gislature, apprehending that the severity of the rule by which the owners were held answerable to the full extent for losses occasioned, without fault on their part, by the default or misconduct of the master or crew, might operate as a discouragement to commerce,1 has, by various enactments, established a distinction in this respect between the owners and the master, assigning a limit to the responsibility of the former, but leaving that of the latter untouched.

2

Of the justice and expediency of some limitation of this kind no reasonable doubt can be entertained; the principle indeed had long been recognized in the celebrated French Ordinance, in which it is expressly declared, "that the owners of ships shall be answerable for the acts of the master, but shall be discharged therefrom upon relinquishing the ship and freight;" and in imitation of this precedent, the Ordinance of Rotterdam, issued in 1721, contains a like provision, “that the owners shall not be answerable for any act of the master done without their order, any further than their part of the ship amounts to." The first English statute by which a limitation was introduced was passed in the year 1733, and seems to have been immediately occasioned by a dictum of Lord Hardwicke, that the owner of a vessel employed on general freight would be answerable for specie delivered to the master to be carried and by him embezzled. Accordingly it was against the occurrence of such a case that the remedy was principally intended, and it was enacted3 that no owner of a ship should be subject to or liable to answer for or make good to any person any loss or damage by reason of any embezzlement, secreting or making away with by the master or mariners, or any of them, of any gold, silver, diamonds, jewels, precious stones, or other goods or merchandize which should be shipped on board any vessel, or for any act, matter or thing, damage or forfeiture done, occasioned or incurred by the mas ter or mariners without the privity of the owner, further than the value of the ship with her appurtenances and the full amount of the freight due or to grow due for the voyage. And after providing in the second and third sections for con

1 See the preamble to the stat. 7 Geo. II. c. 15.

2 In Boucher v. Lawson, Cas. Temp. Hardwicke, 35.

37 Geo. II. c. 15.

tribution among the respective freighters, when more than one should have sustained loss, it was in the fourth declared that the remedy against the master or mariners should not be lessened or affected by that enactment.

Fifty years after the passing of this statute an alarm was again created among the proprietors of ships by a decision of the Court of King's Bench,1 that the owner of a vessel plundered by a gang of robbers in the river Thames was liable to make good the loss of the shippers, and as it was then discovered that the benefit of the limitation was not applicable to such a case, a further statute was passed by which the same limitation of responsibility was fixed as well in the cases before mentioned, as in that of robbery also, "although the master or mariners should not be in anywise concerned in, or privy to such robbery, embezzlement, secreting or making away with." A clause,3 moreover, was added, that "neither the master nor owner of any ship or vessel should be liable to answer for or make good any gold or silver, diamonds, watches, jewels, or precious stones lost or embezzled during the course of the voyage, unless the shipper thereof should insert in his bill of lading or declare in writing to the master or owner the true nature, quality and value of such articles.4"

Important, however, as were these enactments, the experience of twenty-five years more, during which the commerce of Great Britain had grown up with a rapidity and vigour almost miraculous, disclosed imperfections, which it was thought expedient to remedy by a new and more comprehensive statute. Accordingly, in 1812, an act was passed by which the limitation was still further extended, and minute provision made as to the mode of proceeding by parties interested; and as this act may be considered as superseding or incorporating the provisions of the former statutes with respect to all vessels, except such" as are used solely in rivers or inland navigation, or are not duly registered according to law," which are expressly excluded, it will be proper to give a concise abstract of its principal contents.

3 Sect. 3.

1 Sutton v. Mitchell, 1 T. R. 18. 2 26 Geo. III. c. 86. 4 Upon this clause it is to be observed, that it will not protect the master from the consequences of gross negligence, much less of positive fraud.

553 Geo. 3, c. 159.

6 Sect. 5.

2

After a recital that "it is of the utmost consequence and importance to promote the increase of the number of ships and vessels belonging to the United Kingdom, registered according to law, and to prevent any discouragement to merchants from being interested therein," and a reference to the former statutes which it is considered expedient to amend, it is enacted, 1. That no owner or part-owner of a vessel shall be liable to answer for or make good any loss or damage arising from any act, neglect, matter or thing done, omitted or occasioned, without the fault or privity of such owner, to any goods on board the vessel, further than the value of the vessel,1 and the freight due or to grow due for the voyage which may be in prosecution or contracted for, at the time of the happening of such loss or damage, under which term, " freight," are to be included the value of the carriage of goods belonging to the owner, and the hire of the vessel under charter-party, commencing within six calendar months after the accident.3 2. That where the loss shall arise by reason of several distinct accidents or acts in the course of a voyage, or after the end of one voyage and before the commencement of another, each loss shall be satisfied, according to the provisions of the act, as if no other loss had happened or arisen. 3. That nothing therein contained shall lessen or take away any responsibility to which any master or mariner is by law liable, though he be owner or part-owner of the vessel.5 4. That each individual sufferer may bring his action against the owner, although others have suffered by the same act or accident, or on the same occasion. 5. That where several persons shall have sustained loss, and the value of the vessel shall be insufficient to make full compensation to all, the owners may exhibit a

1 It has been held that whatever is on board a ship for the accomplishment of the objects of the voyage and adventure in which she is engaged, and belonging to the owners, constitutes part of the ship and her appurtenances; and that from the subsequent clauses it appears that this first section is to be read as if the words "with her appurtenances" were contained therein. Gale v. Lawrie, 5 B. & C. 156. And see 1 Hag. Adm. Rep. 109.

2 Sect. 1.

3 Sect. 2.

Sect. 3. The writer does not profess to understand this action, which seems as if purposely made unintelligible.

5 Sect. 4.

6 Sect. 6.

bill in equity against all parties claiming or entitled to recompence for losses arising from one and the same act or accident, or on the same occasion, in order to the ascertaining of the value of the ship, appurtenances and freight, and for payment or distribution thereof rateably among such claimants ;that to this bill the plaintiff shall annex an affidavit, setting forth that he does not collude with any of the defendants or other persons, but that the bill is filed for the purposes only of justice, and to obtain the benefit of the provisions of the act; that the defendants are, so far as he believes, the only persons claiming recompence for loss sustained on the same occasion; that the value of the ship, appurtenances and freight does not exceed a sum to be specified in such affidavit; and that the claims of the defendants exceed in the aggregate that value;—that on filing the bill the plaintiff shall pay into Court the value so,specified, no defendant being compellable to answer until this has been done, or security given instead thereof, if so ordered by the Court;-that for default in this respect the bill shall, at the expiration of one month, stand dismissed, with costs to be paid to the defendants;—and that if the bill be dismissed after payment of the money into Court, the money so paid in shall be apportioned and distributed by the Court among the several claimants. 6. That if it shall appear to the Court that the true value has not been paid in, an order may be made for the payment of a further sum, or the giving of a further security. 7. That the preliminary proceedings being regularly perfected, the Court shall take all such measures as shall seem just for ascertaining the value of the ship, appurtenances and freight, the amount of the losses or damages claimed by the defendants respectively, and whatever else may be necessary for doing justice in the suit, and for payment and distribution of the value among the several persons entitled.3 8. That a bill filed by one part-owner shall be binding on the rest, and that any sum paid on account of such damage, or of any cost incurred in relation thereto, may be brought into account among the part-owners as money disbursed for the use of the vessel.5

4

2

Upon this statute it has been decided that several part

2 Sect. 8.

• Sect. 10.

4 Sect. 14.

1 Sect. 7. Sect. 16. The other clauses contain principally regulations of practice merely.

owners, sued jointly for the loss of goods laden on board their vessel, were entitled in their collective character to the benefit of the limitation, although the loss was occasioned by the misconduct of one of the defendants, who was part-owner as well as master;1 that the value of the ship is to be calculated with reference, not to the commencement of the voyage, but to the time of the accident; and that in calculating the value of the freight, the whole sum payable in respect of that voyage is to be included, whether paid in advance or not, subject to such diminution by jettison or other losses as would have been made if the voyage had been completed.3

Of the exemption of the owners from responsibility for loss or damage arising from the incapacity of a licensed pilot having the management of the vessel, or from the absence of a pilot when required, unless it shall be proved that the absence was occasioned by the act or default of the master, we have already spoken in a former chapter; and here, therefore, we conclude our inquiry into the obligations and liabilities of the owner in respect of the carriage and shipment of goods, reserving for a subsequent discourse the obligations which relate to the payment of the freight and other charges, and are binding, therefore, reciprocally, upon the freighter.

L.

1 Wilson v. Dickson, 2 B. & A. 2.

2 Ibid; Cameron v. Raeburn, 1 Bingh. 471; Dobree v. Schroder, Sim. 291. 3 Wilson v. Dickson. 4 Vol. xiv. pp. 118, 119.

ART. VI. ON THE SALE AND ASSIGNMENT OF OFFICES, AND THE RECOVERY OF MONIES ADVANCED IN CONSIDERATION OF SUCH SALE OR ASSIGNMENT, OR OTHER ILLEGAL PURPOSES, AND THE DELIVERY UP OF INSTRUMENTS EXECUTED FOR ILLEGAL PURPOSES TO BE CANCELLED, AND JURISDICTION THEREIN OF THE COURTS OF LAW AND EQUITY RESPECTIVELY.

It is proposed to consider in this place what particular offices may or may not be sold under the present state of the law of England, and not to whom or for what estate they may be granted or created. The sale of certain offices