as this, or it has no meaning. [Sir R. PHILLIMORE.-How is this wreck; it is not jetsam, flotsam, or lagan; can you call it derelict ?] "Derelict" under the Merchant Shipping Act must be taken to have a larger meaning than that usually applied to it in this court; it includes every vessel floating about in tidal waters not in charge of her crew or other persons.

Sir R. PHILLIMORE.-I am of opinion that the 450th section of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 154) does not apply to a case of this kind. Here is a barge near the West India Dock, in the river Thames; she gets adrift near the shore, and I think it is clear that though she was at one time moored, the rope must have parted. She was laden with coal. It appears to me that it would be quite wrong and improper to put upon this clause such a construction as is contended for, and to hold that this barge was "wreck" within the sense of the interpretation clause and of the statute, namely, that it was either jetsam, flotsam, lagan, or derelict. The term derelict means that a vessel has been left sine spe recuperanda and sine animo revertendi, and I adhere to what I said in The Clarisse (Swab. 129, 130); and I entirely agree in that which was said by that great master of maritime law, Lord Stowell, in regard to derelicts, in the case of The Aquila (1 C. Rob. 37). But I think it would be right that I should express my opinion on the other point, which is the real point in the case, on the construction of the statute. I do not consider that the section was intended to apply to salvors who have found a derelict, and have restored it to its owners. I cannot conceive that such a construction can be put upon the Act as this; namely, that though they have restored the derelict vessel to her owners, which, according to the principles of maritime law, it was their duty to do, they are liable to pay, nevertheless, double

the value to the owners, and perhaps a penalty of 100l., for what is called an improper detention. This is a penal clause in the statute, and is intended to apply to a criminal and improper detention, whereby it is sought to practise a fraud upon the Crown or the owner, but not to apply to cases of this description. I think it unnecessary to make any further remarks upon that point, and I send this case back again to the learned judge of the court below for trial.

Solicitors for the appellant, Lowless and Co.
Solicitor for the respondent, J. A. Farnfield.

COURT OF BANKRUPTCY.
Reported by A. A. DORIA, Esq., Barrister-at-Law.

(Before the CHIEF JUDGE.)
Monday, Nov. 8, 1875.

Re WHITWORTH AND Co.; Ex parte BLACKBURN;
Ex parte GIBBES AND CO.

Vendor and purchaser-Bill of lading-Bill of exchange-Handing over shipping documents— Ultimate destination-Bankruptcy of purchaserStoppage in transitu-Constructive delivery— Carriers' lien.

G. and Co., merchants in America, shipped a number of bales of cotton to Liverpool "consigned to order, for account and risk of W. and Co. of Luddenden Foot." At the same time G. and Co. sent to B. and Co., their agents at Liverpool, the shipping documents and a bill drawn by G. and Co. for W. and Co.'s acceptance. On W. and Co. accepting the bill, B. and Co. handed to them the shipping documents, and by their direction delivered the cotton to the L. Railway Company to be forwarded to Luddenden Foot, but, before the whole of the cotton was delivered there, W. and Co. filed a petition for liquidation. G. and Co. thereupon claimed the right of stoppage in transitu over the remainder of the cotton. Held, that by the terms of the contract between the parties, Liverpool was the place of destination for the cotton, and that the transaction between them was completed when W. and Co. accepted the bill drawn against the consignment, and the shipping documents were handed over to him.

At Luddenden Foot there was a railway siding constructed on the property of the company, but kept in repair at the expense of W. and Co., for whose sole use and convenience it was made. When trucks containing bales of cotton reached Luddenden Foot, they were generally placed on the siding, and thence conveyed across the main line of the railway to the mill of W. and Co. on the other side. Such of the above mentioned bales of cotton as reached Luddenden Foot prior to the filing of the liquidation petition were, with the ex• ception of one truck load, which remained on the general siding of the company, placed on the railway siding. Others were immediately taken across to the mill and manufactured, the rest remaining upon the siding. Other portions of the cotton reached Luudenden Foot after the date of the liquidation petition.

Held, assuming that Liverpool was not the destination of the cotton, that the cotton which was placed upon the railway siding at Luddenden Foot, had reached its ultimate destination; and further, that, under the circumstances, the delivery

BANK.]

of part of the cotton was a constructine delivery of the whole.

THESE were two appeals from an order made on the 8th June 1875, by the judge of the County Court at Halifax.

For many years prior to the 17th of April 1875, Gibbes and Co., of Charleston, U.S.A., cotton growers, were in the habit of consigning to Whitworth and Co., cotton spinners, of Boy Mill, at Luddenden Foot, near Halifax, large quantities of cotton to be used by them for the purposes of their trade. The course of dealing between the parties was that Gibbes and Co., from time to time forwarded the cotton purchased of them to Liverpool, consigned to the order of Whitworth and Co. Simultaneously with the shipment of the cotton Gibbes and Co. drew upon Whitworth and Co. for the amount of the consignment, bills payable sixty days after sight, and forwarded the same for acceptance, together with the bill of lading, to Brown, Shipley, and Co., the agents at Liverpool of Gibbes and Co. Brown, Shipley, and Co., transmitted the draft to Whitworth and Co. for their acceptance, which being done and returned, Brown, Shipley, and Co. forwarded the bill of lading to Whitworth and Co., and they, having indorsed it, sent it to a Mr. Wintle, the manager of the Lancashire and Yorkshire Railway Company at the North Docks Station, Liverpool, where the cotton lay, with cash sufficient to defray the charges for the sea freight. The railway company thereupon paid the charges, took possession of the cotton, and forwarded it by their own line from the North Docks station to Luddenden Foot, for which service the railway company became entitled to a further payment from Whitworth and Co. Sometimes, however, the railway company advanced the charges for the sea freight without waiting for a remittance from Whitworth and Co., and forwarded the cotton so obtained to Luddenden Foot, and delivered it to Whitworth and Co., debiting them with the charges and further costs of carriage. Whitworth and Co. were large customers of the railway company, and in the case of cotton consigned to the firm the trucks containing the same were, on arrival at Luddenden Foot, placed by the servants of the railway company sometimes on one or other of the general sidings of the company in the station yard, and sometimes on a siding called the "Whitworth Siding," of which the following is a description: "Boy Mill is situated at the south end of the railway station at Luddenden Foot, and adjoining to the main line of railway, and on the other side of the railway opposite to Boy Mill, and, connected with the main line by points in the ordinary way, is the Whitworth Siding which is connected by a turn-table and cross lines of rails with the interior of Boy Mill. This latter siding contains standing room for about twenty goods' trucks of ordinary construction. The soil upon which it stands is the property of the railway company, but was originally formed and afterwards kept in repair by the railway company, at the expense and for the sole and exclusive use of Whitworth and Co. Upon this siding a notice board was placed by the railway company, and bearing in large letters the words "Whitworth Siding." The siding is protected at each end by blocks in the ordinary way, and except when trucks are being shunted on to, or taken off the siding, from, or on to the main line, the blocks are invariably kept

closed and secured by padlocks." But, wherever the trucks of cotton were placed, no advice notes were ever issued to Whitworth and Co., but down to the 18th April 1875, the firm was allowed to take aud remove the goods, subject only to the necessary precautions for crossing the main line at their absolute discretion, without freight being required, on, or before delivery, as they kept a ledger account of freight with the railway company."

In March 1874, Gibbes and Co. under their general contract dispatched by the Republic steamer from New York seventy-two bales of cotton, "to be shipped to Liverpool, consigned to order, for account and risk of Whitworth and Co., Luddenden Foot." In due course the invoice, together with a bill of exchange, drawn by Gibbes and Co., for 10471. 198., was on the 6th April received by Whitworth and Co. for acceptance. This being done, the bill was returned to Brown, Shipley, and Co., who thereupon forwarded the bill of lading to Gibbes and Co. Gibbes and Co. then endorsed the bill of lading to Mr. Wintle, with instructions to send the cotton to Luddenden Foot.

On the 11th and 15th April, the bales, ex Republic, reached Luddenden Foot, and upon their arrival thirty-three of them were immediately taken into the mill and manufactured. Of the remaining thirty-nine, twenty, which were in one of the company's trucks, No. 3166, were placed on the Whitworth Siding, and the other nineteen, in truck No. 1260, remained on the railway company's general siding.

On the 13th April Whitworth and Co. in like manner received a similar invoice and a bill for 10797. 16s. 9d., in respect of seventy-two bales of cotton shipped per Celtic, which were in due course forwarded to Luddenden Foot. This cotton was similarly disposed of, thirty-three bales being on the 19th April taken into the mill and manufactured, twenty being left in truck No. 11,695, on the company's sidings, and the remaining nineteen, in truck No. 7524, reached Luddenden Foot Station on the 21st.

On the 17th April 1874, Whitworth and Co. filed a petition for liquidation. At the general meeting held on the 8th May the creditors resolved upon a liquidation by arrangement, and appointed H. Blackburn trustee.

On the 18th April the railway company, having notice of the petition, removed the truck No. 3166 on to their lines, and claimed a general carriers' lien for unpaid freight on the four trucks of cotton in their possession.

On the 21st April Ernest Schott, the Manchester agent of Gibbes and Co., gave notice to the railway company that he claimed on behalf of his principles the thirty-nine bales ex Celtic and the thirty-nine ea Republic, which were in the four trucks at Luddenden Foot station.

On the 27th April 1874, Gibbes and Co. applied for an order that, by their notice of the 21st, they had well and effectually exercised their right as unpaid vendors to stop in transitu the bales of cotton which remained in the possession of the railway company. By an arrangement between the parties the bales in dispute were sold, and the proceeds, amounting to 12201., paid into the bank to abide the result of the application.

On the 8th June 1875, the County Court Judge being of opinion that the ultimate destination of the cotton was Luddenden Foot station, and that