THE COURTS.

New Zealand Mail, Issue 850, 15 June 1888, Page 22

THE COURTS.

COURT OF APPEAL.

The Shaw, Savill, and Albion Company of New Zealand v. The Timaru Harbor Board.

(Judgment of Prendergast, C. J. Delivered sth June, 1888.) The plaintiffs are an English Joint Stock Company and owners of a Bailing ship named the LyttletoD. In June, 1886, this ship was in the harbor of Timaru about to take its departure for England with a cargo of frozen meat and other goods. One Robert Storm, in the defendants’ servioe as deputy-harbor-master and pilot, tva3 in charge of her, and she was being towed to Bea by the Grafton, a steam vessel.

Tbe plaintiffs’ case is that by Storm’s unskilful management she became a wreck in the harbor and the ship and cargo almost wholly lost; and that tbe defendants are, as the harbor authority and employers of Storm, responsible for the consequences of his unskilful management. The plaintiffs claim to recover for the damage done to the cargo as well as that done to the ship. Very many grounds of defence were raised; various non-suit points were raised and reserved, The jury found a general verdict for the plaintiffs, assessing separately the damages for the injury to the ship and the cargo.

The defendants moved to enter a non-suit on the points reserved, and also for a new trial on various grounds. This motion was removed into this Court and argued here. Besides what may be called the technical objections and defences, the defendants set np that the accident was not caused by any want of skill on Storm’s part; that they were not responsible for Storm’s acts; and that, even if they were, the accident was contributed to by the unskilful management of the plaintiffs’ captain and crew, or by the unskilfulness of the captain of the tug,' and that the defendants were not responsible for the management of the tug. Though I am of opinion that judgment must be given for the defendants on the ground of the want of notice of action, I think it expedient to give my opinion on the other points raised in the oase. The plaintiffs are incorporated in England under ‘The Companies Act, 1862.’ It was objected as a ground of non-suit that the certificate of incorporation produced by the plaintiffs was not evidence in New Zealand of the incorporation of the Company ; but Section XI. of 14 and 15 Viet. c. 99 mcet3 this objection. That section provides that any document admissible in evidence in England without proof of the signature authenticating it, or of the official character of the person appearing to sign the Dame, shall bo admitted in evidence to the same extent aDd for the same purnose in any of the colonies, without proof of the signature authenticating the same, or of the official character of the person appearing to have signed the same. The English Companies Act, 1862, section 18, made the certificate under the # band of the Registrar of Joint Stock Companies conclusive evidence in England of the incorporation, and by force of section 1 of 8 and 9 Vict.,.c 113, the certificate produced (inasmuch as it purported to be signed by the Registrar of Joint Stock Companies) would, in England, have been admitted in evidence without proof of the signature, or of the official character of the person appearing to have signed it. The defendants ore a Harbor Board under the Harber Boards Act, 1878. Section 227 of that Act imposes a limitation of three months within winch action must be brought, and provides that one month’s notice of action, signed by the plaintiff or his solicitor, shall he given to a harbor board ; that the plaintiff shall not recover if tender of sufficient amends has been made to him or his attorney before such action brought. A notice of action wa3 given by Mr Maude, a solicitor of the Supreme Court,

noting nuder instructions in writing from a Mr Ritchie (exhibit S.), who acted as an agent at Dunedin for tbe plaintiffs. The nature and extent of his agency Was.hot proved. ' It is certain that he bad no expreti authority to give or to employ a solicitor to give Such notices on behalf of the plaintiffs, or to commenoe actions on their behalf. I think that all that can be inferred from the evidence is that Mr Ritohie was appointed to act in Dunedin as agent in obtaining freight and passengers, and in facilitating the business of the plaintiffs’ ships while in port. Such an agency does not confer on the agent authority to sue or to give notice of suits in the plaintiffs’ name, or to employ a solicitor to do so. But the question principally argued on this point of the case was whether the plaintiff had not ratified and adopted Mr Ritchie’s act or Mr Maude’s. The only acts relied upon as ratifying the notico were the warrant to sue and the action itself. There is no evidence that the directors of the plaintiff Gompany were even made aware that a notice of action was necessary or had been given. The notice of action was given (of course in New Zealand) on the 9th of August; a warrant to sue (exhibit R.) was sealed in London by the plaintiffs on the 9th September, and the action itself commenced on tbe 11th of September. The plaintiffs contend that the warrant to sue, or, at any rate, the notion itself, is a ratification of tho act of giving the notice ; the reasoning, as I understand it is, that the action could not sucoeed unless a due notice had been given. Therefore, as the plaintiffs commence and carry on the aotion they must be deemed to have adopted the notice, though the directors were not aware that such a notice had been given or that it was necessary. Bat, to be effecSlve, the ra ifioation must have been, at any rate, some time before action, otherwise there was not a month’s notice before action.

The warrant to sue oannot, I think, be deemed an act of ratification. It speaks of an action already brought, and doeß not refer to, nor is it necessarily connected with, the notice of action.

The effect of a valid notice is to complete, not indeed the cause of action, but the right of action, and render the person to whom it is given liable to be sued for damages,- for which, without the notice, he would not have been liable ; if not daring the whole of the month, at any rate prior to the commencement of the action, the solicitor or attorney should have been adopted, otherwise the solicitor or attorney was not one to whom amends could be safely tendered and paid. In my opinion the adoption of a month’s notice of action must take place at least one mouth before the commencement of the action. The principles upon which there can be no ratification at all of such an act as a notice of action, or rather that the notice operates only from the ratification, and that there is no relation hack to the time of the giving the notice, are stated in Smith’s Mercantile Law, p. 151, ninth edition ; Story on Agency, ninth edition, sections 245 et seq and 440. In In re Isaacs (3) Mylne and Graig (319) it was held that a demand of payment made by an unauthorised person is a nullity. If so, such a demand cannot be ratified. In Bird v. Brown, 4' Exch. 786; Lyell v. Kennedy, 56L.J. Q.B. 303, it was held that one cannot ratify and adopt an act when the time and circumstances are such that he could not himself do the act which he wishes to ratify. In the present case the three months’” limitation had expired within a day or two when the acts relied upon as ratification were done, and consequently a month’s notice could uotthen have been given by the plaintiffs themselves. Sqe also Cook v. Tullis, 18 Wallace United States Supreme Court, p. 338, where the •principle is recognised and acted upon. I regret, therefore, that I am forced to the conclusion that such a notice of action as is required by the statute has not been served by the plaintiffs or their solicitor. The contention that the notice was not well served, in my opinion, wholly fails. The chairman is not head of the corporate body ; there is, indeed, no head to this body. Even if tbe chairman were the head, there is no statutory rule or rule of the common law, or any rule, of practice in the Supreme Court prescribing that such notices are to be served on the head ; nor is there any rule regulating how the service of such notices must be made. . The Act provides that the notice is to be given to the defendant. It was given to one of the body, and that one, by virtue of being acting chairman, apparently treated by the Board as in some respects a representative of the body. It also reached the secretary’s hands, and was served at the proper office of the Board. It was, I think, well served. If it were necessary to rely on Mr Ritchie’s authority, or if the ratification supposed to be effected by the commencement of tbe action were the ratification of Mr Ritchie’s instructions, then I should agree with the defendant’s contention that Mr Maude’s second notice of action—the one relied upon, went beyond his instructions. Mr Ritchie’s instructions mentioned only the ship, not the cargo. However, if the action be a ratification of the notice itself that objection is disposed of. Then it was contended that a ship-owner cannot sue in respect of the cargo. The captain and the ship owners are, however, bailees of the cargo ; they have a Bpecial property in it and lien on it for tho freight, and can sue, in an action in personam, a third person oausing damage to it. Mangan v Leary, 3 N.Z , J.R ,N.5.,C.A., p. 10 ; Blackstone by Stephens, vol. 2, p. 75; Angell on Carriers, fifth edition, section 348; Story on Bailments, paragraph 394. It may he that in an aotion in rem in tho Admiralty Court there is a rule of practice which prevents this in that Court. See t.he ‘ Milan,’ per Dr Lushington, 31 S.J. Admiralty 105; though why it should be so does not appear. That the owner of this ship docs not in practice sue in Admiralty or elsewhere, for the damages done to cargo unless he ia the absolute owner, may be accounted for by the fact that ordinarily persona seek to secure themselves only, and the ship-owner would loave the cargo-owners j or their insurers to look after their own interests. 4 I Dr Lushington gives no other reason why the ship owner as bailee should not bo competent to sue as well for bis ship as the oargo I of others which lie is oarrying. than the fact >, that a reference has always to be made to

assess the damages and he says ‘ restitution tan be made only to thpse -who are parties to the suit, and is proved or admitted.’ But substantially this would be so in an action at law by any bailee, for the jury would assess the damages. A bailee of a barge has be held’ competent to sue in Admiralty for, damages to his barge, and the damages caused by collision : see the ‘Minna,’ L.R. 2, Ad. and E. 98; he was not allowed to take out the damages without the oonsent of the bailor.

In the Supreme Court of United States in an Admiralty cause it was considered that tbe ship-owner might sue in such a case, not only in respect of the ship, but the cargo; see ‘The Propeller Oommeroe,’ Miller’s United States Supreme Court Decisions, Vol, 4,, p. 622. In the judgment it is said ‘one of the objections was that the Court erred in allowing damages for the injury to the cargo as well as tho ooat; but the point has been -so often ruled that the carrier, who is responsible for the safe custody aud due transportation of the .goods, may reoover in cases of this description, that we do not think .it necessary to do more than to express our concurrence in the rule adopted by the Circuit Court. It is to be observed that Dr Lushington only says that he does not know that there ia such a ‘ practice.’ If is oertainly remarkable that suits by cargo owners either alone or with the ship are rarely reported ; it may, however, be as Dr Lushington seems to suppose, that the cargo owner leaves the matter to be fought out by the ship, as tho owners know all the facts and have control over the master of the ship and the crew, aud are therefore better able to conduct the litigation. Though the practice in the English Admiralty Court njay be otherwise, I am of opinion that in this Court the ship, owner may sue in respect of the cargo, holding, of course, the proceeds of the judgment so far as it is in respect of the cargo, for the benefit of the cargo-owners. The limits of the harbor of Timaru were defined by Governor’s Warrant under section 9 of the Harbors Act 1878, on 22nd February, ISB3 ; the place where the Lyttelton was wrecked was within the limits so defined; the vessel bad just left the wharf and was in oourse of leaving the harbor. Mr Storm was the acting harbor master ap. pointed and employed under section 49 of tho Act by the defendants, the harbor master himself being temporarily absent. Storm was also pilot appointed and employed under the same section, but had not been examined and was not a licensed pilot under section 76 of the Act. He was paid a salary by the Board for tbe servioes performed by him. •'

The Board owned and employed a tug to tow vessels when necessary, and when the tug was used for the purpose a special charge was made beyond the ordinary harbor dues. No pilotage district attached to the harbor of Timaru was defined under section 75. It is undoubted that the practice was for Storm, as servant of the Board, to pilot vessels in and out of the harbor, and that no speoial payment was made for this pilotage ; none to him as pilot and none to the Board beyond the port charges. The fact seems undoubted that the practice of the Beard was to undertake the piloting without extra remuneration. Certain by-laws and regulations were proved at she trial; it did not appear that there were any others in force affecting the harbor; nor was there any Bpecial Act other than the * Harbors Act 1878’ affecting this, harbor which bare on the questions arising in the case. The limit over which the Board has jurisdiction is really an extensive portion of an open roadstead ; ordinarily a harbor master or other officer of a harbor authority, however denominated, would not have the duty of navigating the ship, even within the harbor ; such officers direct where a vessel is to lie and the master or pilot navigates the vessel; but the harbor may be such as to require a different practice. The contention for the defendants is that the Board had no authority under the Act constituting it to undertake the navigaoing of the vessel within the harbor ; that it did do so by its servant Storm is, I think, indisputable. The jury found, and were I think justified in the conelusions it must have arrived at, in fiading the general verdict for the plaintiffs, that the wreck was caused solely by the mismanagement of Storm, and th.it he was in fact acting as a servant of the Boird in charge of the vessel.

Now was it competent for the Board to employ Storm to navigate this vessel from the wharf to the limits of the harbor, when the sole object was to set the vessel on her course to sea, and not for ■ tbe mere purpose of removing her from one part of . the harbor to another on grounds of convenience? With regard to some harbors the harbor officers would not navigate the ship even within the harbor (see per Sir James Hannen in the ‘ Rhosina’ 54 L. J. Pr. D. aud A. p. 44). It is no part of the duty of the harbor master, as such, to navigate the vessel. But a harbor may be of such a. character, as in the present case it is, that in the absence of a provision of licensed pilots the harbor Board ought if required to do so by the ship, or even whether the ship wished it or not, to take charge of the navigation within its limits either by the harbor master or some other officer. The Lord Ordinary in his judgment in Holman v Irvine Harbors Trustees, 4 Scotch Court of Sessions Cases p. 409, refers to" the necessity for this in some harbors. In practice this Board has done so by providing, pilot Storm, and the question is what is therein the Act which authorises the Bonrd^_or-allows a want of authority in the Board to perform this ser--1 vice by its officer. As already pointed out the Board is empowered to appoint pilots at salaries to be paid by the Board, section 49 ; this is not the same power as that .of . licensing pilots provided for in section 76. The Harbor Board is empowered by sections 76 et seq to license pflots, fix what their remuneration shall be, and fix pilotage rates, aud determine the "nature of services for which such, rate 3 shall be payable and tho amount to be paid for detention of pilots on board vessels under quarantine or otherwise. 'Jhe defendants contend that as they have not exercised the power, that is, have not made a by-law fixing-pilotage rates, they are not legally competent to undertake the performance of tbe-service of piloting, and Consequently that though in fact they pi ay

have undertaken the performance of the service, the Board, as such, is not liable for the neglect or uuskilfulness of those they employed in the performance of this service. If the Act had provided that pilotage rates when fixed and levied should be specially appropriated to the maintenance of tbe pilot service there would have been more ground for this contention, so if there had been no other provision for the appointment and remuneration of pilots than that in section 76. But the pilotage rates if fixed and levied are not specifically appropriated, but form part of the general fund applicable to all harbor purposes, and as already noticed, tbe Board has by section 49 a power of appointment of pilots and other officers, which would include a deputy harbor master and of remunerating them independently of that given by section 76. Considering the nature of the harbor over which this body has jurisdiction, and the powers expressly conferred upon it (for the Act is to be deemed a special Act as to the Timaru harbor), I think the Legislature must have intended that theßoard should have power to provide for the piloting of vessels within its limits, and that the power to charge pilotage rates was optional only. The Lord Ordinary iu the case above cited says, such a duty and obligation, that is, of providing for piloting, seems to be a neces. sary consequence of the existence of a harbor to which access is obtained by a navigable river channel, and certainly of the existence of a bar harbor in which the banks are liable to shift, with the effect of altering the channel more or less from time to time. Harbor trustees have generally the duty of making provision for pilotage, and are usually authorised to levy rates in return for the services.

With regard to tho Timaru harbor it is manifest from inspection of the ohart, and the other evidence, that an efficient pilot is absolutely necessary, not only in the interest of the shipowners, but of the harbor authorities. This Board for some reason not made apparent has not chosen to make or levy pilotage rates, possibly because satisfied with the rates levied as port charges, nor to provide licensed pilots. Tho pilotage rates if fixed and levied would not necessarily go to the harbor fuDd ; they would not, unless the Board provided to the satisfaction of the Government for the maintenance of the pilot and general harbor establishment [S. 173] : This may be a reason why the Board has thought fit not to exercise to the full extent the power to fix pilotage rates. But the Board has to some extent exercised that power by adopting schedule b of the Governor’s Harbor Bye-laws, though it has not fixed general pilotage rates. It has then by its officer performed the service, but made no special charge for it. lam unable to distinguish the position of this Board from that of the commissioners in the Court of Sessions case above cited, the only difference being that in that caße the commissioners levied pilotage rates, and here none are levied. Port charges, however, are levied. It cannot bo contended that Storm wa s a volunteer, or that he, or tho Board when he piloted the vessel, are to be treated as performing gratuitous services ; manifestly the master of the ship received no notice that this was the then position. The master, in accordance with the regulations, applied to the defendants for the services of a pilot, and Ike defendants supplied him with the services of the pilot they employed for similar purposes. An act done in performance of a public duty cannot be said to be gratuitously performed, becanse the person whose duty it was to perform it chooses not to demand the remuneration which he might demand if he chose; and such is the position of the defendants ; and I am of opinion tho defendants are liable for Storm’s acts. Whether he was acting as deputy-harbour master or pilot, is not material ; it is clear that he was authorised by the Board to act. I think it unnecessary to discuss the evidence given on either side, as to the cause of the aocident. The learned Judge who presided at. the trial ha 3 reported that he was not dissatisfied with the verdict. For my own part, having heard the evidence discussed at the argument here, and having read the notes of the evidence since, I am satisfied that the evidence was such that tbe jury might reasonably have found as they did. I express no opinion as to the effect it has had on my own mind further than this.

I therefore conclude that a new trial ought not to be granted on the ground that tbe verdict is against the weight of evidence. As to the application for the new trial on the ground of the discovery of new evidence, in my opinion the evidence is not such as, if it had been given at the trial, it would have altered the view which the jury must have taken in order to find as they did ; consequently the verdict ought not to be disturbed on this ground. As to the misdirection imputed to the learned Judge with regard to the measure of damages, it seems to me that both sides must have assented to the jury giving as damages the actual value as agreed ; and treated the value of the salvage as immaterial. It appears now that the salvage realised about £853, the total value of the property damaged being nearly £32,000. Evidence was given at the trial that the salvage bad been sold, either by oversight on the part of the plaintiffs, because of a presumed assent on the part of the defendants, that proof of what the sale realised was not necessary, such was not given. Even if I had formed a different opinion as to what must be deemed to be the result of the conduct of the case at the trial, I should have concluded that It was a case where the Court might have given the plaintiffs the option of having the verdict reduced by the amount of the net proceeds of the salvage ; and the plaintiffs at the argument in this Court assented to this if driven to it. As the majority of the Court are of opinion that judgment should be for the defendants, on the ground of the want of notice of action, the defendants are entitled to the general costs of the actios, which we fix at £3OO and disbursements, and £265 costs in this Court, and the expenses of such witnesses and proof as are exclusively attributable to the defence of want of notice of action; and the plaintiffs to have the expenses of such witnesses and proof as are attributable exclusively to the other defences ; expenses to be taxed by the Registrar of the Supreme Court at Christ* church.

(Judgment of Richmond, J.) In this case I haver come to the conclusion that the defendants’ objection to the sufficiency of the notioe of aotion must be allowed. Tbe 225th section of the Harbors Act, 1878, enacts that no plaintiff shall recover in any aotion Commenced against any Harbor Board or person for anything done iu pursuance of the Act uiiless such action be commenced Within three months after the ftet and unless notice has been given to the defendant one monttx before such action is commenced of such intended aotion, signed by the plaintiff or bis solicitor, specifying the cause of such action. I am of opinion that Mr Maude was not, at tbe time ho gave the notice of action relied upon, duly authorised as the plaintiffs’ solicitor, to give such notice ;-and, ■ further, that his act was not - ratified by his subsequent appointment as the plaintiffs solicitor. As to t'-e first-point, I concur with the j Chief Justice that Mr J. M. Ritchie could not empower Mr Maude to give notice of action. The evidence of the nature of Mr Bitchies employment, and the extent of his authority as an agent of-the plaintiff Company, was very slight. It appeared that he was one of the agents at Dunedin authorised to transact the shipping business of the Company, the Company having other agents in other ports of the Colony ; and that he did not, at, or before the date of the notice, hold any power of attorney to sue or defend for . the Company. No doubt it is extremely inconvenient that ship owners doing business here should be without an agent fully empowered to protect their interests ; but it is an inconvenience for which, if they suffer from it> they have only themselves to blame, as it can be provided against by a proper powenof attorney. If Mr Ritchie’s authority constituted- -Mr Maude.,solicitor of the plaintiff tor this purpose, it is implied that either Mr/ Maude or Mr Ritohie himself must-have had p’owetym behalf of the defen. dant Company to accept"'or refuse a tender of amends. This seems to be an inadmissible supposition. Independently of the supposed authorisation by Mr Ritchie, no evidence was tendered to show.that Mr Maude was, at the time he served the notice, solicitor for the plaintiff Company. The next, question, therefore, is whether his act was ratified by the authority given him on the 9th September, 1886, under the common seal of the. Company, to bring this action. Several .arguments may be put forward*irrfavbßbT-an affirmative answer to that question. Aucona v. Marks ; 7H. and H, 656 ; and other cases, show that an aotion brought without authority may be adopted by the person in whose name it is brought ; and it may be further argued that notice of action where essential, being a mere accessory proceeding, is, like,the aotion itself, capable of subsequent adoption. Extraordinary power was at one time attributed to attorneys of the superior Courts at Westminster of binding parties, whether plaintiffs or defendants, by proceedings taken in their name ; and, although this doctrine is narrowed by later decisions, yet in Reynolds v. Howell, L.R., 8 Q. 8., 398, Mr Justice Blaokburn expresses his opinion ‘ that if a plaintiff, after action brought in his name by an attorney without authority, hears of it, and does not repudiate it, he will be supposed to have ratified the attorney’s act.’ But the argument founded on these considerations overlooks the effect of the statutory provisions. Section 225 of ‘the Harbours Act, 1878,’ is in a common English form, and implies that the solicitor giving the notioe shall have a present authority empowering him to accept a tender of amends. To constitute a good tender it must, as laid down by Baron Parke in Kirton v. Braithwaite, 5 L. J. Ex. 165 (S.C. 1 M. & W. 310), be made to the plaintiff, or to the agent of the plaintiff authorised to give a receipt for the money. The statute contemplates that, during tho whole period intervening between notice given and action brought, the defendant shall have the opportunity of making a valid tender. But Mr Maude had no authority to receive a tender until 9th September —that is, until two days before the writ issued. It is said that a tender might have been made to Mr Maude or to Mr Eitchie, and that the plaintiff Company, if they adopted the notice, would be bound by that tender, and if they did not adopt the notice would lose their right of action. But suppose the tender made and accepted, could the defendant Board be expected to make what might turn out to be an unnecessary payment to a stranger ?—For the party whom the solicitor assumed to represent might not be intending to sue. Or suppose that, after making such a payment or tender, an authorised solicitor should give a notice within time, what would be the position of the defendant? Ia he to tender again, and pay again ? Or suppose the case of several notices of action delivered by different solicitors volunteering to act, or named by different agents, all without present authority to act in the matter, is a defendant to tender to each of the solicitors on the chance tliat his notice may be adopted ? It appears to me that the want of a presently authorised solicitor must deprive the defendant of the opportunity of making a tender ; and that this is a substantial disadvantage, and not a mere question of costs, which might be a.ljusted by the Court, is shown by the case of Jones v. Gooday, 9 M. & \V. 736, deciding that the tender of sufficient amends under a statute exactly like the Harbors Act is an answer to the action without bringing the money into Court-—so that a plaintiff who refuses a sufficient tender gets nothing. The text-writers, Story and J. W. Smith, give a number of instances in which ratification by the party interested of an act done by a stranger on his behalf is not allowable ; but their enumeration of caseß does not pretend to be exhaustive, and neither writer attempts a definition of the class. There is, however, \ one general principle running through all the oases—namely, that ratification is not admitted where the validation of the Act by relation would put the opposite party iu a worse position than he would have been in had the Act been originally valid.

There is also a point, not explicitly treated of by either of the writers referred to, which arises where the act to be ratified ought to be dune within a limited period, there is no ratification within the period. Thus, in Bird v. Brown, 4 Exch, 786, S.C. 19 L.J. Exch, J 55, it was held that an unauthorised

notice to stop in transitu cannot bo ratified after the transit us is ended. this principle, it appears that tho Company’s assent to the notice came too late. - No doubt it may be said that a notice to atop in transitu is a substantive act in the law divesting property. To that it is, I thiu'k, a sufficient reply, that the appointment of-a-solicitor to glvendtioe Of action lindef the statute is also a siibstantive act in the law; constituting thd solicitor the agent of the party to accept a tender of amends. It is a challenge to the opposite party analogous to a demand of payment, or to a demand of delivery to found an action of trover, and like these,acts, to make it effective, a* pfes'eiit authority. It is not satisfactory .to decide a cause of such magnitude on so narrow a ground, especially as the Judges are not unanimous. As to tho issues of fact, I see no sufficient reason for disturbing the- verdict. It was proved beyond a doubt that the vessel overran her anchor. Tho suggestion that she must have foundered thrnjugh^tko-optratio u of a prior cause'which led to tho necessity of anchoring—l refet to the supposition that some valve or valves in connection with the refrigerating apparatus had" boen left open—was fully considered .by. the ’ jury, and was rejected by them, I think rightly. The vessel’s appearance of being down by the head might, Ishouldsay, beotherwise accounted lor than by supposing that water was rapidly entering her fore-body. V Neither do I see any reason to find fault with the findings of the jury on the various questions relating to seamanship raisied in the case. In particular I hold chat ,they were right in absolving the master of.the Grafton from the charge of negligence* It appears that the safety of the sh p required that she should be taken out in a course eastward of north. But the Grafton, when on Stoim’a order she started towing, was heading to the west of north, and was nearly-at rightangles to the ship. It further appears that the Grafton was unable to get properly ahead of her tow, in spite of her master’s efforts to keep to the eastward, and that the loss of the shin was primarily attributable to this cause. The responsibility for the had start made, rested, I think, with Storm, who ought to have seen the Grafton was in a right position before she began towing; Storm was, I consider, within the limits of his duty as acting-harbormaster in undertaking to direct the course of the vessel whilst leaving the harbor. The mooring and unmooring of vessels in the port is confessedly subject to the direction of tho harbor-master. In a port such as Timara the moment the moorings are let go something mu3t be done to control the move men ta-of the ship ; and, until she is fairly at sea tNe manoeuvres must be subject to the control of the harbor-master in order to prevent danger to other shipping, or obstruction of the port.- When Sir James Harmen in the Rhosina (10 P.D. 24, 28; says that it is no part of the duty of a 'harbormaster to navis>at6 a vessel, hecertainly does not mean, as his dicisiouin that case shows, to lay down that the movements of a vessel whilst within the limits of a port are not subject to the control of the harbor-mast r, if in the interest of the port there is any reason that he should assume control. It was fully proved that according to the usage of the port the harbor-master at Timaru does assume control until the ship is clear of the

breakwater. .> ■ / -•-. ■ But as regards the right of the ship-owner to sue for loss of the cargo I still feel the doubt expressed by Mr Justice Johnston and myself in the case of Mangah v. Leary ; 3 N.Z. Jurist, N.S. 10. The common law is supposed to authorise the bailee in all cases to recover the Lull value of the bailment from a wrong-doer, and recovery by the bailee to oust thp bailor of bis separate action. Does the common law then give the bailor any, and, if any, what control over tho conduct of the bailee’s action ? Does it make any, and, if any; what.provision for the disposal of the damages? The dirßculty is aggravated by tho fact that the defence of contributory negligence in a case like the present is open to the defendant as against the ship-owner, but not as against the oargoowner—the case Thoroughgood v. Bryan having been overruled by the English Court of Appeal in the Bermiua (No. 2) 12 P. D. 58. :Thernleof the Admiralty appears to be that the cargo-owners shall sue separately—(The Milan 31 LJ. Adm. 105). : I should therefore, if a decision were called for, be disposed to hold that the verdi it must be reduced by the value of the cargo. li_ But l am alone in'this opinion, and .the verdict must be taken to be for £41,000.

(Judgment of Gilließ* J.) I regret to be obliged to differ from the majority of the Court in this case, more especially as I would have come to the same result in favor of tie appellants on the meiits of the case, did I mot feel myself bound by the verdict of the jury. In my opinion, ' i • 1. The incorporation of the plaintiffs below was sufficiently proved. 2. The notice of action seems to me to be sufficient, The general agent of a foreign shipping firm must, it appears to me, have ex necessitate the'right, without any special appointment for the purpose, to give such a formal notice as is required by the Act in order to conserve his principal’s rights. The notice of action required is not a conferring of rights upon the plaintiffs, but rather a limitation of ’.he plaintiffs’ rights already existing, and a conferring upon the defendants a breathing time within which-they may tender amends for a wrong already committed. Where a foreign principal is at a great distance, as in the present case, he cannot be supposed to know the various local laws which may interpose a barrier to his asserting his action in unforeseen contingencies, and I think it is no more than reasonable that his general agent in the Colony should be assumed to have power to take all formal atepß on his behalf to protect his pights until there has been time to communicate with the principal so as to enable the latter to decide upon the steps to be taken to assert his rights. If it b". not so, then in cases like the present a foreign principal wouldbe deprived of all remedy for a wrong done him merely by reason of h : s distance from tha scene of action. But even if it be.otherwise, and that the' general agent had the power to give the required notice, it seems to me that tht6 is exactly one of that class of oases in which the act of an unauthorised agent, or of an agent in excess of his powers, may be adopted and ratified by the principal, The

ruleisthus stated in Smith’s Mercantile taw 76dp. 151 2. ‘A bare act the effect of which would be to raiso a duty towards him (tho principal) from a third party, and subject that third party to damage for its non-per-formanoeoau never, if unauthorised at first, be confirmed by nny recognition ex post facto.’ ‘ln o her instances where no duty is raised on the part of a third person an adoption ex post facto is generally sufficient.’ It canyO't for One ttionlent be contended that the giving of ndtich o'f action raised dny duty on the part of the defendaiitS, dr that it subjected them to damages for non-per-formance of a duty. 'lt conferred on the defendants the privilege of having a certain time within which to tender amends for a wrong in respeot of which they might otherwise have beeuimmediately sued. So, also, in Story on iigency. 960 and 245, it says, and 440, * Where an act is benefioial to the principal, and does not create an immediate right to have some other act or duty performed by a third person, but amounts simply to the assertion of a right on tho part of the principal, there the rule (that the principal may adopt or ratify) seems generally applicable.’ The giving notice of action in tho present case Was clearly only an assertion of a right on the part of the principal, involving no act or duty to bo preformed by the defendants. Neither did it defeat any estate or right vested in tho defendants ; it only conserved to the plaintiffs existing rights of action for wrongs alleged to be done, and I therefore see no reason why the plaintiffs should not have the right to adopt and ratify the aots of their agent in giving notice of action, even if the agent exceeded his authority in doing so, which, as I have already said, I do not think he did. It seems to me, therefore, that the giving of notice by plaintiffs’ agent, even if beyond theßcope ot his authority, was an act which the plaintiffs might adopt, and which they did adopt by bringing their action in pursuance of the notice. It was argued that the notice being given by an unauthorised party, the defendants cuuld not safely tender amends to that party, and so lost the benefit of the privilege intended to be conferred on them. This seems to me fallacious. If the defendants denied the committal of the wrong then they would not desire to tender amends. If they admitted tho wrong, and tendered amends to the unauthorised agent, the principals must either* adopt or repudiate the agent’s conduct in whole, in giving notice and in accepting or refusing the tender made. They could not adopt the notice and repudiate their agent’s action as to the tender. If they repudiated both, then they would be too late in giving notioe, and thereby lose their right of action. I see no reason to doubt the sufficiency of the notice of action, either on the ground of the authority of the plaintiffs’ general agent to give it or on the ground of its subsequent adoption by the plaintiffs by bringing their action. 3. The acts or omissions of the defendants’ officers complained of, appear to me to be in the nature of errors of judgment rather than acts of negligence, but the jury having found otherwise, I think the Court has no power to interfere with their findings except by granting a new trial. 4. Assuming, however, that negligence and not merely error of judgment was proved, it appears to me that the negligence was as mnch that of the master of tho Grafton ns of the harbour masts', or pilot. But the jury having had that question plainly put to them, and having found otherwise, I do not see how tha Court can now imerferewith the verdict, especially when the Judge who tried the cause is not dissatisfied, with the verdict. Under these circumstances I see no sufficient grounds for setting aside the verdict and judgment for the plaintiffs.

Monday and Tuesday, June 5 and 6. (Before their Honors Mr Justice Richmond, Mr Justice Williams, and Mr Justice Ward.) BE JACKSON (A BANKRUPT) EX PARTE HALL. This is an appeal from a decision of his Honor Mr Justice Gillies, delivered at Auckland on the 23rd April last (reported in 6 N.Z.L.R. Sup. Ct. 314), to the effect that the case of a solicitor receiving costs as agent for another is different from the case of commercial transactions, involving mutual credit; and that the bankrupt was denuded of all right to property from the moment an act of bankruptcy was committed. Mr Quick appeared for the appellant (Hall), and said the case disclosed that on the 17th January last Jackson was adjudicated a bankrupt upon a creditor’s petition filed on the 9th of the same month, founded upon an act of bankruptcy committed in the preceding December : That Hall, without notice of any act of bankruptcy, on the 16bh of January last, received LB3 19s 3d on behalf t f Jackson at Wellington, being amount of costs due to Jackson by a third party ; that at the time Hall received this money Jackson was indebted to Hall in the sum of LllO 16s 8d upon balance of an account current between them ; that Jackson instructed Hall to collect and receive this money, and never cancelled the authority. Counsel argued, on this state of facts, that Hall was entitled, under section 112 of the Bankruptcy Act, 1883, to set-off the LB3 19s 3d against the LllO 16s Bd, and to prove on the estate for the balance. In support of this he quoted the cases of Elliott v. Turquand, 7 App., Cas. 79 ; in re Gillespie, ex parte Reid,, L.R. 14, Q.B. Div. 963 ; and Hulme v. Muggleston, 3 M. and W. 30. Mr Theo. Cooper, for the Official Assignee, raised two questions —Ist, Whether the provisions of section 112 protect the appellant in the receipt of the money ; and, secondly, how far such receipt is affected by section 28 of the Bankruptcy Act, 1883, Amendment Act, 1884. As to the first juestion, counsel urged that section 112 is ambiguous, and must be construed by the general policy of the Act, which he stated to be the securing of an equal distribution of the assets, and with that view the doctrine of relation back was introduced. The omission from section 112 of the proviso to the set-off seefiop 39 of the Imperial Act of 1869,

s’eetiofi? 38 of tfe ti&p&ifot Act of 1883', Aren't to' slip'vf ‘ that' a 1 stricter' fine’ must be drawn’ to' that laid doVn! irf the' English cases ; for iristaiM,’ aii wcecution ci'editor who completes this eoce'cutioliwithout adjudication following within! a! limited time is protected by the English Act ; but his Honor Mr Justice Gillies held that no such protection was afforded by our Acts. Section 112 must be read ii§ de’se'ribklg the time at which the line tff set-dff irtust bd drawn to < be fit the tinier o'f-the' baiikr'ifp'tcy# wjhiehy by Virtue o'f , the' , relation bakflt* section 53, . wo'ujd- - be' id the ,poirim!itfcal of the first act of bankruptcy; TWO mailings can be put upon tho abSCiiotS of tho proviso ; on the oiic hand it-might be contended that" It”‘leaves the line more extended ; on tho other that it limits it by the efi’eeb of the relation back clause. From statements in the judgment in Elliott v. Turquand it may be inferred that without something in the section to import the words “ notwithstanding a previous act of bankruptcy,” tho line would bo drawn at the line of the act of _[So in re Gillespie, Mr Justice Gave sbaEo's- tho. law to bo tliatdealings are stopped at the time of bankruptcy. The relation/ back clause takes effect unless transaction is protected ; see Pearson v. Graham,; 6 A. and E. 899, and Thomas v. Cohen, 2 N.Z.L.R., S.C. 352. Therefore under section 112 the time when tho account closes is at the commencement of bankruptcy, as defined by the effect of the relation back section. Under the second question, the receipt of the money by Mr Hall was the transaction ; and this having taken place after the filing of tho petition, it is not protected by section 28 of the Act of 1884. Counsel intimated .that he did not intend to endeavor to support the first point taken by his Honor Mr Justice Gillies. Mr Quick in reply : The case of Pearson v Graham turned upon a question as to sufficiency of pleading. The case of Elliott v Turquand shows that the relation back clause does not apply. This is followed and strengthened by in re Gillespie, which was decided under the English Act of 1883, containing section 49, similar to our section 28 of 1884. Section 28 of 1884 is a restrictive clause to the relation back section, and does not touch set off'. If the case is held to be affected by section 28, then the transaction with the bankrupt took place before the filing of the petition, because the appellant could have had no communication with the bankrupt after the committing of the act of bankruptcy, upon which the petition was founded, and the filing of the petition, because the act of bankruptcy is departing out of New Zealand for foreign parts. As to the interpretation of the word “ transactions,” see inter Waugh ex parte Dickin, L.R. 4, Ch. Div. 524, and Krelil v. The Great Central Gas Company, L.R. 5 Ex. 289. Moreover, if the case is not within the set-off , section it would fall within section 84 of the Act of 1883, which corresponds with subsection 1 of 95 of the .English Act of 1869, under which subsection the Lord Justices in the concluding paragraph of the judgment in Elliott v. Tarquand say that transaction would have had to be considered bad it not fallen under the set-off section. As to the time when the line is to be drawn under section 112, it requires a judicial decision to fix it, as did the sections in the English Acts of 1869 and 1883, and according to JUlliott v Turquand the line must be drawn according to the particular circumstances of each case. The section 112 contains internal evidence that the position of parties is unaffected until adjudication, because one of the alternative conditions upon which the right of set-off depends is that the party seeking to prove is indebted or liable to the bankrupt, and 'this liability to the bankrupt is not interrupted until ad j udication, because until then the debtor can give a valid discharge, because by section 22 of the Act of 1884 the property does not vest in the Assignee until the adjudication.

The judgment of the Court was reserved.

Monuay, June 11

(Before their Honors the Chief Justice, Mr Justice Richmond, Mr Justice Williams, and Mr Justice Ward.) KERB V. RHODES.

In this case, an appeal by Kerr against a decision of Mr Justice Gillies, in an action respecting the sale of the patent rights of the Hooker, gas light, their Honors affirmed the judgment of the Supremo Court, except that thereof as ordered payment by Rhodes to Kerr of the sum of L 39 16s 3d for damages, but subject to the following conditions, namely That the respondent do, within one calendar month', or within such further period as the Supreme Court may order, procure the execution of a release of all rights under the agreement of 18th March, 1887, in the proceeds mentioned, made between- the .respondent and Messrs Craig and Kelly, and within the same period, or such'-'further period as aforesaid, deliver such release to the appellant or his solicitor, and in default of performance of this’ condition, judgment in the action is to be entered for the appellant with costs in the Supreme Court on the highest scale as on a claim for LIOOO, with the same extra allowance for costs of trial as is awarded to the plaintiff by-the_Supremo Court, and with the costs of this appeal ; and in the event of the performance of the condition aforesaid, it was further ordered that each party should pay his own costs of the appeal. And it was further ordered that costs in the .Supreme Court should be taxed as on A claim of LIOQO. Mr Ed-

wards obtained leave to appeal to Privy Council. eAn'CTO’o'D AND go, v. the mayor and corOF DUNEDIN. The judgment of the Supreme Court held- that tlie respohdenfe were not guilty or hr the’ matter of the flooding of SargOod andi Go.-’s- premises.- The Court affirmed tiltf decision;.- It Was cfecide 1 that the Court should Sit' to-morrow week to decide the question of blowing Sargood and Co. to appeal to the Prit'y Council. IN RE GRAY. lii this Case a bill of costs was remitted to the Registrar' of the Supreme Court with directions' aJs to tasiaiiolX Austin V. the official fGS®@ is? the ESTATE OE BRAY. -y The judgment of the - Court iii Christchurch was affirmed as! to part ail'd varied' as to other part. No costs were? gi'v On' to either party. RE JACKSON RE H. HALL. The appeal of Mr Henry Hall, solicitor, against the decision of Mr J ustice Gillies ill tho case of a claim made by the Official Assignee at Auckland, was allowed, with costs in both Courts. Mr Justice Gillies, it may be explained, decided that Mr Hall was not entitled to set off a sdm of LB3 19s 3d, being costs received by him as agent for Samuel Jackson, juii.-, solicitor, who was made a bankrupt after leaving the Colony, against a sum of LllO due by the bankrupt to Mr Hall. Reports of these judgments will appear in the New Zeaxand Mail.

BANKRUPTCY COURT. Monday, June 11. (Before liis Honor the Chief J ustice ) APPLICATIONS FOR discharge. Re J. W. Donald, carpenter. —Mr Gray appeared for the debtor ; Mr Thompson represented several opposing creditors. The Official Assignee now informed the Court that he was satisfied that the bankrupt had given the fullest information regarding the property in England which had been left him by his father. Mr Thompson said after that statement, he would not oppose the application. His Honor granted the discharge. Mr Gray applied that the costs of the bankrupt’s solicitor should be allowed out of the estate. Granted.

Re Arthur Gilbert, laborer.--Mr Matthews opposed the application on behalf of several creditors. His Honor expressed great surprise that the bankrupt, who had a wife and one child, should have filed for such a small sum as L 39. Ho appeared to have ni> reason for so doing, and he (liis Honor) could not understand how he had the face to come to Court and ask for his discharge. He expressed his intention of adjourning the application in order to give the debtor an opportunity of paying his creditors. Mr Matthews asked that the debtor’s discharge should be refused. His Honor decided to refuse the application. Re Philip A. Rive, draper.—The Official Assignee stated that this was a most satisfactory case, and he would not offer any objection. His Honor granted the discharge. Re James Hamilton, blacksmith. —Discharge granted. Re A. H. Hansen.—The debtor did not appear, and his Honor adjourned tho application until next sitting of the Court. •" At the request of the Official Assignee the following applications were postponed until next sitting—Edward Tamplin, Edward Powell, Alfred W. Cotterell, A. H. Hansen, Mary Mason, William Skinner, and William French. CLOSED BANKRUPTCY. On the application of the Official Assignee, the following bankruptcies were declared to be closed :—Margaret Scutt, Thos. Ritson, Chas. H. Gough, John J. M Stanford, Alfred Rickman, Annie O.ven, Albert Peters, James Smith, James Scrimshaw, and Alfred Balchin. OTHER APPLICATIONS. Leave was granted to the Official Assignee to sell book debts: and close accounts in the following estates :—A. G. Price, P. A. Rive, F. Taylor, Wm. Eades, John H. Smith, Benjamin Cummings, S. Soffe, F. B. Chapman. In the estates of F. J. Preston and G. W. Hobbs, leave was granted to extend time for proving certain claims against the estate. MAINTENANCE. An application by Mr Devine that James Madden should be allowed maintenance out of the estate was refused. A similar application with regard to Alfred Rickman, made by Mr Jellicoe, was also refused. solicitors’ pees. I An application bj Mr Jellicoe, that the sum of LlO should be allowed him as debtor’s solicitor’s costs in the estate of Alfred Rickman, was granted. His Honor allowed Mr Devine L 3 3s as solicitor’s costs for opposing the application to adjudicate James Madden a bankrupt. IN BANCO. Wednesday, June 13. (Before their Honors the Chief Justice and Mr Justice Richmond.) LAHMAN V. PIICENIX INSURANCE COMPANY. The plaintiff claimed on a policy of insurance for loss sustained by the Excelsior Vaults fire. The defendant pleaded arson, that no proper 1 5 days’ statement had been put in, and fraud, and false declaration of loss ; the plaintiff having declared the value of the goods at Ll5O and his loss at L 75. The jury found the loss to be about £l6, for which a verdict was given for the plaintiff. The policy of insurance had the usual conditions as to giving particulars of articles destroyed,

* v.fitb Values, &c., to be verified by statirtoiy declaration, and in default It%m insurer to forfeit- the benefit of the pokeyMr Gully moved! for judgment for CSwb defendant, on the ground that the finding of the jury amounted to a- verdict for the defendant, or for a new trial, on the ground that the verdict was against fh@ weight of the evidence, and. that the Judge misdirected the jury in not teffhig them : that the statement of loss was insufficienfc.- - The statement of loss- scheduled all the stock-in-trade, and stated & kiss of L 75, the whole,, stock not being destroyed. - The manager of the. Company wrote ftr the plaintiff objecting to the particiXlaPs;''but without specifying his objections. Mr Gufiy :• The particulars are insufficient ; we‘cannot tell from. , them what is. dost . and- what not, or the amount of the loss. (Richmond, J- - How is. the first money columns to be filled up i “ sum insured ” J you cannot apportion the' insurance.) There should be an estimate' of the value of the articles lost(Prendefgast, C. J. : The schedule is not so framed as to call for the information really wanted.) (Richmond, J. ■ The form of claim is misleading. The first column ought to be “property lott,” the second, “ sum insured,” ought to be struck out.) Mason v. Hardy, 22 L.J., Ex.' 336, and Ex. 819 ; Worsley v Wood, 6 Y.R., 710, as to the degree of particularity required ; Cook v Scottish Imperial Insurance Co., 5 N.S.W. L.R,, 35. The statement contains an overcharge. The amount claimedactually exceeded the total value of goods on the premises. An overcharge is sufficient to defeat the plaintiff even without; actual fraud, though an accidental or honest mistake would-not be sufficient ; Levi v Bailey,Bing 349 ; Chapman v Pole, 22 L.T., N.S. 300 f Britton v Royal Insurance Co., 15 L.T., N.S. 72, 4 F.F. 505. The Judge should have directed the jury that the particulars were on the face of them insufficient. Taylor on Evidence, 61 : No question of waiver was ever put to the jury or found by them ; the question ought not to be raised now. Neilson v Harpard, 4 M. and W. 806. Mr Skerrett for the defendants : The question of the sufficiency was properly left to the jury; they had to decide whether the particulars were such as by nature of the case reasonably admittedThe performance of such a condition is always left to the jury. Litt and 81., supp. 217, sec. 22, 214, sec. 7■ May on Insurance, sex 475 : Where there is spine particularity the question whether it is enough is for the jury. Mason v Harvey, 8 Ex. 219. There was some particularity in the statement of loss, and the jury was satisfied it was sufficient. The property saved was taken possession of by the insurers. (Mr Gully : Not exclusive possession ; the insured had access.) The form of claim supplied by the insurer waived any more particular form required by the policy. The question of waiver must be deemed to have been determined by the jury. Franklyni v Fire Insurance Co. of Chicago, 11 Am. Rep. 469 ; Pratt v N.Y. Insurance Co., 14 Am.. Rep. 204; Keeney v Home Insurance Co,. 27 Am. Rep. 60 ; Jones v Mechanic Fire Insurance Co., 13 Am. Rep. 405 ; May on Insurance, par. 468. Mr Gully replied. Judgment was reserved, MARTIN V. BLUNDELL. This was a motion to the defendant for a new trial of an action for libel brought by him against the proprietors of the Evening Post newspaper. The action was brought in respect of an article which appeared in the columns of the Evening Post, commenting on the suicide of the defendant’s wife, and charging Martin with habitual drunkenness. The defendant’s plea was that the article complained of was only fair comment on a matter of public interest, viz., the proceedings at the inquest on the body of the deceased Mrs Martin.. At the trial it was admitted by the defendants and proved by the plaintiff that the charge of habitual drunkenness was absolutely false. It appeared from the proceedings at the inquest that there was some evidence that Martin was under the influence of liquor on the evening of his wife’s suicide, and the coroner and jury, without giving Martin an opportunity of explaining whether he was drunk or not, seemed to conclude that he had been under liquor on that occasion. On the issue of whether the article was fair comment on the proceedings the jury found for the defendant. The plaintiff now moved for a new trial, on the grounds : 1. That the , verdict was against the weight of the evidence; that the Judge misdirected the jury; (a) that the proceedings at the coroner’s inquest were a matter of public interest ; (b) that the question for the jury was fair comment, instead of directing them to find whether the defamatory matter was true cr false. Mr Morison appeared for the plaintiff. Mr Gully for the defendants.