ADM.] : THE M. MOXHAM. suited; but in admiralty no such course could be taken the court held that it had jurisdiction under the Act, and ro question was raised as to the local venue. [Sir R. PHILLIMORE.-Foreign courts do not try local actions arising in countries outside their own jurisdiction.] But this court does not follow Foreign courts, but English courts which do try such actions. Watkin Williams, Q.C. for the defendants.— We do not wish to contest the question of jurisdiction, having agreed to submit to it as stated in the affidavit of Ellis. I propose to strike out the last words of the first article of the answer. Sir R. PHILLIMORE.-I am inclined to consider that there is jurisdiction, subject to any argument I may hear to the contrary, and therefore I shall not raise any objection to taking jurisdiction; but of course my not objecting will not give the court jurisdiction. Butt, B.C.-I claim that all the words in art. 1 of the answer relating to jurisdiction should be struck out, that is to say, all words after the word "mentioned." Williams, Q.C.-Then I ask that the words alleging the pier was annexed to the land of Spain be inserted in the 4th article of the answer. Sir R. PHILLIMORE.-Then let the answer stand amended in these respects. Butt, Q.C.-Then the only question is as to the local law, although as this is a cause over which the court has primâ facie jurisdiction, that jurisdiction in the absence of the plea struck out, exists by law and not by consent. Then upon the 4th article of the answer the question is whether a tort committed by a British subject against a British subject in a foreign country is triable in an English Court. There can be no doubt that a wrong committed by one Englishman upon another in foreign territory is triable by the courts of this country, and that a defendant may be made responsible for such a wrong (Scott v. Lord Seymour, 31 L. J. 457, Ex.; 6 L. T. Rep. N. S. 607; in error, 1 H. & C. 219; 32 L. J. 61, Exch. ; 8 L. T. Rep. N. S. 511); that case turned no doubt very much upon a question of procedure, and was, therefore, within the lex fori, but the opinion of Wightman, J. (in error) is that a British subject has a remedy for a tort committed abroad by another British subject even though the foreign law gives him no remedy. And this doctrine is concluded by the Halley (L. Rep. 2 P. C. 193; 18 L. T. Rep. N. S. 879: 3 Mar. Law Cas. O. S. 131), which is exactly in point, deciding that in a case of tort in foreign territory English courts do not apply the foreign law in order to determine the legal consequences of the act done, but the English law. A British subject is triable in England for the murder of a British subject abroad: (R. v. Helsham 4 C. & P. 394). By the Admiralty Court Act 1861 (24 Vict. c. 10), s. 6, this court has jurisdiction over any claim for damage done by a ship. This tribunal in dealing with a case within its competence will apply the law of England. The law of Spain cannot apply to a case between British subjects concerning an act done by a British ship; such a question must be governed by British law, that is by law administered in this court. Messina v. Petrococchino, L. Rep. 4 P. C. 144; 26 [Sir R. PHILLIMORE.-In the United States it has VOL. III., N.S. [ADM. been distinctly ruled that although pilotage may be made compulsory by statute, yet shipowners are not thereby exempt from liability for the negligence of the pilot: (The China, 7 Wallace Sup. Court Rep. 54.) This decision in its effect very much resembles The Halley.] Even supposing Spanish law would govern if the present case had arisen upon land, it cannot be applied here because the cause of action arose upon navigable waters with ebb anp flow of tide. The ship was afloat, and the negligence of her master occasioned the injury; the thing and the persons occasioning the injury were subject to British law; the master on board his ship was practically upon British territory and within British jurisdiction in respect of all torts or wrongful acts committed by him. By foreign law at least, the conduct of a foreign master on board his own ship is governed entirely by the law of his own country; he is liable to no other jurisdiction in criminal matters. In Lloyd v. Guibert (L. Rep. 1 Q. B. 115), it is distinctly laid down by the Exchequer Chamber that the responsibility of owners for the acts of their master is governed by the law of the flag, and that whoever deals with a master in a foreign port acts upon that supposition unless the contrary appears. In R. v. Anderson (L. Rep. 1 C. C. R. 161) it is held that the admiralty jurisdiction of England extends over British vessels not only when they are sailing over the high seas, but also when they are in the rivers of a foreign territory at a place below bridges, where the tide ebbs and flows, and where great ships go, and that all seamen, whatever their nationality, serving on British ships are amenable to the provisions of British law. If, therefore, in both civil contract and criminal acts the law of the flag governs and the tribunals of the flag have jurisdiction, why does not the same rule apply in cases of tort not criminal where the injury has been done by the master of a British ship on board a British ship to a British subject resident abroad? Watkin Williams, Q.C. and J. C. Matthew (E. C. Clarkson with them) for the defendants, in support of the answer.-The cause of action is the negligent destruction of a pier forming part of the soil of Spain by servants of the shipowners; by the law of Spain no liability attaches to the shipowners in respect of such negligence. Starting with the assumption that the court has jurisdiction there has been no tort committed,cognizable in this country. Before a tort committed abroad can be tried in an English court it must be a tort within the law of the country where it was committed. By The Halley (ubi sup.) it was decided that according to the law of England if a person sues on an alleged cause of action committed in a foreign country, it is not enough to make out that there was a liability by foreign law, but there must also be liability by the law of England. To give a right of action for a tort committed abroad there must be such a right both by the foreign and by English law. This is not a mere matter of procedure. Phillips v. Eyre, L. Rep. 6 Q. B. 1, 28; Smith's Leading Cases, Vol. 1, 7th edit. pp. 700, 701; We are bound, of course, to use the English procedure, but we cannot be precluded from giving evidence of the foreign law, nor does The Halley (ubi sup.) show that the defendant is to be deprived of this right; on the contrary a defendant may H avail himself of that law so far as it is in his favour; that case only establishes that a defendant cannot avail himself of foreign law to escape the result of an obligotion imposed by that law; it cannot be used to establish the converse of that proposition. The rule as to marriages made abroad is in point; they are valid only here when valid both by English and foreign law. The court should adopt the law of Spain, and if by that law no wrong has been done between the parties, the law of England cannot give a remedy where no wrong exists; the civil liability for an act done derives its existence from the law of the place where the act was done, and when the law of that place does away with that liability, the act cannot be called in question elsewhere: (Phillips v. Eyre, L. Rep. 4 Q. B. 225; L. Rep. 6 Q. B. 1.) It cannot be that a man is to be held liable in this country for doing an act abroad which is perfectly lawful in the place in which it was done. In Debree v. Napier (2 Bing. N. C. 781) it was held that the defendant, who was a British subject, was not liable for seizing a ship under the authority of a foreign power, his act being lawful by the law of the country for which he acted although contrary to English statute law. In Reg. v. Lesley, (Bell's C. C. 220; 29 L. J. 97, M. C.) it was held that an imprisonment on board a British ship in a foreign port under the authority of the foreign government was justifiable on the part of the master of the ship, but not upon the high seas. In Westlake's International Law it is said (p. 240) that "the legal character and consequences of an act must depend upon the jurisprudence of the country where it is done, and not on that of any spot to which its consequences may extend. The damage is not an injury unless it results from an act prohibited by the law which governs the agent." In The General Steam Navigation Company v. Guillou, (11 M. & W. 877) it was held in an action brought by the plaintiffs against the defendant as owner of a steamer for damage by collision, that a plea alleging that the ship was French and that she was owned by a French company of which the defendant was a member, and that by the law of France the company, being in the nature of a corporation, and not the defendant, was liable for the negligence of the master and crew, was a good plea. Benjamin, Q.C. in reply.-The negligence complained of was not upon land, but it was in navigating a British steamship on tidal waters, and consequently the act must be taken in the eye of the law to have been done upon British territory. The act was a tort by the law of Spain, and the only question is one of responsibility for the acts of the person who did it, and that question must be governed by the maritime law as administered in this court, as the person doing the act, the master of the ship, was a British subject then upon a British vessel navigating tidal waters. Reg. v. Anderson, L. Rep. 1 C. C. R. 161; The Industrie, L. Rep, 3 Adm. & Ecc. 303; 24 L. T. Rep. N. S. 446; 1 Asp. Mar. Law Cas. 16. Cur. adv. vult. July 29.-Sir R. PHILLIMORE.-I have consulted all the authorities mentioned to the court, and have arrived at the conclusion that the fourth article must be struck out, and I decide that the law of England and not the law of Spain must govern this question. I give this decision now as I understand there is a desire for a commission to [ADM. examine witnesses in Spain before the trial comes on, and I will give a reasoned judgment at a future time. Nov. 2.-Sir R. PHILLIMORE now delivered his reasoned judgment.—In this case a suit has been instituted on behalf of an English Joint Stock Company, who are possessed of a pier at Marbella in Spain, against the steamship M. Moxham. The petition alleges that the negligent navigation of the steamship brought her into collision with the pier, and caused great damage to it. The answer denies the negligent navigation and says thedamage was the result of inevitable accident or of the insufficient state of the pier, and further pleads in the 4th article according to the amendment proposed and accepted at the hearing as follows: "They further say that the said alleged collision happened within the territory and jurisdiction of Spain, and that the said pier at the said time was annexed to and formed part of the land of Spain, and that if the said collision was occasioned by any negligence or improper navigation of those on board the M. Moxham, it was solely occasioned by the negligence of the master and mariners of the M. Mox. ham, and not by the defendants or any of them, and that by the law of Spain in force at the time and place of the said collision, the master and owners of the ship, and not the ship or her mariners are liable in damages in respect of a collision as in the petition elleged, and by such law neither the M. Moxham nor the defendants nor any of them are or is liable in respect of the damages proceeded for in this cause.' This article has been objected to on the ground that the law of Spain does not govern the question, which is to be decided according to the law of England, and the objection to the jurisdiction pleaded in a former article of the answer having been withdrawn, the only question which I have now to determine is whether the law of Spain or the law of England is to be applied to the circumstances of the case. The damage of which complaint is made must be taken to have been inflicted by a British merchant vessel while in waters subject to the admiralty jurisdiction within the ebb and flow of the tide upon a pier in the territory of Spain. The act of injury, therefore, was done from the merchant vessel at sea, though the object injured was situate on the land. The defendants contend that in these circumstances this court must apply the local law, which, as they allege, exempts the ship from liability, and neither the lex fori nor law of the flag, under which the ship, if improperly navigated, would be liable for the damage. Various cases were cited in support of this proposition, among them Dobree v. Napier (2 Bing. N. C. 781) and Phillips v. Eyre, as decided in the Queen's Bench and in the Exchequer Chamber (L. Rep. 4 Q. B. 225; 6 Q. B. 1). But the latter of these cases was in great measure dependent upon peculiar circumstances, and upon the powers of a colonial legislature as recognised by the law of the Empire, And in the former case the alleged tort arose out of an act of an officer of a foreign state, acting, as the court held, lawfully in the seizure on the high seas of a vessel breaking the blockade, and therefore committing no trespass Both cases, moreover, turning upon acts of state, afford no safe analogy upon which the court could rely. Upon behalf of the plaintiffs these cases were more especially relied upon: Reg. v. Anderson (L. Rep. 1 C. C. R. 161); Lloyd v. Guibert ADM.] THE GENERAL BIRCH-THE TWO BROTHERS. (L. Rep. 1 Q. B. 115; 6 Best & Sm. 100); and The Halley (L. Rep. 2 P. C. 193). In the first case, which related to a charge of manslaughter committed on board an English vessel within a French river where the tide ebbed and flowed, Bovill, C.J. said: "There is no doubt that the place where the offence was committed was within the territory of France, and that the prisoner was, therefore, subject to the law of France, which that nation might enforce if they thought fit; but at the same time he was also within a British merchant vessel, on board that vessel as a part of the crew, and as such he must be taken to have been under the protection of the British law, and also amenable to its provisions." And in this view the other judges seem to have concurred. It seems hardly necessary to refer to other cases, but I would observe that the case of Lloyd v. Guibert establishes that in a case of contract the responsibility of the owner of a vessel for the acts of his servants is governed by the law of the flag. With regard to The Halley, I think it unnecessary to enter into an examination of that case, the decision in which is of more indirect application; but I agree with the counsel for the plaintiffs that it points in the same direction. Upon the whole I am satisfied, both upon principle and upon the authority of precedents, that the Spanish law is not applicable to the present case, and that the 4th article must be reformed by striking out all that part which pleads the Spanish law, that is all the words after the words "the land of Spain." Solicitors for the plaintiffs, C. Ellis and Co. Solicitors for the defendant, Parker and Clarke. Wednesday, Nov. 2, 1875. (Before Sir R. PHILLIMORE.) THE GENERAL BIRCH. Action commenced in district registry-Defendants out of jurisdiction of registry-Appearance in London Registry-Practice. Where an action in rem is instituted against a ship in a district registry and the shipowners, residing out of the jurisdiction of that registry, enter an appearance in the London Registry, the appearance must show where the action was commenced, the title of the cause in the district registry, and that the defendants are resident out of the jurisdiction of that registry. THIS was a cause of collision instituted in rem on the 30th Oct. 1875 against the Swedish vessel General Birch in the Liverpool District Registry. The owners were resident out of the jurisdiction of that registry, being the Shipowners' Association of Christiania, and wished to avail themselves of the right given by the Supreme Court Rules 1875, Order XII., rule 3, to enter an appearance in the London Registry. W. G. F. Phillimore, on behalf of the owners, now applied ex parte to the court under the Supreme Court of Judicature Act 1873, s. 22, for directions as to the mode of procedure. He pointed out that under the Liverpool Admiralty District Registrar's Act 1870, s. 13, the court has power to transfer the cause to the London Registry, but in that case it would then be necessary to appear in the Liverpool Registry and then give notice to the other side of the motion, [ADM. and the shipowners preferred to have the proceedings continued in London at once. Order XII., rule 3 of the Supreme Court rules would apply if the cause was directed to proceed under the new procedure, but not otherwise. Without directions the shipowners did not know how an appearance ought to be entered in such a case in the London Registry. Sir R. PHILLIMORE ordered that the cause should proceed under the new procedure, that the appear. ance should be entered in the London Registry, and that, as the cause had been commenced in the Liverpool Registry, the appearance should recite that the cause had been commenced in the Liverpool Registry, should show what the title of the cause was in the Liverpool Registry, and should state that the defendants resided out of the jurisdiction of that registry. Solicitors for the shipowners, the defendants, Waddilove and Nutt. Wednesday, Nov. 9, 1875. County Court appeal-Appellate court-Divisional court-Admiralty Division-Supreme Court of Judicature Act 1873, ss. 34, 42, 45. Although the Supreme Court of Judicature Act, 8. 45, provides that County Court appeals may be heard before a divisional court consisting of two or three judges (sect. 40), the Admiralty Division, having all the exclusive jurisdiction of the High Court of Admiralty before the passing of the Act, still retains the jurisdiction to hear and determine County Court Admiralty appeals. THIS was a motion for directions as to an appeal from a County Court. The cause was instituted in the Hull County Court under the County Courts Admiralty Jurisdiction Act 1868, and on the 28th Oct. 1875 judgment was delivered in that court against the defendant for 531. 1s. 5d. Against this judgment the defendant was desirous of appealing, and had given the usual notice of appeal, and had filed the usual præcipe instituting a cause on appeal in the registry of the Admiralty Court. The defendant had tendered to the registrar, in accordance with the provisions of sect. 26 of the County Courts Admiralty Jurisdiction Act 1868, security for the costs of the appeal, but the registrar had refused to accept the security on the ground that the appeal to the Admiralty Court or Division had been taken away by the Supreme Court of Judicature Act 1873, s. 45. The time within which the security had to be given had in consequence of this action on the part of the registrar of the County Court expired, and the defendant was consequently unable to appeal withcut special leave. The case now came before the court upon motion on behalf of the defendant to the judge "to allow and direct in what manner an appeal from a judgment of the County Court of Yorkshire, holden at Hull, Admiralty Jurisdiction, shall be proceeded with." W. G. F. Phillimore, for the defendant.-I ask the court for leave to appeal, upon depositing the required security in the County Court, and to give directions to the County Court Registrar to take the security when offered. Secondly, I ask for directions as to the manner in which the appeal is to be proceeded with. Formerly County Court Admiralty appeals lay to the High Court of Admiralty. Now, by the Supreme Court of Judicature Act 1873, s. 34 there are assigned to this division "all causes and matters which would have been within the exclusive cognisance of the Court of Probate or the Court for Divorce and Matrimonial Causes, or of the High Court of Admiralty if this Act had not passed." This appeal would have been within the exclusive cognisance of the High Court of Admiralty if the Act had not passed, by reason of the provisions of the County Courts Admiralty Jurisdiction Act 1868, s. 26, and by sect. 42, "all causes and matters which would have been within the exclusive cognisance of the High Court of Admiralty shall be assigned to the present judge of this said Admiralty Court during his continuance in office as a judge of the High Court." These two sections would seem to keep the jurisdiction to hear County Court Admiralty Appeals in this division, but by sect. 45 it is provided that "all appeals from a County Court .. which might, before the passing of this Act, have been brought to any court or judge whose jurisdiction is by this Act transferred to the High Court of Justice, may be heard and determined by divisional courts of the said High Court of Justice, consisting respectively of such judges thereof as may from time to time be assigned for that purpose, pursuant to rules of court, or (subject to rules of court) as may be so assigned according to arrangements made for the purpose by the judges of the said High Court." This would seem to show that an appeal such as this should be heard by a divisional court, but no such court as yet exists, and consequently, unless we can appeal to the Admiralty Division there is no appeal at all. The only way out of the difficulty is to hold that the 45th section is permis. sive, and that the appeal may be to a divisional conrt, but also lies to the Admiralty Division. This is not a divisional court, which, by sect. 40, consists of two or three Judges of the High Court of Justice. And yet the Legislature seemed to have contemplated the continuance of these appeals to the judges of the Admiralty Division, because, by the County Courts Act 1875, which came into operation the day after the Supreme Court of Judicature Acts, there is an express provision (sect. 10) as to the necessity for obtaining leave to appeal in County Court Appeals from decisions of the Admiralty Court in County Court Appeals. [Sir R. PHILLIMORE.-I see that sect. 34 of the Supreme Court of Judicature Act 1873, in assigning business to the Chancery Division gives that division. jurisdiction over all matters within the exclusive cognisance of the Court of Chancery "except appeals from County Courts." This is not the case with any other division. May it not, therefore, be inferred in all other cases, County Court Appeals may be heard in the same manner as heretofore?] E. C. Clarkson, for the plaintiff, contra.-I submit that the only court which has jurisdiction is a divisional court appointed under sect. 45 of the Supreme Court of Judicature Act 1873, and that this court has no power to interfere with the appeal. W. G. F. Phillimore in reply. Cur. adv. vult. Nov. 16.-Sir R. PHILLIMORE.-This is an application for leave to appeal from a decision of the County Court of Yorkshire, the time prescribed by the [ADM. statute having elapsed. Two questions are raisedone as to whether the application be such as the court ought, in the exercise of its discretion, under the County Court Act, to grant; the other as to whether the application be rightly made to this court having regard to the provisions of the Judicature Acts. First, I am of opinion that if I have the power I ought, in accordance with the spirit of former decisions on the subject, to grant the application. The second question is more difficult to determine. The 34th section of the first Judicature Act (1873) relates to the assignment of certain business to the decisions of the High Court. Paragraph (2.) (dealing with Chancery business) provides, that there shall be assigned to the Chancery Division of the High Court, "all causes and matters to be commenced after the commencement of this Act, under any Act of Parliament by which exclusive jurisdiction, in respect to such causes or matters, has been given to the Court of Chancery, or to any judges or judge thereof respectively, except appeals from County Courts." These words of exception as to appeals seem to intimate that where they are not used, appeals from County Courts are included in the category of causes and matters to be assigned. The second paragraph as to assignments to the Probate, Divorce, and Admiralty Division provides that there shall be assigned to that division "all causes and matters which would have been within the exclusive cognisance of the Court of Probate or the Court for Divorce and Matrimonial Causes, or of the High Court of Admiralty, if this Act had not passed." At the end of sect. 42 it is provided that subject to certain exceptions" all causes and matters which, if this Act had not passed, would have been within the exclusive cognisance of the High Court of Admiralty, shall be assigned to the present judge of the said Admiralty Court during his continuance in office as a judge of the High Court." I am of opinion that the present application relates to a cause or matter which has hitherto been within the exclusive cognisance of the present judge of the High Court of Admiralty. The Acts which gave, within certain limits, jurisdiction in admiralty matters to the County Courts confined the appeal from their decisions to this court. There can be no reasonable doubt, I think, that, if there was no other enactment in this statute as to County Courts, the present application would have been rightly made. But reliance is placed by the counsel who oppose the application on the 45th section, which is as follows: "all appeals from petty or quarter sessions, from a County Court, or from any Inferior Court, which might, before the passing of this Act have been brought to any court or judge, whose jurisdiction is by this Act, transferred to the High Court of Justice, may be heard and determined by divisional courts of the said High Court of Justice, consisting respectively of such of the judges thereof as may from time to time be assigned for that purpose, pursuant to rules of court, or (subject to rules of court) as may be so assigned, according to arrangements made for the purpose by the judges of the said High Court. The determination of such appeals respectively by such divisional courts shall be final, unless special leave to appeal from the same to the Court of Appeal shall be given by the divisional court by which any such appeal from an inferior court shall have been heard." After much consideration I have arrived at the conclusion that it could not have been the intention of the Legislature to limit the powers already granted by the previous section to the present judge of the High Court of Admiralty, and that the 45th section must be construed so as to be in harmony with the 42nd section. I should mention also that the last County Court Act (38 & 39 Vict. c. 50), which was passed in the same session, though a little earlier than the last Judicature Act, but which comes into operation a day later, viz., on the 2nd Nov., contemplates the High Court of Admiralty as the only Court of Appeal from the Admiralty Jurisdiction of the County Courts. Having arrived at this conclusion I thought it nevertheless my duty to confer with Sir James Hannen upon the construction of the Act. Не has given careful attention to the subject, and while he thinks the question is not free from doubt, expresses his opinion to me in language that I am allowed to cite :: 66 'My impression is that the effect of the 34th and 42nd sections of the Judicature Act 1873 is that you bring with you into the High Court all the jurisdiction and powers, including, that of hearing appeals from the County Courts, which you formerly possessed as judge of the Court of Admiralty, and that the effect of the 46th section is not to take away or limit any of those powers, but that it is merely permissive and prospective, and that until rules of court or arrangements be made by the judges of the High Court of Justice for the purpose of holding divisional courts for the hearing of appeals from County Courts, &c., your jurisdiction remains unaffected." Fortified by this agreement with my opinion I decide that this application is rightly made, and I grant it and I direct the registrar of the County Corurt to receive the security for costs offered by the plaintiff. Solicitors for the plaintiffs, Waddilove and Nutt. Solicitor for the defendants, Pritchard and Sons. EXCHEQUER CHAMBER. Reported by M. W. MCKELLAR, Esq., Barrister-at-Law. June 16, 17, and 18, and Dec. 21, 1875. Marine insurance-Time policy-Seaworthiness- At the trial the jury could not agree whether she was seaworthy at the beginning of the first voyage, nor whether unseaworthness was the cause of her loss. They found, however, that the plaintiffs did [Ex. CH. not know she was unseaworthy, and it was admitted that the loss was due immediately to perils of the sea. The verdict was entered for the plaintiffs. Held, by the majority of the Exchequer Chamber (reversing the Queen's Bench), that if the unseaworthiness at the beginning of the voyage be assumed to have caused the loss, the consequences, under the circumstances, were imputable to the plaintiffs, and should be borne by them rather than by the defendant; and that there must be a new trial. Per Lord Coleridge, C.J. (besides agreeing with the majority) that upon the assumption mentioned, the ship was not lost by perils insured against; and that a time policy implies a condition of seaworthiness. Per Brett, J. and Amphlett, B., dissentientibns, that the verdict was rightly entered for the plain: tiffs. THIS was an appeal by the defendant against a. decision of the Court of Queen's Bench, in discharging a rule to set aside a verdict found for the plaintiffs, and to enter verdict for the defendant or for a new trial, The following is a statement of the case: The action was brought to recover a total loss upon a time policy of insurance for twelve months, effected by the plaintiffs on the steamship Frances, in the sum of 58007., on ship values at 8000l., and machinery at 40007. The declaration contained a count on the policy for a total loss, and also the common money count. To the first count the defendant pleaded: first, denial of the insurance; secondly, denial of the plaintiff's interest; thirdly, denial of the loss by perils insured against; fourthly, misrepresentation; fifthly, concealment; sixthly, that after the making of the policy, the plaintiffs, well knowing that the ship was unseaworthy, without any justifiable cause, sent her to sea in such unseaworthy condition, and that the loss was occasioned thereby; seventhly, that the voyage was illegal, by reason of the ship having sailed with passengers without a passenger certificate, and that the policy declared on was effected by the plaintiffs for the express purpose of covering the ship on the said illegal voyage. And to the money count, never Indebted. Upon all these pleas issue was joined, and the plaintiffs demurred to the sixth and seventh pleas. The cause was tried at the London Sittings after Trinity Term 1873, before Mr. Justice Blackburn and a special jury, and the following facts were given in evidence or admitted on both sides. The plaintiffs are iron shipbuilders and marine engineers, carrying on business under the firm of J. and W. Dudgeon, at Millwall, on the banks of the Thames, an at No. 10, London-street, in the City of London, and are proprietors of a line of steamers trading between London and Gothenburg, and the defendant is an underwriter at Lloyds. The Frances was an iron screw steamer of 705 tons register, built at Amsterdam in the year 1858, and launched in 1859 for Spanish owners under the name of the Paris. Evidence was given at the trial on behalf of the plaintiffs that she had originally been constructed of good iron. The defendant gave evidence that, in or about the year 1868, the said vessel was lying at anchor in the harbour in Cadiz, and continued there un |