the ultimate liability of the members of the society. The effect of the repeal of those statutes was, to remove those obstacles, and to restore the liability of the members to what it was at common law. Sharing in the regret expressed by my Brother Willes, I reluctantly come to the conclusion that the 6th section of the 25 & 26 Vict. c. 87 does not include causes of action existing at the time of its passing. WILLIAMS, J.-Although registered under the 25 & 26 Vict., it is clear that the society could not have been *sued here in its cor. porate capacity, because the contract was entered into before the Society had any legal corporate existence.

[*27

Rule absolute accordingly. Vaughan Williams, for the defendants, asked leave to appeal, suggesting that the matter was of considerable importance to these societies.

M'Intyre opposed the application, on the ground that the amount was small and the decision unanimous.

WILLIAMS, J.-We are at all times anxious that our decisions should be subject to review. But I cannot say that this is a case in which we ought to allow an appeal, especially as the amount in question is so very small. Leave to appeal refused.

BARKER v. HIGHLEY. July 6.

The ship's husband, or managing owner, is an agent appointed by the other owners to do what is necessary to enable the ship to prosecute her voyage and earn freight.

Where, therefore, the ship's husband and managing owner caused a bail-bond to be given in the Admiralty Court, in the names of his co-owner and himself, in a suit for a collision, and the suit terminated in favour of the plaintiffs, and the bail were called upon to pay damages, interest, and costs:-Held, that the co-owner was responsible to the bail for the money so paid.

THIS was an action upon a bail-bond given in the Admiralty Court in order to obtain the release of a vessel from arrest in a suit there for collision.

The first count of the declaration was founded upon an implied promise by the defendant to indemnify the *plaintiff from loss [*28 by reason of his having, as surety for the defendant and one Zachariah Charles Pearson, executed a bail-bond to secure the payment (to the extent of the bond) of what might be adjudged against Pearson and the defendant, as owners of the screw steamship Wesley, in a suit instituted against them in that court by the owners of the ship Antelope.

There were also counts for money paid and for money found due upon accounts stated.

The defendant pleaded never indebted, and to the first count a denial of the promise therein alleged.

The cause was tried before Byles, J., at the sittings in London after last Hilary Term. The facts which appeared in evidence were as follows:-The defendant was a master mariner in the service of Pear. son, then a large ship-owner at Hull, and was owner of two 64th shares. of the Wesley, Pearson being owner of the other sixty-two shares, and acting as the managing owner and ship's husband. On the 17th of September, 1860, a collision took place between the Wesley and

the Antelope, and the former vessel was arrested by virtue of process. out of the Admiralty Court at the suit of the owners of the Antelope. Highley being abroad, Pearson instructed Hargreaves, his broker, to take the necessary steps; and accordingly Hargreaves, in order to obtain the ship's release, procured Barker (the plaintiff) and one Coleman, to execute a bail bond as sureties for the owners for such sum, not exceeding 5000, as might be awarded against them in the Admiralty suit, with costs. Upon the bond being given the ship was released, and afterwards she proceeded upon a voyage and earned freight, of which the defendant received his proportion; and ultimately, the vessel being lost, the defendant received 3007. for his share of the insurance-money.

Judgment having been allowed to go against the *owners of

*29] the Wesley in the Admiralty Court, damages, interest, and

costs were awarded against them to the amount of 2117. 4s., and a monition was served upon the bail requiring them to pay each a moiety of that sum. The plaintiff having paid his moiety, and Pearson having become bankrupt, the plaintiff now sued the defendant.

Hargreaves, the broker, who was called as a witness, stated that he was employed solely by. Pearson, and that neither he nor Barker knew anything of Highley or had any communication with him,

On the part of the defendant it was submitted that Pearson had no power to bind his co-owner by entering into such an engagement without his consent or knowledge.

The learned judge overruled the objection, and a verdict was entered for the plaintiff for 1057. 12s.; leave being reserved to the defendant to move to enter a nonsuit or a verdict.

Denman, Q. C., in Easter Term last, obtained a rule nisi, on the ground that, under the circumstances proved at the trial, the plaintiff was not entitled to recover, and that neither Pearson nor Hargeaves had authority to bind the defendant so as to make him liable for the expenses paid by the plaintiff as surety. He submitted, that, inasmuch as the defendant could only have been made liable in the Admiralty Court to the extent of the value of his interest in the ship, his co-owner could have no implied authority to bind him for damages and costs which might far exceed that value: and he referred to Sims v. Brittain, 4 B. & Ad. 375 (E. C. L. R. vol. 24), 1 N. & M. 594, Myers v. Willis, 17 C. B. 77 (E. C. L. R. vol. 84), 18 C. B. 886 (E. C. L. R. vol. 86), Brodie v. Howard, 17 C. B. 109, Hackwood v. Lyall, 17 C. B. 124, Mitcheson v. Oliver, 5 Ellis & B. 419 (E. C. L. R. vol. 85), and Whitwell v. Perrin, 4 C. B. N. S. 412 (E. C. L. R. vol. 93). *Montague Smith, Q. C., and Hannen, showed cause.-The *30] question is, what is the extent of the authority of a part owner of a ship, who is also managing owner and ship's husband. That question must be decided by reference to general principles and to analogous cases. That which it is necessary to do for the joint benefit must clearly be within the power and authority of the managing owner: and here it was necessary, in order to enable the ship to earn freight, that she should be released; she was released by means of this bond, and she earned freight, his proportion of which the defendant received. The authority is thus stated in Abbott on Shipping, 8th edit. 105, 10th edit. 72,-"It is usual for the several part owners to appoint a person,

frequently one of their own number, to be the manager of their joint concern, their general agent in the use and employment of the vessel, under the name of the ship's husband. His duties and powers as such are often defined and limited by the terms of a special agreement for that purpose between him and his employers or co-owners. Where no such agreement has been made, he is to exercise an impartial judgment in the employment of tradesmen and the appointment of officers, and be careful that his choice in the selection of a master be not biassed by any private pecuniary transaction. He is to see that the ship is properly repaired, (a) equipped, and manned,-to procure freights or charter-parties,-to preserve the ship's papers,-to make the necessary entries,-adjust freight and averages,-disburse and receive moneys, and keep and make up the accounts as between all parties interested. His acts for these purposes are considered to be the acts of all the part owners, who are liable on all contracts entered into by him for the conduct of their *common concern,-the employment of the ship." "But one part owner, though he be [*31 also managing owner, cannot, by ordering an insurance of a ship without authority from another, charge the other with any part of the premium, unless the other afterwards assent to the insurance, because this is no part of the joint concern ; a share in a ship being the distinct property of each individual part owner, whose own affair it is to protect it by insurance. So, one part owner, although he be the husband, cannot as such pledge the other to the expenses of a lawsuit." The rule is similarly stated in Story on Agency, $$ 40, 41, and in Story on Partnership, pp. 581, et seq. In Bell's Principles of the Law of Scotland, p. 449, it is said: "The ship's husband is the agent or commissioner for the owners. He may be a part owner or a stranger. His powers are by mandate or written commission by the owners, or by verbal appointment; the latter chiefly where he is also part owner. Ilis duties are,-1. To arrange everything for the outfit and repair of the ship, stores, repairs, furnishings; to enter into contracts of affreightment to superintend the papers of the ship,-2. His powers. do not extend to the borrowing of money; but he may grant bills for furnishings, stores, repairs, and the necessary engagements, which will bind the owners, although he may have received money wherewith to pay them,—3. He may receive the freight; but is not entitled to take bills instead of it, giving up the lien by which it is secured,4. He has no power to insure for the owner's interest without special authority,-5. He cannot give authority to a law agent that will bind his owners for expenses of a lawsuit,-6. He cannot delegate his authority." If Pearson had paid this money, he might have charged it in the accounts of the ship. In Whitwell v. Perrin, 4 C. B. N. S. 412 (E. C. L. R. vol. 93), necessaries were *furnished to a ship [*32 on the order of the ship's husband (himself a part owner), by whom alone the ship was managed: and it was held that the coowners were liable, although part of the supplies had been paid for by bills drawn by the ship's husband upon the brokers of the ship, and, on the bankruptcy of the latter, the plaintiff had proved against their estate for the balance. [WILLIAMS, J., referred to Preston v. Tamplin, 2 Hurlst. & N. 684.] In Rich v. Coe, Cowp. 636, 639, (a) See Williams v. Allsup, 10 C. B. N. S. 417 (E. C. L. R. vol. 100).

Lord Mansfield said: "Whoever supplies a ship with necessaries has a treble security,-1. The person of the master,-2. The specific ship, -3. The personal security of the owners, whether they know of the supply or not. The master is personally liable, as making the contract. The owners are liable in consequence of the master's act, because they choose him: they run the risk, and they say whom they will trust with the appointment and office of master." Here, the defendant trusted Pearson to do all that was necessary for the employment of the ship: and the employment of Hargreaves by Pearson was no delegation of the authority intrusted to him.

Denman, Q. C., and Milward, in support of the rule.-Whatever might have been the general authority of Pearson as ship's husband, he clearly had no right to assume that the defendant would intervene in the suit in the Admiralty Court; and there was no necessity for making him intervene so as to become liable for the damages and costs. A part owner of a ship is not necessarily a partner: Helme v. Smith, 7 Bing. 709 (E. C. L. R. vol. 20), 5 M. &. P. 774. As between the part owners, each is only liable to the extent of his own interest in the ship. His liability in cases of this sort is similarly limited by the 504th section of the Merchant Shipping Act, 17 & 18

Vict. c. 104. That section is *substantially a re-enactment of *33] the 1st section of the 53 G. 3, c. 159, which was under discus

sion in Ex parte Rayne, 1 Q. B. 982 (E. C. L. R. vol. 41). This clearly is not an ordinary incident to the authority of a ship's husband: it was just as much out of the course of the ordinary duty of a ship's husband as was held the instituting a suit for salvage in Campbell v. Stein, 6 Dow 116. A ship's husband has no power to insure unless by the authority of his co-owner; French v. Backhouse, 5 Burr. 2727; or for repairs which are not necessary: Chappell v. Bray, 3 Law J. Exch. 24. So, one partner has no authority to bind his copartner by a reference to arbitration (Hatton v. Royle, 3 Hurlst. & N. 500), or by consenting to an order for judgment in an action against himself and his copartner: Hambridge v. De la Crouée, 3 C. B. 742 (E. C. L. R. vol. 54). [WILLIAMS, J.-Suppose a ship bound on a voyage under a heavy penalty comes into collision with another and slightly damages her, and, the ship's husband declining to give bail, the voyage is lost, -would not his co-owners have a right to call upon him for compensation?] It is submitted that they would not. That which was done here was clearly beyond the scope of a co-owner's power and authority. One of several partners cannot bind his copartners, without their consent, by giving a guarantee, or a cognovit, or by entering an appearance to an action. [WILLIAMS, J.-This is put upon the ground of necessity.] Cur, adv. vult.

WILLIAMS, J., now delivered the judgment of the court:(a)-The defendant in this action was part owner of a vessel which had been arrested in the Admiralty Court, in a suit for collision. The defendant held two sixty-fourth shares only; the other co-owner held the *34] remaining sixty-two sixty-fourth shares, and acted as ship's husband and managing owner. The latter, in order to obtain the release of the ship, procured the plaintiff and another person to become bail for the ship in the Admiralty Court, and the ship was

(a) The case was argued before Erle, C. J., Williams, J., Willes, J., and Byles, J.

thereupon released. The suit terminated in favour of the owner of the injured vessel. The managing owner of the defendant's vessel became bankrupt, and the ship itself was afterwards lost. The bail having each paid their proper share of the money due on the bailbond, the plaintiff as one of them sued the defendant in this action to recover his proportion of the money so paid.

At the trial before Byles, J., the plaintiff obtained a verdict; but leave was given to the defendant to move to enter a nonsuit.

The ship's husband, or managing owner, is an agent appointed by the other owners to do what is necessary to enable the ship to prosecute her voyage and earn freight. In this case it was absolutely necessary to release the ship from the Admiralty process, as necessary as it would have been to employ salvors, had the vessel taken the ground and been in danger of destruction; in which case the salvors, in addition to the security afforded by their maritime lien, might have brought an action against the owners: Newman v. Walters, 3 B. & P. 612.

We think the managing owner was not bound to deposit money out of his own pocket, or to mortgage his own shares, or to hypothecate the ship; but that he might do what was necessary according to the rules of the Admiralty Court. Those rules enabled him to obtain a release of the ship by merely procuring bail for damages and costs.

The hardship on the present defendant is undoubtedly great; but that arises from the facts that he was owner of so small a portion of the ship, and that he has lost his remedy against the co-owner by that *co-owner's bankruptcy, and against the ship by its subsequent loss.

[*35 We are therefore of opinion that the rule to enter a nonsuit should be discharged. Rule discharged.

A deed (which by arrangement was to be executed in duplicate, one to be prepared by each party and to be interchanged between them) was executed by the grantee, but not attested, and was by him sent to the solicitor of the grantors to procure their execution; and they accordingly signed, sealed, and delivered it :-Held, that this was a complete delivery, whereby the estate passed; and that the above arrangement did not render the deed an escrow until the duplicates were interchanged.

THIS was an action of replevin. The defendant avowed that one William Pratt, during all the time for which the rent thereinafter mentioned to be distrained for accrued due, and thence until and at the time of the alleged taking of the said goods, held the said dwell ing-house and premises in which, &c., as tenant thereof to the defend ant under a demise thereof at the yearly rent of 751. payable quar. terly, on, &c., in every year, by even and equal portions; and because 165%. 15s. of the said rent at the time of the alleged taking was due and in arrear from the said William Pratt to the defendant, he the defendant well avowed the taking, &c. Plea, non tenuit. Issue thereon.

The cause was tried before Wightman, J., at the last Spring Assizes at Kingston, when the learned judge directed a verdict to be entered for the defendant, with liberty to the plaintiff to move to enter a ver.