CHAN. DIV.] Re CHAMBERLAIN'S SETTLEMENT; CHAMBERLAIN v. CHAMBERLAIN. General desiring to be and having been joined as a party, the case was again heard on the 21st July.] Jenkins, K.C. and F. E. Farrer.-As to any income on the trust funds received up to the 4th Nov. 1915, the jurisdiction of this court is objected to. An originating summons cannot deal with private property. [CHAN. DIV. Attorney-pretation of the treaty, the Attorney-General is interested and is entitled to appear if he thinks fit, it is a question of public interest whether this property is subject to a charge under the terms of the Treaty and Order 1919. As regards income paid into H. S. Chamberlain's account, we are not concerned, but accumulations from that time until the 10th Jan. 1920 are subject to the charge under the treaty. A person is a German national within the meaning of the treaty and order who is a German national according to German municipal law, although according to the law of some other State he may be a subject of that other State. It may be necessary to decide that H. S. Chamberlain is a German national for the purposes of the treaty, though also a British national according to British law if he resides in Germany. Owen Thompson and Roope Reeve, for the children of Henry Chamberlain claiming on a forfeiture of the life interest of Houston Stewart Chamberlain.The material sections of the Peace Treaty will be found set out in the Treaty of Peace Order of the 8th Aug. 1919. The respondent H. S. Chamberlain is a German national within the meaning of the Peace Treaty, and the 5000l. settled is "charged in favour of," within the meaning of those words in the Treaty of Peace : Re Levinstein; Levinstein v. Levinstein, 152 [Jenkins, K.C.-I admit that in a German court the respondent H. S. Chamberlain would be recognised as a German citizen or subject, applying the German law to his position.] The law to be applied in deciding whether the respondent H. S. Chamberlain is or is not a German national is German Municipal Law (Stoeck v. Public Trustee, 125 L. T. Rep. 851; (1921) 2 Ch. 67). The income on the trust funds, which has accumulated between the 4th Nov. 1916, and the date of the Peace Treaty the 10th Jan. 1920, is payable to the custodian (Re Levinstein; Levinstein v. Levinstein) (ubi sup.), who must make a return of what he receives. Jenkins, K.C.-The custodian may be a proper party to these proceedings, but the Crown is not unless it has a proprietary right or is ousted from property of a deceased person or where a claim is made against a Crown servant in respect of an Act done by him in that character, or in the case of a matter of public interest as interference with a highway where an individual can show special damage. Before Eve, J. in Re Levinstein; Levinstein v. Levinstein (ubi sup.) the custodian was concerned, and here the custodian ought to be substituted as a party in place of the AttorneyGeneral. This respondent H. S. Chamberlain was a British subject, and the onus is on the other respondents to prove he has lost that status. Rex v. Lynch and Rex v. Middlesex Regiment (C. O.) ; Ex parte Freyberger (ubi sup.) established that an Act such as this of temporary naturalisation must be disregarded as wholly void (Cockburn on Nationality, p. 67; Aeneas Macdonald Foster's Crown Cases, 59). Where there is a conflict of laws the law of this court ought to be applied. This court will refuse to listen to evidence that H. S. Chamberlain has become a German national because that would involve the other respondents relying upon an illegal act. (Hallick's International Law, vol. 1, sect. 29, p. 461). If at the date of the treaty he proves he is a British subject, then his property is not liable to a charge under that treaty. It is in this country the trust funds are administered therefore English law prevails. [Calvin's case (178, 7 Co. Rep. 9A) and Doe d. Thomas v. Acklam (1824, 2 B. & C. 779) were referred to.] Gavin T. Simonds (with the Attorney-General).— On a question of this kind, involving the inter 33 Cur, adv. vult. July 28.-P. O. LAWRENCE, J.-This summons raises the question whether the respondent Houston Stewart Chamberlain (hereinafter called the respondent) is a German national within the meaning of the Treaty of Peace (hereinafter called the treaty), and of the Treaty of Peace Order 1919 (hereinafter called the order). The respondent was born in England on the 9th Sept. 1855; he there fore was a natural born British subject. He was twice married, first to a German teacher of music, whom he divorced in Germany in 1957, and, secondly, to a daughter of the celebrated German composer, Richard Wagner. Since the year 19.8 he has resided with his wife at the house of his mother-inlaw at Bayreuth, in Bavaria. His views were anti-British, and during the war (namely, on the 8th Aug. 1916) he voluntarily became naturalised in Germany. Sect. 2 of the Order provides that for the purposes of the order the expression "nationals in relation to any state includes the subjects or citizens of that state. I agree with the decision of Russell, J. in Stoeck v. Public Trustee (125 L. T. Rep. 851; (1921) 2 Ch. 67) that the question whether a person is a "German national within the meaning of the treaty and order falls to be determined exclusively by the German municipal law. In the present case all the parties have accepted the opinion of Dr. Ernest J. Schuster as correctly stating the German law on the subject, and I have accordingly based my findings as to German law upon that opinion. According to German municipal law the respondent by virtue of his naturalisation, acquired the status of a German subject, although at the time he was the subject of a state at war with the German Empire. Further, in the German official text of the treaty the word "national" is translated into Reichsangehoriger," and by the express provisions of the German Nationality Act 1913, the respondent on naturalisation acquired the status of a Reichsangehoriger," in other words he became a "German national." It is, however, contended by Mr. Jenkins that as the courts of this country would in the circumstances of this case refuse to recognise the respondent's change of allegiance, and would hold him still to be, and liable to all the obligations of, a British subject (see Rex v. Lynch (88 L. T. Rep. 26; (19. 3) 1 K.B. 444; and Rex. v. Middlesex Regiment (C. O.); Ex parte Freyberger, 116 L. T. Rep. 237; (1917) 2 K. B. 129), therefore this court ought to hold that he is not a "German national within the meaning of the treaty and order. 66 66 CHAN. DIV.] Although I agree with the premises on which this contention is founded, I am of opinion that the conclusion attempted to be drawn from such premises is incorrect. The respondent, by becoming a German subject in time of war, no doubt committed a crime against the laws of this country. His act was an offence for which, if he were to come within the jurisdiction and power of this country, he would be liable to our law, and in respect of which his naturalisation in Germany would afford no defence. But whatever decision might be reached by the courts of this country would not alter the fact that according to German law he did become a German subject. No court of this country could on the evidence before me properly hold that according to German law the respondent did not in fact become a German subject. German law does not recognise different classes of subjects or citizens. According to that law the naturalisation in Germany of the respondent constituted him a German subject as fully as if he had been a German by birth, notwithstanding that, according to our law, he could not, in time of war, throw off his allegiance to Great Britain, and become the subject of an enemy State, and notwithstanding, therefore, that according to our law he still remains a British subject. If, however, I am right in holding that the question whether a given person is a German national within the meaning of the treaty and order must be decided exclusively according to German law-and it is on the correctness of this view that my judgment is based-it follows that the respondent is a German national for the purposes of the treaty and order, although the courts of this country would for all other purposes treat his naturalisation in Germany as illegal and void. Bearing in mind that the treaty is an international agreement, one of the parties to which is Germany, I do not think that there is anything incongruous in holding that the respondent is a German national within the meaning, and for the purposes of the treaty, although for all other purposes the courts of this country would refuse to recognise his German nationality. To hold otherwise would, in my opinion, lead to the anomalous result that the expression German national in the treaty would bear a different meaning in England from that which it bears in Germany. Re CHAMBERLAIN'S SETTLEMENT; CHAMBERLAIN v. CHAMBERLAIN. The further question, however, has been raised that a German national who has a dual nationality ought not to be held to be a German national for the purposes of the treaty and the order. In the case of a German national who is also a national of some Power other than one of the Allied or Associated Powers, I see no reason whatever for suggesting that on the construction of the treaty and order he ought not to be held to be a German national for all the purposes of the treaty and order. It would, indeed, be strange if a German national could escape the burdens cast upon him by the treaty merely because he also happened to be a national of some state other than one of the Allied or Associated States. In the case of a German national who is also a national of one of the Allied or Associated Powers, and especially where he is a British national, and his property sought to be affected is in England, the case is not so clear. I can conceive that in such circumstances cases of difficulty might arise; but, on the whole, I have come to the conclusion that in construing the treaty and order no logical distinction can be drawn between German nationals, who are also nationals : [CHAN. DIV. of a non-Allied or non-Associated Power, and German nationals who are also nationals of an Allied or Associated Power. In neither case could these persons, in my opinion, avoid the burdens cast upon them by the treaty merely by proving that they had a dual nationality; I find it difficult to appreciate how proof of that fact would afford an answer to claims made against them under the treaty as German nationals. It is further argued that the construction which I have placed on the expression "German nationals," cannot be the true construction, because if it were it would result in great hardship being inflicted upon a number of national-born and naturalised British subjects, who also happened to be German nationals according to German law. The answer to this argument, in my opinion, is that no such hardship would necessarily result because the custodian (acting under the general direction of the Board of Trade) has power to release the property of a German national from the charge created by the order (see sect. 2 of the Treaty of Peace (Amendment) Order 1920), and this power would no doubt be exercised in all proper cases; for example, in such a case as was suggested during the argument where a British national who was also a German national had fought in the war on the side of Great Britain. The existence of dual nationality must have been well known to all the high contracting Powers and, in my opinion, it is not to be supposed, in the absence of express words to that effect, that it was intended to exempt from the operation of the treaty all persons who might happen to have a dual nationality. I think that the true view of the construction of the treaty is that the expression "German nationals includes, and was intended to include, all persons who, according to German law, answer that description, whether they also had any other nationality or not, and that it was left to each of the Allied and Associated Powers so to regulate matters within its own jurisdiction as to ensure that there should be no injustice or hardship. In my judgment, therefore, all that has to be proved in a case like the present is that the person concerned is a German national according to German municipal law. If that fact be proved then the person concerned comes within the operation of the treaty and order, although he may also be a national of some other State, even though that State be Great Britain, and even though, according to our law, he would be deemed not to be a German subject. I, therefore, hold that the respondent is a German national within the meaning of the treaty and order. The effect of this decision, in my judgment, is that the accumulations in the hands of the trustees representing income which has accrued prior to the 10th Jan. 1920, ought to be paid to the custodian. And that the income accrued and to accrue on, and subsequently to that date, is applicable under the discretionary trust which came into operation on that date by virtue of the charge created by the joint operation of the treaty and order. In arriving at this conclusion as to the destination of the past and future income of the trust fund, I have followed the decision of Eve, J. in Re Levinstein (152 L. T. Jour. 38; (1921) 2 Ch. 251), with which I agree and which, in my opinion, covers this case so far as this point is concerned. In conclusion, I desire to say a few words about the objection taken by Mr. Jenkins to the presence of the Attorney-General as a party to these proceedings. When the first summons came before me, and I realised that it involved the determination of an important question on the construction of the treaty and order, I suggested to the applicants that it might be desirable to add the AttorneyGeneral as a party. This suggestion was welcomed by the applicants and by the respondents, other than the respondent Houston Stewart Chamberlain, and the summons thereupon stood over, and was amended by making the Attorney-General a respondent. The Attorney-General has raised no objection to having been made a party; on the contrary, he has appeared at the hearing and has assisted the court by submitting the views of the Crown on the question which has arisen. In my opinion, the Attorney-General is a proper party to these proceedings, because the question arising for decision is one which has an important bearing on the carrying into effect of the Treaty of Peace, and, therefore, one which directly concerns the Crown; moreover, I think it is also a question which may affect a large section of the British public. If authority be needed for joining the AttorneyGeneral as a party under such circumstances, I think that it is to be found in the decision of the Privy Council in Esquimault and Nanaimo Railway Company v. Wilson (122 L. T. Rep. 563; (1920) A. C. 358). There will be a declaration in accordance with my judgment, and I direct the trustees to pay the costs of all parties of this application as between solicitor and client out of the accumulations of income now in their hands. Solicitors: Wordsworth, Porter, and Shaw for Henry S. Chamberlain, Bognor; Farrer and Co.; Solicitor to the Board of Trade; Treasury Solicitor. KING'S BENCH DIVISION. Thursday, May 26, 1921. (Before LUSH and GREER, JJ.) Re OXTED MOTOR COMPANY. (a) Company Voluntary winding up Extraordinary resolution passed by all the shareholders-No notice given-Waiver of formalities-Companies (Consolidation) Act 1908 (8 Edw, 7, c. 69), ss. 69, 182. By sect. 182 of the Companies (Consolidation) Act 1908, A company may be wound up voluntarily (3) if the company resolves by extraordinary resolution to the effect that it cannot by reason of its liabilities continue its business, and that it is advisable to wind up." By sect. 69: "A resolution shall be an extraordinary resolution when it has been passed by a majority of not less than three-fourths of such members entitled to vote as are present in person or by proxy general meeting of which notice specifying the intention to propose the resolution as an extraordinary resolution has been duly given.” In Nov. 1920, one L. obtained a judgment against the O. company and sought to levy execution under his judgment. The O. company consisted of two shareholders only, and the two shareholders were also the two sole directors. On the same day as that on which the judgment was obtained the two sole directors of the company held a meeting and passed a resolution to the effect that it had been proved to the satisfaction of the company that the company could not by reason of its liabilities continue its business, (a) Reported by T. W. MORGAN, Esa.. Barrister-at-Law. at a [K.B. Div. and that it was advisable to wind up the same, and accordingly that the company be wound up voluntarily, and that M. be appointed liquidator for the purpose of such winding up. The resolution was subsequently confirmed at a meeting of the creditors, and a joint liquidator was appointed. An order was made by the registrar of the County Court confirming the appointment of the joint liquidators, and also appointing a committee of inspection. The appointment of the liquidators was impeached by a creditor of the company on the ground that a valid resolution to wind up the company had not been properly passed. The registrar set aside the appointment of the two liquidators, and his order was affirmed by the County Court judge. Held, allowing the appeal, that it was competent for all the shareholders of the company acting together to waive the formalities of sect. 69 of the Companies (Consolidation) Act 1908 as to notice of intention to propose the resolution for voluntary winding up as an extraordinary resolution, and that as all the shareholders of the company in the present case had met and passed the extraordinary resolution to wind up the company voluntarily, that resolution was valid. APPEAL from Croydon County Court. An application was made to the registrar of the Croydon County Court by a judgment creditor of a company for an order that the appointment of certain gentlemen as liquidators of the company be set aside on the ground that a resolution for the voluntary winding up of the company had not been properly passed. All the shares in the Oxted Motor Company Limited were held by the two directors, G. H. Henry and E. L. Tessier. On the 2nd Nov. 1920, Captain Welling Laurie obtained a judgment against the company for 8571. and costs. On the 3rd Nov. a warrant to levy execution was issued to the sheriff, but he was already in possession under another judgment. On the 2nd Nov. Henry and Tessier, the only shareholders of the company, met at the offices of the company, and passed a resolution that the company could not by reason of its liabilities continue its business, and that it was advisable to wind-up the same. A formal resolution for the voluntary winding-up of the company on these grounds was then signed by Henry and Tessier, and one B. B. McCullum was appointed liquidator. No previous notice of the intention to propose this resolution as an extraordinary resolution had been given to the shareholders. The voluntary liquidation was confirmed at a meeting of creditors of the company on the 22nd Nov. 1920, when one Sunderland was appointed joint liquidator with McCullum. On the 3rd Dec. 1920, Sunderland's appointment was confirmed by an order of the registrar of the Croydon County Court, and a committee of inspection, including Captain Welling Laurie, was appointed. Cross proceedings followed, by the liquidators to restrain Captain Laurie from proceeding with the execution under his judgment, and by Captain Laurie for the removal of the liquidators on the ground that no valid resolution to wind-up the company had been passed. The contention of Captain Laurie was upheld by the registrar, and he set aside the appointment of the liquidators. The liquidators appealed to the County Court judge, who affirmed the order of the registrar setting aside the appointment of the liquidators. The liquidators appealed to the Divisional Court. By the Companies (Consolidation) Act 1908 (8 Edw. 7. c. 69): Sect. 69. A resolution shall be an extraordinary resolution when it has been passed by a majority of not less than three-fourths of such members entitled to vote as are present in person or by proxy at a general meeting of which notice specifying the intention to propose the resolution as an extraordinary resolution has been duly given. Sect. 182. A company may be wound up voluntarily. (3) if the company resolves by extraordinary resolution to the effect that it cannot by reason of its liabilities continue its business and that it is advisable to wind up. Luxmoore, K.C. and C. A. J. Bonner for the liquidators. Notwithstanding the absence of no ice the resolution for the voluntary winding-up of the company was valid. All the shareholders were present and agreed to it. W. Higgins and Engelbach for the execution creditor.-The resolution is not valid because the requirements of sect. 69, which are peremptory, were not complied with. LUSH, J.-I think this appeal must be allowed. There is no doubt that all the shareholders in this company-there were in fact only two-met at the office of the company and passed a resolution that the company could not by reason of its liabilities continue its business, and that it was advisable to wind it up, and accordingly that it be wound up voluntarily. It is argued that notwithstanding the fact that all the shareholders in the company were present and supported that resolution, it was not a valid extraordinary resolution to wind-up the company, because the requirements of sect. 69 of the Companies (Consolidation) Act 1908, had not been complied with. That section defines an extraordinary resolution. There is no doubt that no notice had been given before the shareholders met intimating an intention to propose this resolution as an extraordinary resolution. It is contended that unless the notice contemplated by that section has been given a resolution is not valid as an extraordinary resolution, and it is said that, notwithstanding that all the shareholders in the company were present and were dealing with a matter which was intra vires, and were all supporting the resolution, and notwithstanding that there was no fraud, still this resolution was invalid as an extraordinary resolution to wind-up the company voluntarily because the statutory requirements of sect. 69 with regard to notice had not been complied with. In my opinion that contention is not well founded. It would be an extraordinary result if, after all the shareholders of a company had been present at a meeting and had unanimously passed a resolution to wind up the company voluntarily, anyone else could impeach that resolution on the ground that the shareholders had not had notice of the intention to propose the resolution as an extraordinary resolution, and that, therefore, the requirements of sect. 69 had not been complied with. In my opinion the shareholders are just as much entitled to waive the formality of notice for the purpose of turning a resolution into an extraordinary resolution as for any other purpose. Re Express Engineering Works Limited (122 L. T. Rep. 790; (1920) 1 Ch. 466) is an authority in [K.B. Div. support of the view that the statutory requirements with regard to notice can be waived. It is true that in that case the resolution was not a resolution to wind up the company, but a resolution to issue certain debentures. What happened there was this: All the shareholders of the company-there were only five-were also directors, and met as directors at a board meeting, and afterwards passed the resolution to issue the debentures without constituting themselves into a meeting of shareholders and without any notice having been given for the calling of a general meeting of shareholders, as required by sect. 67 of the Companies (Consolidation) Act 1908. The company was afterwards wound-up, and it was contended by the liquidator that as the requirements of the statute had not been complied with the resolution to issue the debentures was invalid. The Court of Appeal affirmed the decision of Astbury, J. that the requirements of the statute were intended for the protection of the shareholders, and that if the resolution was a matter intra vires the members of the company, and there was no fraud, the share holders could waive all formalities as regards notice, and that the resolution was just as valid as if the requisite notice had been given. Warring. ton, L.J. said: "It happened that these five directors were the only shareholders of the company, and it is admitted that the five, acting together as shareholders, could have issued these debentures. As directors they could not, but as shareholders acting together they could have made the agreement in question. It was competent to them to waive all formalities as regards notice of meetings, &c., and to resolve themselves into a meeting of shareholders and unanimously pass the resolution in question." case. If that is true in the case of a resolution to issue debentures, it seems to me that it is equally true in the case of a resolution to wind-up a company voluntarily, such as the resolution in the present It is said that in the case of an extraordinary resolution the Legislature has made it imperative that the notice required by sect. 69 should be given, in order to give an opportunity for the shareholders to consider whether the resolution should be passed, and that it is not competent to waive that formality. I cannot see any reason why shareholders should not be able to do in that case what they can do in any other case. the absence of fraud I think that shareholders can waive the notice in this case just as freely as they could in Re Express Engineering Works Limited (sup.). In For these reasons I think the judgment of the County Court judge was wrong, and that the appeal must be allowed. GREER, J.—I agree that this appeal must be allowed. The question is whether the resolution that was passed was a valid and effective resolution to wind up the company. It is said that the resolution cannot be valid as an extraordinary resolution within sect. 182 of the Companies (Consolidation) Act 1908, owing to the absence of the notice required by sect. 69 of that Act. Under sect. 182 a company can only be wound-up voluntarily in three ways. The third method is the one which is material in this case, which is that if the company resolves by extraordinary resolution to the effect that it cannot by reason of its liabilities continue its business, and that it is advisable to wind up. There was a general meeting of the K.B. Div.] COLLEY V. OVERSEAS EXPORTERS (1919) LIMITED. company in the sense that there was a meeting of the shareholders of the company at which all the shareholders were present, but there had been no notice given of an intention to propose an extraordinary resolution at that meeting or otherwise, unless the request to sign the minute of the resolution is a notice of intention to propose the resolution as an extraordinary resolution. The appellant may put his case in two ways; he may say that notice was duly given by reason of what took place between the two shareholders, and that the requirement that the notice should be a seven days' notice was waived. It may also be said that whether the notice required by sect. 69 has been duly given or not that is a matter that concerns the shareholders alone, because the legislature has given the shareholders the right to say whether or not a company shall be voluntarily wound-up. The creditors of the company have no voice in the matter, and they cannot object to the validity of a resolution to wind-up voluntarily by saying that the proper notice to pass that resolution as an extraordinary resolution has not been given. This view is supported by the decision of the Court of Appeal in Re Express Engineering Works Limited (sup.). That is a case in which it might be said that the creditors had an interest in the matter, because it arose after the company was being wound-up, and when the interest of the creditors of the company had come into conflict with the interests of the shareholders. Appeal allowed. Solicitors for the appellant, Woodham Smith and Borradaile; for the respondent, Calvert H. E. Smith, Richmond. May 12, and June 9, 1921. COLLEY V. OVERSEAS EXPORTERS (1919) LIMITED.(a) Contract-Sale of goods-F.o.b. contract-No specific day fixed for payment of price-Buyer's failure to provide ship-Passing of the property-Right of seller to sue for price. The plaintiff sold to the defendants a quantity of unascertained leather goods, "f.o.b. Liverpool. There was no agreement that the price should be payable on any specific date before or irrespective of delivery. The plaintiff was instructed by the defendants to consign the goods to Liverpool for shipment on board a named ship. The plaintiff duly dispatched the goods according to the defendants' instructions but the named ship was by then withdrawn from service by her owners, and the other vessels which were substituted were prevented from aking the goods on board, and no effective ship was provided, consequently, the goods were left lying at the docks at Liverpool and unshipped. The plaintiff thereupon sued the defendants on a specially endorsed writ for the price of the goods and contended that the defendants' failure to provide an effective ship had relieved him from the performance of his obligation to put the goods on board ship as a condition precedent to the passing of the property and his right to sue for the price. Held, that the goods having been sold f.o.b., the property in them had not passed to the defendants, and (a) Reported by T. W. MORGAN, Esq., Barrister-at-Law. [K.B. Div. as there was no agreement providing for the payment of the price before delivery of the goods, the plaintiff could not sue for the price, as distinguished from damages for breach of contract. ACTION under Order XIV., tried by McCardie, J. The plaintiff claimed to recover the sum of 9851. 17s. 4d., which he alleged was due from the defendants as the price of goods sold and delivered. The following statement of facts is taken from the written judgment of McCardie, J. On the 17th Dec. 1920, the plaintiff, who was a leather merchant carrying on business at Sheffield, sold to the defendants, who were also carrying on business as merchants at Sheffield, a quantity of leather belting, of stated sizes and qualities, and at certain prices, f.o.b. Liverpool. The goods were not specific within the definition clause (sect. 62) of the Sale of Goods Act 1893. They were unascertained at the date of the bargain. On the 26th Jan. 1921, the defendants sent shipping instructions to the plaintiff. These directed that the goods should be packed for export and that they should be marked Closing Despatch 2/2/21 and 5/2/21. Consign as ordered and then said: Steamship Kenuta. to Alexandra Dock Station, Liverpool, c/o Daniel Maccabe Limited, 17, Brunswick-street, Liverpool, advising them of despatch." 66 On the 3rd Feb. 1921, the plaintiffs wrote to Maccabe Limited (who were shipping agents at Liverpool): "We have to-day despatched by the Great Central Railway Company (Alexandra Dock Station) to steamship Kenuta to the order of Overseas Exporters Limited of Sheffield seven cases of Leather Belting.' The goods left Sheffield and reached their destination in Liverpool to be dealt with by Maccabe Limited in order to carry out the plaintiff's obligation to put them on board. A series of misfortunes then occurred. The steamship Kenuta was withdrawn from service by her owners who then proposed to substitute another ship. This second ship was, however, inadequate for the intended voyage. Then a third vessel was put forward as a substitute, but, an accident having occurred to a fourth vessel of the same owners, the third ship had to be used to replace that damaged vessel. So a further ship was put forward, viz., the Sorata, which was then at Glasgow. She, however, could not reach Liverpool because of a strike. The result was that on the 14th April 1921 (the day on which the writ was issued) the goods were still unshipped and the plaintiff was still unpaid. Prior to the 14th April Daniel Maccabe Limited sent a note of their charges, amounting to ll. 48., to the plaintiff, and on the 14th April he gave them a cheque for that sum. He, of course, was responsible for these charges, as the cost of getting the goods on board fell on him under the contract. Willes for the plaintiff. J. G. Joseph for the defendants. Cur. adv. vult. June 9.-MCCARDIE, J. read the following judgment. This action is brought upon a writ specially endorsed within Order XIV., to recover the sum of 9851. 178. 4d., alleged to be due from the defendants to the plaintiff as the price of goods. The only question is whether that liquidated sum is due. No question arises, as yet, as to damages against the defendants. The case raises a point of legal interest and practical utility as to the circumstances under |