damages no such principle applies at all, and the jury might give whatever they thought would be the proper equivalent for the unlawful withdrawal of the subject-matter then in question. It seems to me that that broad principle comprehends within it many other things. There is no doubt in many cases a jury would say there really has been no damages at all. We will give the plaintiff a trifling amountnot nominal damages, be it observed, but a trifling amount; in other cases it would be more serious."

In

This case must go back to the registrar. I do not want to say anything which will make a difficult task more difficult. This I think I must say, namely, that in a case like the present there undoubtedly is a rule of law that the fact that a vessel is a non-profit-earning vessel is no reason why damage should not be awarded to the owner against a tortfeasor. a case where a real loss is established principles have been indicated by the application of which it is legitimate to assess the money value of that loss. On the other hand there is no rule of law requiring the registrar to adopt any particular principle, or to award any particular sum in a case where in his opinion no substantial loss has been suffered. The judgments in The Kingsway (122 L. T. Rep. 651; (1918) P. 344; 14 Asp. Mar. Law Cas. 590), both in the court below and in this court, proceed, in my opinion, on this view of the law. The question of quantum in the present case is entirely for the registrar. He has actual facts before him on which to proceed. He has not to consider what may happen, but to deal with what did happen. If in his opinion the Admiralty as representing the owners of a special class of non-profit-earning vessel have, under the particular circumstances of this case, suffered no substantial loss, he is quite entitled to say so, and to award them what Lord Halsbury describes as a trifling amount. The appellants have, in my opinion, established the fact that the registrar did adopt a wrong principle in assessing the damages. The appeal, therefore, must be allowed with costs here and below, and the case remitted to the registrar for reconsideration.

ATKIN, L.J.-In this case the Chekiang collided with H.M.S. Cairo, a light cruiser, at Hankow, and damaged the stern and adjoining plates of the Cairo above the water-line. The damage was repaired at Hongkong, took twenty days to complete, and cost 6751. The plaintiffs have been awarded 6751. for cost of repairs, and 58001. for damages for detention, made up of 2000l. for loss of use, and 3800l., pay and allowances of officers and men. defendants object that the damages for detention are excessive, and have been assessed upon a wrong principle. After the naval authorities had determined to repair the collision damage, and after the Cairo had arrived at Hongkong for that purpose, it was

The

[Vol. 133.-35

[CT. OF APP.

eight weeks to complete, proceeding co currently with the repair of the collisi damage, which, as I have said, took twen days. During the whole of the eight wee the officers and men remained on board t Cairo, some of them being employed in parti in some of the operations of refitting. T claim for loss of use is a claim of 100l. per da arrived at roughly by taking five per cent. the estimated capital value of the vessel the time record, page 3, question 9: "Th has been the principle adopted in other case and is in accordance with the practice of th tribunal? (A.) Yes." This sum has been a cepted without any further demur by th registrar and approved by the president. seems to me clear that it was adopted as beir correct both in principle and in accordan with practice. The claim for officers' and men pay and allowance as made is at the rate 2077. per day, and there seems to be no dispu as to the figure. Twenty days at 2071. per da would amount to 41401. The learned registr has allowed 38007.; so that he has allowed th equivalent of the pay and allowances for th whole period of twenty days, less one-an three-quarter days, or in other words, ha allowed the defendant a deduction of somethin over eight per cent. on the whole amount f the period. It appears to me that the resu has been arrived at on a wrong principle, applying a fixed rule and ignoring consideration which must be relevant to the real inquiry wh is the actual damage suffered by the plaintif "The damages recoverable from a wrongdo in cases of collision at sea must be measure according to the ordinary principles of t common law. Courts of Admiralty have 1 power to give more; they ought not to awa less." This statement of the law by Bowe L. J., in The Argentino (1888, 59 L. T. Rep. 91 at p. 917; 13 Prob. Div. 191, at p. 200; 6 As Mar. Law Cas. 348, at p. 351) has been adopt in the House of Lords, and undoubtedly stat the law binding upon the Admiralty Divisi and ourselves. The application of the princip is succinctly stated by Lord Loreburn, L. in The Marpessa (97 L. T. Rep., at p. 2; (190 A. C., at p. 244; 10 Asp. Mar. Law Cas., p. 464): "Now until the case of The Gre Holme (77 L. T. Rep. 73; (1897) A. C. 590 8 Asp. Mar. Law Cas. 817) the view appea to have prevailed that no damages beyond t actual loss in repairs, loss of wages and so fort could be recovered where an injured ves made no money for its owners and mere rendered services in dredging. That case co rected the error, and decided that in such case general damages might be recovered well as the cost of procuring another vessel do the work; but it did not, and could no lay down a rule of universal application 1 the ascertainment of the damages in ea particular case. For the damages depend up the facts and upon the actual loss sustain by the owner, which will vary in differe

arising from the deprivation of the use of their chattel? It is difficult enough to estimate the damages in this respect where the plaintiffs are the Admiralty suing in respect of the loss of the use of one of His Majesty's ships. In the case of vessels required for continuous use, but not for commercial purposes, it has been stated on eminent authority that the value of the services lost might be measured by the annual cost of the services year in and year out, including their cost of maintenance, interest on capital, and depreciation. See per Lord Loreburn in The Marpessa (sup.). I am not clear that this is intended to be laid down as a general rule; it seems to offend against the statement already made by the Lord Chancellor that no case could lay down a rule of universal application; and it is subject to the criticism directed to such a rule by the president and the Court of Appeal in the very case under appeal, where the decision below was affirmed. Nor is it clear that any such rule is applicable to a ship the value of whose use may vary immensely with the circumstances of the moment, in times of war and in times of settled peace, when commissioned and when laid up. But in any case a rule which is applicable where the plaintiffs are altogether deprived of the beneficial use cannot be applicable when they retain part or the whole of the beneficial use; nor does it appear right that the rule applicable to plaintiffs who but for the collision would in fact have put the vessel to beneficial use should be applied to plaintiffs as to whom it can be proved that during the period of repair they would not have put the vessel to beneficial use. And I think it also follows that if it can be shown that the period of collision damage enabled the owners to execute other repairs, the completion of which otherwise would with reasonable certainty have deprived the owners of some period of beneficial use, the time so saved with all proper discounts for uncertainty, &c., may properly be taken into account. In this case it is plain that the plaintiffs did not lose the whole beneficial use of the ship during the twenty days in question. They occupied her with her officers and men during the whole period; and during the same period were engaged in carrying out her usual annual refit.

In estimating the actual loss to the owners, it seems to me that the above facts must be taken into account as tending to diminish the amount of damages which might be given if there was no such use. Whether the assessing tribunal should award any and what sum after taking into account all relevant factors, is a question for them. It is plain that in awarding the same sum as though there had been complete loss of use, a wrong principle has been adopted. The same considerations apply to the pay and allowances. The officers and men were in fact engaged upon the ship presumably on some, at any rate, of their usual duties; some of them were during the period of collision repair engaged in parties upon the refit. |

the same way apart from t time when the vessel did u refit in accordance with the gramme. It is for the ass take all these matters into estimate what actual loss if sustained by the officers and on the ship dry dock in th and not as they would hav been no collision.

In my opinion there is n on this particular matter, i.e has been made by the own mercial vessel during the p repair, except The Ancathus ( (1902) P. 17; 9 Asp. Mar. L The Austrakhan (102 L. T. P. 175; 11 Asp. Mar. Law Ca of which does the point se expressly argued. In The Sir Francis Jeune dealt in expenses, which appear to me question; and treated the da tion as following the divis expenses. In The Astrakhar Deane, J., for purposes of da tion, deducted from the pe damage the time estimated fo I think that the latter view w expenses appear to me to rais question. They are treated expenses of actual repair; a been incurred primarily for 1 damage they form part of such I do not see how it can be su were to be part of the cost because the owner takes a occasion to use the ship for pur or to use the dock for execut for which he would not have but for collision repairs. If dock not only for repairing th collision, but also for repair time the damage of a secon right that the expenses sh between the two wrongdoers damage to which each is liab engages the dock for the pur not only the collision damage which at that time it is neces his own account to make goo the question seems to be one the dock expenses are in f expenses of repairing the dam which the party sought to be The Ruabon Steamship Com Assurance (81 L. T. Rep. 585 9 Asp. Mar. Law Cas. 2), so far based on a right to contribution so far as it decides that the un bear the dock charges as par repair, it is in accordance expressed above.

I may say with great respe the dicta of Lord Halsbury (82 L. T. Rep. 95; (1900) A. C. Law Cas. 41) as to damages fo

T. OF APP.

llision at the o her annual spective pro; tribunal to leration, and the plaintiffs >eing engaged cumstances— en had there

ect authority
ere some use
f a non-com-
1 of collision

T. Rep. 696;
as. 276), and
539; (1910)
10), in neither
o have been
inthus (sup.)
is with dock
ise a different
res for deten.
of the dock
p.) Bargrave
ges for deten
of collision
Fitting repairs.
orrect. Dock
ch a different
part of the
if they have
iring collision
ision damage.
ted that they
epairs merely

tage of the
es of his own;
other repairs
ged the dock
engages the
amage of one
at the same
ollision, it is
be divided

stimating the

and so if he
e of repairing
also damage
y for him on
In each case
fact whether
part of the
in respect of
ged is liable.
V. London

900) A. C. 6;
che claim was
not relevant;
writers must
E the cost of
h the view
some of

accepted views as to the measure of damages in such cases. One would think that the amount of the owner's loss in being deprived of his horse or his chair must depend upon the actual use which might be expected to be made of the horse or chair during the period of detention. If either could be in constant use there might be one amount of damages; but if it could be shown that neither would be used at all during the period of detention the damages would necessarily be less, though they need not be contemptuous. Small damages for detention of chattels in such circumstances are quite usual in actions of detinue.

For the reasons above given I think that this appeal should be allowed with costs here and below and the report as to items 2 and 3 thereof be rejected and not confirmed, and the claim as to such items be remitted to the registrar and merchant.

LAWRENCE, J.—I concur.

Co.

Solicitors for the appellants, Waltons and

Solicitor for the respondents, Treasury Solicitor.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.

July 15, 16, 30, and Dec. 2, 1924.
(Before EVE, J.)

Re G. STANLEY AND CO. LIMITED. (a) Company Winding-up Guarantor of debt due to bank Fraudulent preference-Bankruptcy Act 1914 (4 & 5 Geo. 5, c. 59), s. 44 (1)— Companies (Consolidation) Act 1908 (8 Edw. 7. c. 69), s. 210.

Where a payment has been made to a principal creditor with the intent to prefer a guarantor of the debt, sect. 44 of the Bankruptcy Act 1914 enables the trustee in bankruptcy or the liquidator in a compulsory winding-up, to recover payment from the person actually preferred.

At the hearing it was held on the evidence that no case of fraudulent preference had been established.

ADJOURNED SUMMONS.

In this summons the liquidator in the windingup compulsorily of this company asked for a declaration that (1) two sums of 250l. paid to Simon Sherwinter, a director, and another two sums amounting together to 15037. 18s. paid to Lloyds Bank between Aug. 1922 and the date of the winding-up order so as to relieve the said Sherwinter of his liability under a guarantee to the bank, were made with a view of giving him a fraudulent preference over the other creditors of the company, and were fraudulent and void as against the applicant ;

and

[CHAN. DIV

It appeared that the company which wa private one was incorporated in 1919, capital being 3000l. in 3000 17. shares and w the object of carrying on business as ma facturers and dealers in furniture. There w only two directors, namely, the responde S. Sherwinter, and his son, who was managing director. For the purpose of car ing on the business the company obtained overdraft at the local branch of Lloyds Ba which was guaranteed by the responde Two payments of 2501. were made by the co pany to the respondent in Aug. and Se 1922 respectively in order to cover payme made by him on behalf of the compa Further sums which had been obtained by company about the same time, partly business transactions and partly by loan a amounting together to 15031. 18s., had b placed to the credit of the company at bank. All these payments were alleged to fraudulent preferences of the compan creditors under sect. 210 of the Compar (Consolidation) Act 1908, and under which summons was taken out. That section vided that (1) Any payment. or other act relating to property which wo if made or done by or against an individual deemed in his bankruptcy a fraudulent ference, shall, if made or done by or agai a company, be deemed in the event of its be wound up a fraudulent preference of creditors and be invalid accordingly.

In the following November a petition presented to the court asking that the comp might be wound up compulsorily, and an or was made thereon accordingly and the ap cant was appointed liquidator thereof.

Clayton, K.C. and Tindale Davis, for applicant, submitted that the payments question all amounted to a fraudulent

ference in favour of S. Sherwinter and w directly within the meaning of the Bankrup Act 1914, s. 44 (1). They admitted, howe that the actual point had not been decid They referred to Re Blackpool Motor Company (1901) 1 Ch. 77), Re Pain; Ex p Read (75 L. T. Rep. 316; (1897) 1 Q. B. 1: and Re Bear; Ex parte Official Receiver (3 M 129).

Bennett, K.C. and G. W. H. Jones, for respondent, raised a preliminary objection t such an order as was asked for on this summ could not go against their client as a guaran Cur, adv. vul

July 30, 1924.-EVE, J.-By this summ the liquidator of G. Stanley and Co. Limited a in substance for a declaration that the payme to the respondent, Simon Sherwinter, of sums of 2501. each and the payment to credit of the company's account with Llo Bank of various other sums amounting 15037. 18s. were made when the company

of the company, and ought to be deemed fraudulent and void as against the applicant, and for payment by the said respondent of the said sums of 2501., 2501., and 1503l. 18s. The respondent does not dispute that the payments were made within the three months and that the company was insolvent, but he denies that any of them were made with a view of giving him a preference over the other creditors, and he argues that in any event the liquidator is not in the circumstances entitled to any order against him for payment of the moneys paid to the company's credit at the bank.

Upon the evidence it was made clear that no case of undue preference could be established in respect of either of the two sums of 2501. They were paid to the respondent to recoup him moneys disbursed by him to take up acceptances for the accommodation of the company, the proceeds of which, less discount, had previously been paid to the company.

The facts relating to the moneys paid to the bank are quite distinct. The respondent and his son were the sole shareholders and only directors of the company, and the former had guaranteed the company's overdraft at Lloyds Bank to the extent of 1500l. It is proved that by recourse to a registered moneylender and by selling for cash at less than cost price goods obtained on credit sums amounting to 15037. 18s. were raised and paid to the bank, and it is alleged that such payments were made with intent to benefit the respondent by reducing his liability under the guarantee and amount to a fraudulent preference. The respondent was in fact called upon to pay the bank 4201. and upwards under the guarantee, and is, therefore, a creditor of the company in respect of that payment.

It is to be observed that the proceedings are not framed as a misfeasance summons seeking to make the respondent liable as a director, but are based expressly on sect. 20 of the Act of 1908. In these circumstances counsel on behalf of the respondent submitted at the close of the applicant's evidence that there was no case made out in respect of the two sums of 2501., and that even if the court came to the conclusion that the payments to the bank were made with a view to giving the respondent a preference, it could only declare the payments fraudulent and void and could not give effect to the declaration by ordering the respondent to pay the amounts to the applicant.

In order to appreciate this submission it is necessary to read the first sub-section of sect. 44 of the Bankruptcy Act 1914. It is in these

terms:

"Every conveyance or transfer of property or charge thereon made, every payment made, every obligation incurred, and every judicial proceeding taken or suffered by any person unable to pay his debts as they become due from his own money in favour of any creditor or of any person in trust for any creditor with a view of giving such creditor or any surety or quarantor for the debt due to such creditor

if the person making, taking, p ing the same is adjudged bankruptcy petition presente months after the date of making or suffering the same, be dee and void as against the truste ruptcy."

Now the creditor to whom the made in this case was the ban to prefer whom the payments have been made was the respo guarantor for the debt due to t common ground that the words or guarantor for the debt due to were inserted in the sub-section in consequence of the decisions of Re Mills (5 Morr. 55) and L. T. Rep. 502; (1900) 2 Q. E former of these cases an attem creditor to whom the payme made refund on the ground th had been made with intent guarantor of the debt, faile person sought to be made liab had received the money, was whom it was intended to I intended to prefer another p the surety for the debt thus pa

In the second case the applic against the surety, but this als the payment having been made creditor, was held not to have to or in favour of the responder

The effect of the two decis was this, that a payment ma whom it was not sought to pref recovered from him because fraudulent preference so far a cerned, nor from the person who to prefer, because the payment to him. The result was that the principal creditor with the the guarantor of the debt so be recovered either from the p or the guarantor, and it was anomaly that the words I have were introduced into the Act.

At the hearing I was impr argument advanced on behalf dent that the statute only co setting aside of the payment, sideration of the authorities ha that the real object of the am section was to enable the tru the payment from the person ferred. Accordingly I overrule objection raised on behalf of and the summons must be rest hearing on an early day next si

Dec. 2, 1924.-The case accor again on this date when, after h ments, his Lordship decided on there was no fraudulent prefer above-mentioned sections.

Summ

Solicitors: H. H. Wells and