The Wave.

owners of the cargo at that time that any such letter had been written to Mr. Beara, the owner of the ship. There are one or two other letters which I will advert to. The first letter, I take it, is a mere duplicate. That is the letter dated the 18th of October, and it contains the survey. The next letter is addressed to Messrs. W. & J. Gwyer, Bristol, who were part owners of the cargo, which is somewhat in the words I have read before: "We beg leave to inform you by the present, that the Wave's repairs are now so far advanced that she will begin to take in her cargo." The next letter, dated the 5th of December, is in these words: "We beg leave to inform you that the Wave's average is finished, and the ship ready for sea, and will proceed on her voyage by first good wind and weather." Then comes a postscript: "The average amounts to 1012. 2s. 7d., whereagainst Captain Pickard signed a bottomry bond at 18. per cent. premium." This is dated the 5th of December, 1849; the vessel met with her accident on the 17th of October, and the communication of that accident was made by Messrs. Severin, Steison, & Co., to the owners of the cargo, on the 19th of October. All this time elapses, and they were not informed of the intention to take a bond until the bond had actually been taken and signed. So much, then, with reference to that fact. There is another letter or two which, I think, I may as well read, annexed to the affidavit of Mr. Brooke Smith:

"John Beara, Esq., Bideford.

"Elsinore, October 18, 1849.

"Dear Sir,-We beg leave to inform you that your Wave, Captain Pickard, had the misfortune, on the 17th instant, by getting under way, to come, on account of the current, ashore on the Castle Point, where she got leaky in such a manner that she had to put into this harbor, where the cargo shall have to be discharged, and the ship repaired, as you will observe it from the enclosed copy. We shall pay our best attention to this affair, and now and then inform you of particulars; meanwhile "We remain, dear sir,

"Your most obedient, humble servants,
"SEVERIN, STEISON, & Co.

"Captain Pickard will write to you to-morrow."

So that they undertake the matter as agents, and charge as agents, and give no intimation as to the amount, or whether they shall draw upon him. Then comes another letter, of the 27th of October: "Referring to our last respects of the 18th instant, we by the present beg leave to inform you that the Wave, after having taken out her cargo, was had down to-day with starboard side up, where she will have to be caulked over all, and some yards of planks to be taken out. We shall write you again when the other side comes up; and by the next mail Captain Pickard will write to you." There is nothing more except an insignificant postscript. So that a correspondence was going on throughout the whole of this period, and that is the particular reason why I advert to it. There is nothing important in the letter; I read it to show that there was a continuous corre

The Vargas.

spondence with the owners of the ship and cargo, and it is rather the negative I look to, namely, there is no mention of a bottomry bond throughout. Then follows the letter I have already read an extract from, dated the 17th of November, stating they do not mean to draw on Mr. Beara. I am not aware that it is necessary to enter more minutely into the evidence; I have gone through all the important letters in this case; the question is, What is the result of this evidence? Now, the result of this evidence, in my opinion, is perfectly clear; the result is, that there was no understanding, no agreement, and nothing had passed with the master with regard to a bottomry bond until the receipt of the second letter from the owner of the vessel, at the end of November, six or seven weeks after the accident occurred; that there was most ample opportunity for Messrs. Severin, Steison, & Co., of which they availed themselves, to correspond both with the owner of the ship and with the owners of the cargo; that they did so from time to time, and never upon any occasion intimated their intention to take a bottomry bond. Now, under these circumstances, if I come to the conclusion, as I do, that there was no agreement or undertaking for the bottomry bond until the repairs were finished, they having been ordered on the responsibility of the house of Messrs. Severin, Steison, & Co., I cannot escape the conclusion of law, that a bond so taken is invalid; and I have no wish in this case to escape from that conclusion of law, because, when I look at the account, the vouchers and expenses incurred, and the charges made, and I see that these gentlemen must have been apprised, if they intended to take a bottomry bond at all, of the necessity of so doing from the earliest possible period, I consider it was their bounden duty to advise the owners of the ship and cargo, with whom they were in correspondence, of such intention, and they did not do it, but kept back and concealed such intention, if they ever entertained it, till the very period of taking the bond. I pronounce for the invalidity of the bond, and certainly do so with satisfaction to my own conscience. It is not only illegal in point of law, but not justifiable as a mercantile transaction. And I so pronounce against the bond with costs.

THE VARGAS.1
April 30, 1851.

Practice Attendance of Trinity Masters.

Application was made to the court for the attendance of Trinity masters upon the admissibility of a plea. Application refused.

THIS was a case of damage, and the proceedings were by plea and proof. A responsive allegation was brought in on behalf of the

1 15 Jur. 710.

The Vargas.

owner of the Vargas, the ship proceeded against; the admission of which was opposed on the ground that the account of the collision therein pleaded was, as a matter of fact and of nautical experience, impossible, and therefore incapable of proof.

Sir J. Dodson, Q. A., and Jenner were heard in opposition to the admission of the allegation.

Addams and Twiss, contra.

DR. LUSHINGTON. In this case application was made for the attendance of Trinity masters; I thought it my duty not to comply with that application. When these cases are ready for hearing, and furnished with evidence, I am always very glad to have the assistance of those gentlemen; but I believe that, drawn as the pleadings necessarily are, it would be most inconvenient to call them in upon the question of the admissibility of a plea. At all events, the application is, as far as I know, quite unprecedented, and I think I was quite right in refusing it. As far as the allegation is concerned, I will not take it upon myself to say that the averments are incapable of proof; the party has a right to set up his own case, and if he relies upon a state of facts which turns out to be untrue, or impossible, he must take the consequences. I admit the allegation.

Records-Clerical Error - Rectifying Proceedings.] The court, upon being satisfied
that a clerical error had arisen in the master's report, sanctioned an alteration
which had been made, and allowed the subsequent proceedings to be rectified in
conformity. Richardson v. Ward, 69.

ASSIGNMENT.

Assignment of Pay.] An officer in the army may assign for the benefit of his cred-
itors the difference received by him upon going on half pay. Price v. Lovett, 110.

CASES APPROVED, &c.

Perry v. Knott, 5 Beav. 293, observed upon. 55.

Kellaway v. Johnson, 5 Beav. 319, observed upon. 55.

CHARITY.

1. Charitable Use.] It was conceded by the parties interested in opposing it, that a
bequest to the commissioners for the reduction of the national debt, to be applied
in reduction of the national debt, was a charitable use. Ashton v. Langdale, 80.

2. Appointment of Trustees of.]

Chancery.

See TRUSTEE, 4, 5.

CLAIM.

1. Claim-Parties.] Claim for a legacy, but involving an account of the general
estate of the testator, will not lie against the surviving executor of the testator
alone, but requires the presence of the representatives of the deceased executor as
parties. Penny v. Penny, 55.

2. Discretion of Court.] A discretion is reserved, by the orders of April, 1850, to the
court, at the hearing, to give or refuse relief, or to direct inquiries, having regard to
the parties then before it. Ib.

3. Construction.] Meaning of the words "in the first instance," in the 8th order of
April, 1850. fb.

4. Dismissal of Claim.] Claim for a legacy, involving the general administration of
the testator's estate, and requiring the direction of accounts and inquiries of a very
special character, dismissed, the court holding, that a bill was the proper form of
proceeding. Ib.

5. The decisions of Lord Langdale in Perry v. Knott, 5 Beav. 293, Kellaway v. John
son, Id. 319, and other cases of that class, observed upon. Ib.

Proceedings to enforce Agreement.]

COMPROMISE.

See PRACTICE, 6.

CONSTRUCTION.

1. Legacy to satisfy Breach of Trust.]

See WILL.

2. Under the Metropolitan Improvements Acls.]

See COSTS. See WILL, 2, 3, 4, 5. CLAIM, 3.

CONTRACT.

1. Specific Performance - Disabilities.] The E. C. Railway Company had a bill be-
fore Parliament for making a railway from W. to S., with a line diverging from the
main line to N. One of the objections to the bill was, that the diverging line
would cross another railway line. When the bill was in committee it was ascer-
tained that this objection would be removed, if the company were to obtain an
estate which stood settled (on A for life, with remainders over, which estate, how-
ever, by their bill they would not be authorized to buy. An agreement was
entered into between the company and A, by which the company agreed to pur-
chase this estate from A, and to perform all such acts as might enable A to sell the
estate. The bill was passed, without obtaining any powers to purchase A's estate,
and omitting the diverging line. The line from W. to S., and every thing con-
nected with it, were afterwards abandoned by the company. In a suit by A against
the company for a specific performance of the agreement:-
Held, that they were bound to perform it. Hawkes v. Eastern Counties R. Co., 91.
2. Injunction to restrain Party from Contracting.]

See INJUNCTION, 1.

CONTRIBUTORY.

1. Liability upon Shares sold to Company.]

See WINDING-up Acts, 1.

2. Liability of provisional Committee-men.]

See WINDING-UP Acts, 2, 3.

-

3. Liability for Costs.]

See WINDING-UP ACT, 5.