CT. OF APP.] DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. April 1880. On the 12th Feb. 1886 the Court of Appeal affirmed the judgment of Bacon, V.C. 66 The company appealed to the House of Lords, and on the 18th July 1887 the House of Lords varied the judgment by allowing to the company the freight and landing charges in respect of the cargoes received by them, so far as the same have not been already repaid to them or allowed to them in account with the Peruvian Government." Lord Watson, who occupied the woolsack, stated that he thought under the circumstances the actual receipt by the company must at least be regarded as a neutral, and not an adverse, act of possession. The counsel for the parties were invited by their Lordships to make any suggestions for varying the terms of the judgment, but no such suggestions were made, and accordingly the inquiry directed by Bacon, V.C. remained as part of the judgment. The inquiry resulted in a finding by the chief clerk of a large sum for damages for detention of cargoes in respect of diminution of gross proceeds owing to sale by the receiver instead of the plaintiffs themselves; increased expenses of sales under orders of court; and damages for loss of interest on those sums and on actual proceeds of the cargoes, computed at 5 per cent. till judgment, less interest gained in court or paid by receiver; and damages for nonpayment of these moneys at 4 per cent. from judgment to the date of the certificate, amounting in all to over 30,0001. The company took out a summons asking that the certificate might be discharged, and the inquiry proceeded with on the footing that the plaintiffs were entitled to no damages, or that the certificates might be varied by finding that no detention took place, or that, if any detention took place, it occurred at Lobos; and lastly, by striking out the whole of the sum found, and by finding that the plaintiffs had sustained no damages. Kay, J. refused the application, and the defendants appealed. On the 21st Nov., previously to the hearing of the appeal, the defendants applied by motion to the Court of Appeal, for liberty to appeal from the portion of the judgment of Baccn, V.C. which directed the above inquiry, but the court refused the motion on the ground that after the proceedings in the House of Lords it was not competent to the court to accede to it. The appeal from the decision of Kay, J. was then heard. Sir Richard Webster (A.-G.), Rigby, Q.C., and Haldane for the appellants. Sir Horace Davey, Q.C., Bigham, Q.C., and Ingle Joyce for the respondents. The following authorities were referred to : Williams v. Peel River Land and Mineral Company, Attorney-General v. Tomline, 43 L. T. Rep. N. S. 486; 15 Ch. Div. 150; Chapman, Morsons, and Co. v. Guardians of Auck- Ferguson v. Wilson, 15 L. T. Rep. N. S. 230; Eastwood v. Lever, 9 L. T. Rep. N. S. 615; 4 De G. Catton v. Wyld, 32 Beav. 266; [CT. OF APP. Davenport v. Rylands, 14 L. T. Rep. N. S. 53; Fritz v. Hobson, 42 L. T. Rep. N. S. 225, 677; 14 Cooper v. Cooper, 59 L. T. Rep. N. S. 1; 13 App. Dent v. The Auction Mart Company, 14 L. T. Rep. Lord Cairns' Act (21 & 22 Vict. c. 27). COTTON, L.J.-This is an appeal from the deci. sion of Kay, J. refusing to vary the chief clerk's certificate. [His Lordship stated the nature of the proceedings, and continued:] Under these circumstances, the defendants have put us in the greatest difficulty. In my opinion we cannot inquire whether the portion of the judgment of Bacon, V.C. which is now in question-no longer his judgment, no longer our judgment, but the judgment of the House of Lords-is right or wrong. But, as there was no actual possession of these cargoes, and therefore detention, in that sense, before the order of the 30th April 1880, it is necessary to ascertain what this inquiry can refer tɔ. I have not thought it right to go through the evidence in this case for the purpose of seeing whether the decision of the Vice-Chancellor was right or wrong, but that decision does assume, and in fact give directions founded only upon this, that there had been that which amounted to detention so as to justify the plaintiffs in asking for and the judge in awarding damages which had been sustained by reason of that detention. It is, however, right to look at the pleadings, because they show what was the case on which the Vice-Chancellor was deciding. [His Lordship referred to the pleadings, and continued:] Now, having regard to these pleadings, in my opinion what the Vice-Chancellor decided was that the defendant company had been guilty, not by setting up this claim in this action but by their action in the matter, of such conduct as amounted to detention, thus preventing the plaintiffs from getting as they would otherwise have done under their bills of lading possession of these cargoes. I do not at all enter into the question whether that was right or wrong. We are not at liberty, in my opinion, to discuss or enter into that question, because the defendants have prevented us from doing so. They contended at the hearing that they had taken possession; they stated how it was that they got possession, and whether they were right or wrong, whether their counsel was right or wrong, in that view or not, in my opinion we must take it that the view of the Vice-Chancellor was based upon that. And it must be remembered that this inquiry was directed after the judgment was delivered, and when the minutes, which as I gather from the shorthand-writer's notes had been prepared by the plaintiffs' counsel, had been handed up, and the Vice-Chancellor requested the counsel then present for the defendants to consider carefully whether the minutes were right and whether the order which he was going to pronounce was right or not, and not one single word was said against this inquiry being directed. Well, therefore, here is the inquiry which embodies in fact a declaration that there had been a detention. It is founded on a decision of the Vice-Chancellor that there was a detention of which the defendants had been guilty, which justified him in holding them liable to damages. In my opinion (it may be very unfortunate) we CT. OF APP.] DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. are not in a position to inquire into that. Whether the House of Lords will think that it can do so I give no opinion at all; but Fry, L.J. suggested that the appellants should go and see whether the House of Lords would think that was still open, having regard to what they had done when the appeal came before them; but the AttorneyGeneral declined, and I think reasonably, to accept that offer and desired the appeal to continue. Then it is said that this finding as to damages is inconsistent altogether with the finding of the House of Lords when that appeal was before the House, and when it was decided that the defendants appealing were entitled to such payments as they had made in consequence of the order of the 30th April 1880. If it could be seen that in fact the decision of the House of Lords was at variance with any such finding we should be put into a great difficulty by the action of the defendants; but I do not think that is really the result of the decision. [His Lordship referred to the proceedings before the House of Lords, and continued:] I think we cannot say that this decision of Bacon, V.C., on which the certificate is founded, is at variance with the decision of the House of Lords. If it be so, the House of Lords, when the matter comes before them, will, if they think they have any power to do so, act upon it as justice may require. Then the real argument against this certificate was, that there was nothing in fact done which would justify the court in granting to the plaintiffs any damages for any. thing which can be called detention on the part of the defendants. That is in fact to reverse the decision, and to strike out this inquiry, which the Vice-Chancellor has directed, because, although it was said that that might be done by giving nominal damages, yet, as I put it to Mr. Rigby, I cannot understand how, if no act has been done by the defendants which justifies any damages being given against them, even nominal damages could be given. If that course is taken, it is assumed that an act has been committed which justifies a claim for damages, but that the damages are so small that the court will not give substantial damages. Very likely juries in exercising their peculiar function do sometimes deal with a case in the way which has been mentioned; but it will not do for Kay, J., or for this court, to exercise that unknown equity which is sometimes exercised by juries; and, in my opinion, we cannot, unless there is some reasonable ground for differing from the finding of the chief clerk as to damages, in any way vary the certificate. It was said that here the chief clerk and Kay, J. have put all the cargoes upon the same footing, and that interest was calculated from the time when the cargoes were landed. That, I think, was on this footing that, if the defendants had not by their acts detained these cargoes, thus preventing the plaintiffs from getting them without recourse to a court of equity, then at that time the plaintiffs would have got possession of the cargoes; and from that time it is that the interest is calculated; that is to say, as from the time when, but for the detention of the defendants, the plaintiffs would have got possession of these cargoes. I cannot see therefore that we can interfere there. There was another point that was argued by Mr. Rigby, namely, that these cargoes could not all have been sold immediately. That really caused [CT. OF APP. some doubt in my mind, whether the certificate was quite correct in fixing a date as if they could be sold immediately. But that point was never raised at all, either in chambers, so far as one can see, looking only to the evidence, or before Kay, J., nor was it really raised by the summons to vary. Therefore, in my opinion, we should be wrong, even if prima facie it seemed to us that the matter might have been differently treated both by the chief clerk in chambers, and by Kay, J., when the matter was before him, when this point was not raised at all by the defendants, to allow them now to have the matter sent back on a point which they had not raised, and which has only occurred to them at the last moment. In my opinion the appeal fails. I should mention that Cooper v. Cooper (ubi sup.) was referred to by Mr. Rigby as a decision of the House of Lords which would enable us and require us to act according to his contention here as regards this inquiry as to damages. But that was a different case. There the matter was before the House of Lords, and, although there was a question whether the interlocutor of the Court of Session could be appealed from, yet the matter was before them, and they taking a different view as to the law which ought to govern the case, and having the matter before them, were at liberty to act, and did act upon that view so as to decide the case on the law really applicable to the case before them. But here we are in a very different position after the affirmation of the judgment of the Vice-Chancellor, both on appeal to this court and on appeal from this court to the House of Lords. BOWEN, L.J.-I regret that I am unable to take the same view as the Lord Justice. This unhappy case has got into a tangle, which my brother Cotton, L.J. thinks absolutely desperate, but which I think is capable, even at this eleventh hour, of still being remedied without there being applied to it so drastic a measure as that which destroyed the Gordian knot. To put it broadly, it seems to me that the conclusion at which the Lord Justice has arrived does not give adequate effect to the law as laid down in the judgment of the House of Lords, and I do not myself feel the same difficulty that he does in discovering a way in which due effect can be given to it. Now, the facts of this case I do not propose to discuss, except so far as they are uncontroverted. I will only mention a few of the uncontroverted facts, in order to make the remainder of my reasoning intelligible. Eleven cargoes of guano started from Lobos for England in ships which were chartered at the risk and on account of the Peruvian Government by the company, the defendants in this action. A quarrel took place on the other side of the seas, in consequence of which the Peruvian Government determined the right so far as they could, and in law I think they did determine the right of the guano company to take delivery of these cargoes as agents for the Peruvian Government or otherwise upon the remainder of the ships, and they further transferred the title to the guano which was in themselves, and the right accordingly to take delivery, to the plaintiffs in this action. The title of the plaintiffs accrued while the ships were sailing across the seas. The ships arrived at intervals. Two of them, I will assume, were taken possession of, and wrongfully taken possession of, by the defendants. I will assume that for the pur CT. OF APP.] DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. poses of my judgment. The remainder were still on their way when a writ was issued to raise the real question between the parties, which was as to the right to take possession of the cargoes a writ which, as regards the two ships which had already arrived, might be based upon a wrong already done and threatened to be continued, but which, with regard to the other ships which were still on the sea, for anything we know, was simply in the nature of a quia timet action to prevent a threat which had been expressed from being exercised. A few days after the writ an order was made in the action by consent, in which it was agreed, obviously in the interests of both parties as they thought-for it is unimportant to consider whether the order has worked out to the detriment of one more than the otherthat the receipt of the cargoes of guano by the defendants should be without prejudice to any question between the parties, that they would keep separate accounts of expenditure and receipts in respect of the cargoes and abide by any order which the court should make with respect to the cargoes. Now, two things seem to me to be perfectly clear: the one, that eight or nine of the ships-I will call it nine for the purposes of my judgment without investigating the question as to the number-were upon the high seas at the time when that order was made, and the cargoes were taken possession of by the defendants under that order. The second thing that seems to me to be perfectly clear is, that the ratio decidendi of the House of Lords in the case which went before them was, that no wrongful act consisted in the taking possession of any cargoes under that order. It was necessary for the House of Lords so to decide. The point made was, that the reimbursement of the freight which the defendants claimed would be inequitable and unjust, as they were wrongdoers in respect of the taking of possession. The House of Lords said they were not wrongdoers in respect of the taking of possession, and that therefore the point made could not arise. I pause for one moment to observe that the House of Lords did not feel themselves hampered in coming to that conclusion as to the wrongful possession taken under the order by the mere fact that an order for an inquiry had been made in the action, which was not appealed against, and which seemed to assume the detention of all the cargoes. Now, these two things seem to me to be perfectly clear: first, the ratio decidendi of the House of Lords; and secondly, that, as regards nine of the ships, if no other act were done in respect of them-and, as far as we know, nothing was done, though it will be seen presently I do not conclude that question-than the mere taking possession under that order, that was not wrongful. Having said so much as to what seems to me to be clear, I proceed to state wherein the difficulty_now arises, and in order to explain that I must review shortly the course which this action took. The action when launched, as I have said, was, for anything that appears to the contrary on the facts before us as regards several of the cargoes, a quia timet action. At the time when the action came to be tried, and I think at the time when the pleadings were delivered, the cargoes had been successively arriving. At the time when the action was tried they all had arrived, and had been taken posses. [CT. OF APP. sion of. In the pleadings after the order of the 30th April 1880, it was useless for the defendants to deny the mere fact of possession of the cargoes. They either had received them, or were going to receive them. The point they desired to make was, that they had a right to receive them and a title to the proceeds after the sale under a contract with the Peruvian Government. Now I do not myself see that the mere fact that on their pleadings, when the question was one of right, they allege that the possession which they had admitted they had of the cargoes was under a contract with the Peruvian Government in any way prevents them setting up the fact that the possession was rightful, if that particular point under which they sought to justify it should fail. I think it was an alternative allegation which does not prevent them showing that the court had decided the truth. If it did, it seems to me it ought to have been an answer on the appeal to the House of Lords that they had admitted a wrongful possession, and had claimed a possession only in virtue of a contract which could not avail them, and that therefore there was a wrongful act or a detention. At the time when the Vice-Chancellor tried the action it appears to me (I do not hesitate to say it, because one can say it without disrespect to the eminent counsel who have conducted the case) that by an error in judgment counsel did not address themselves to one of the real points in the action, which since has been seen, by the light of subsequent investigation to be important, namely, whether there was any wrongful act at all in respect of nine at least of the cargoes. They admitted the possession, justifying it only upon their title. The Vice-Chancellor found that they were in possession. It was not disputed. He said it was admitted, and he ordered an inquiry as to damages upon that footing. The matter came to this court, and though the order as to damages was in form appealed from, it was not in fact, because that portion of the appeal was abandoned during the argument. From this court they went to the House of Lords, and they still continued their policy of abandoning the appeal against that order for inquiry, and accordingly in the event the House of Lords did not disturb the portion of the judgment of Bacon, V.C., which they were not asked to disturb, and nobody perceiving the importance of the lapse, this strange result has followed, that the House of Lords have declared that there was no wrongful act done in taking possession under the order of the 30th April 1880, but have left undisturbed an order for an inquiry which proceeds upon the footing that there was detention of all the cargoes, an order the maintenance of which can only be explained in one of two ways, either that it was an oversight, or that there were other possible acts of detention in respect of all the cargoes over and above the mere taking possession under the order of the 30th April. But, as I said before, one thing is clear, that the House of Lords have declared that one class of acts done in respect of these ships was not a wrongful detention, namely, the taking possession under the order of the 30th April 1880. Now, the parties went back under this inquiry. The chief clerk in his certificate has, in my opinion, fallen into error. The vice of his certificate appears to me to be this, that, although it is evident that it CT. OF APP.] DREYFUS AND Co. v. THE PERUVIAN GUANO COMPANY. was necessary to discriminate between the various acts done with respect to these cargoes, because as to one class of acts the House of Lords has declared nothing to be wrongful in that particular, the chief clerk has lumped all the ships together and assessed the damages upon a footing which leaves it open at all events to the view, and in my opinion necessitates the view, that he has as regards the whole of the ships treated as a wrongful act that very matter which the House of Lords said was not wrongful. The vice of the certificate is, that it lumps the ships together. Can that be set right? Sir Horace Davey, in the first place protesting that he was not bound to argue the facts of the case, assumed for the purpose of his argument that there had been no tortious act in law at all; nevertheless he said there was nothing wrong in giving damages, because Lord Cairns' Act clothed the Court of Chancery with the jurisdiction, where no wrong had been done in law at all, nevertheless on a threat of injury which would give rise to the jurisdiction for injunction, to give damages in substitution for such injunction. I speak with perfect consciousness that I am only a proselyte at the gate in matters of equity, and what I have learned about it has been learned from wiser people than myself who sit with me; but I am still giving my opinion as I am entitled and bound to do. I am of opinion that the 2nd section of 20 & 21 Vict. c. 27, commonly called Lord Cairns' Act, did not clothe the Court of Chancery with such a jurisdiction. It is true the section applies in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction, but the only weapon with which the court is armed by virtue of the section is to award damages to a party injured, which must, I think, mean damages where damages have arisen, and in a case where no damages have arisen in the ordinary sense of the term as known to lawyers, I am of opinion the court has no power to give damages. I should be alarmed if that were my opinion only; but I believe I am justified in saying that my learned brother Cotton, L.J. agrees with me in that, and I will leave my other learned brother to say whether he differs from me or not. But this I may say, as it was asserted by Sir Horace Davey -at least Sir Horace Davey seemed to put it forward as a proposition-that the practice in the Courts of Chancery had been in favour of his view. I have consulted others who are familiar with the practice among my colleagues, and I am told they are not aware of any such practice. I am specially informed by one who certainly can speak with authority on the point, that the view which I am now taking on this subject is the view taken by the late Master of the Rolls. Sir Horace Davey, however, went further and put forward a moral justification of the view. He said that these plaintiffs had been kept out of their property for many years, and that they ought to be compensated. The term "kept out of their property," seems to me to beg the question. If all that has been done is to threaten, and in consequence of a threat they have come to an arrangement that the cargoes shall be placed in the hands of the defendants to do their best with them, that threat and that consent order, although it may have been detrimental to the interests of the plaintiffs, is not a keeping out of [CT. OF APP. possession which may give rise to damages under Lord Cairns' Act. The truth is, that the expression begs the question. They were kept out of a great portion of their property by reason of entering into the order of the 30th April 1880; that is to say, they kept themselves out of it. I regret very much that they were driven by a wrongful threat into consenting to that order, but it does not enable anyone to strain the law and to find under the heads of damages any acts which, as far as I know, there is no authority for treating as a source from which damages can flow. But then, if Lord Cairns' Act does not apply, is there any wrongful act which can be assigned as an explanation of the Vice-Chancellor's judgment? Sir Horace Davey protested against being compelled to discuss that question, and I do not propose to decide it, because I do not consider that we have the materials on this appeal, or certainly they have not been brought to our attention in argument in a way that enables one to be quite certain on the point. One thing I do myself think, and that is, that Bacon, V.C. only proceeded, so far as I read his written judgment, upon the assumption that there had been a possession taken, and that that possession could not be justified, and he assumed that that made an act of detention-a view which is, as regards a certain number of the cargoes, invalidated in my mind in law by the judgment of the House of Lords. There was the carriage of the guano across the Atlantic. The title of the plaintiffs began after it arrived, and the defendants were merely charterers of the vessels. There were directions given at the ports of call. I can conceive directions given as to a port of discharge which might amount to acts of trespass; but we have not got the facts here before us to enable us to say what was done in respect of the indication at the port of discharge, if any thing was done which could by any human imagination be construed as amounting to a wrongful act or an act of trespass. But I do not investigate the question as to what was done with respect to it, because I do not know that I can do so effectively. There may have been, and I believe there was with regard to one cargo, a wrongful act even after the order of the 30th April was agreed to, and in respect of any wrongful sale after the order I am not prepared to say that that might not be a source of damages under Lord Cairns' Act done before the inquiry as to damages; and it might be that the extension-if it be an extension-of the principle laid down in the case of Williams v. Peel River Land and Mineral Company, and acted upon by brother Fry, L.J. in the case which was cited of Fritz v. Hobson, and subsequently embodied, I believe, in an order under the Judicature Act, would apply to such a case. I leave that open. Finally, there is the possession under the order of the 30th April 1880; but I will not assume for this purpose that even that order justifies everything that was done as regards all the cargoes. I should require, before I came to that conclusion, to know exactly what was done with respect to the two which had been already landed, and whether it was possible, notwithstanding the expression of opinion of the House of Lords, that for the purposes of freight all the cargoes were to be taken as being in the same boat, still to differentiate the case of these two cargoes in respect of the acts done before CT. OF APP.] DREYFUS AND CO. v. THE PERUVIAN GUANO COMPANY. the order of the 30th April 1880. I leave that still open. I come back to this, that although the history of these cargoes differs, that although as regards a large number of them it is obvious that the possession was taken under the consent order, and was not wrongful according to the view of the House of Lords, the chief clerk has made no distinction between any of those cargoes, has lumped them together, has possibly, I say probably or certainly, proceeded upon the view that the taking possession under the order was itself an act of detention from which damages would flow, and in that view to my mind his certificate is bad. His certificate states that he takes the damages from the arrival of the cargoes upon land. Now how far is it true that he was driven by this order of inquiry to go this length ? That order of inquiry directs that there shall be an investigation as to what damages have flowed from the detention of the eleven ships. Sir Horace Davey suggested that, if there had been no possible damages at all, the words "if any' ought to have been introduced after "damages; and that the order ought to have run for an investigation as to the damages, if any, which flowed from the detention of any of the eleven cargoes. I think that is so. I think the stage at which this order was made indicates that the court assumed that there would be damages in respect of these cargoes; but I draw the line there, and I protest that it does not follow from that that the court declared that substantial damages must be given. No authority can be found for that proposition. It is untrue as regards the form of rules of inquiry with which I am acquainted. I will mention, for example, the case of bonds and the inquiry directed by statute with regard to them, and also the form of a writ of inquiry under the Judicature Act when a judgment is given by default. The court to my mind does not find that there are substantial damages. What is true is, that the court finds that there has been a wrong and assumes that there may be substantial damages, not that there must be. It is for the chief clerk to inquire, it seems to me, and I cannot myself understand why a chief clerk would not be justified under such an order in finding there were nominal damages only in respect of one or more or all of these ships. Suppose for a moment the case of a single one of these ships; suppose it was clear to demonstration that one of these ships had been inserted in the order by a mere mistake, that there had been no detention at all of the ship, and that the ship, so far from being taken possession of by the defendants, had been taken possession of by the plaintiffs, had been sold by them, and they had appropriated the profits. Is the chief clerk positively bound to give more than nominal damages in such a case? He may be constrained by the form of the order to assume that there is a detention, but he may look to see what the detention is in order that he may know what damages flow from it. To my mind it would be extraordinary indeed if a chief clerk was bound to look to find damages without knowing what the acts of detention were in respect of which he found them. He must look to see what the detention is in order to know whether the damages are too remote, and I think that, if it was clear that there had been no possible act of detention as to any one or more of these ships, I should feel myself [CT. OF APP. no hesitation (but then, as I said before, I am only a proselyte at the gate) in saying that, upon tender of nominal damages in such a case, and payment of nominal damages all further proceedings on the inquiry might be stayed. But this is not really necessary, from my point of view, to decide. As I said, I consider the vice of the chief clerk's certificate is that he has lumped all these ships together. I am ready to assume that there may be in the case of all the ships some other acts of detention than those which lie upon the surface in respect of what was done under the order of the 30th April 1880. There may have been something done in the indication at the port of discharge, and there may have been something done in respect of the ships taken possession of whose cargoes were landed, and there may have been something wrongfully done in respect of the cargoes that were landed under the order of the 30th April 1880. All that is for the chief clerk to state. As soon as it is seen that by lumping the ships together he has done injustice, he ought to be called upon to state, as he has acted upon this view hitherto, what are the acts of detention in respect of each of these ships on which he relies, and what are the damages which he assesses in respect of them. To my mind therefore the right way of dealing with this case is to declare, in accordance with the opinion of the House of Lords, that no act of possession merely taken under the order of the 30th April is a wrongful act or gives right to any damages at all; refer back to the chief clerk to state with regard to these eleven ships what are the wrongful act or acts of detention in respect of which he finds damages, and what damages he finds in respect of them. I ought to say that that form of reference, if it was followed by the court, would leave it open to the chief clerk, as I understand it and as I intend it, to rectify the error into which he seems to have fallen (for no argument was addressed to us by Sir Horace Davey to prove that he had not fallen into it) as to the calculation of the dates from which the interest should run. There is a difficulty about costs. The costs of the inquiry are reserved. I think the costs of the appeal in this case ought to be borne by the respondents. As to the costs in the court below, in consequence of the tangle in which the case has been involved I should make no order, but should leave either party to bear those. FRY, L.J.-In my judgment, the course pursued by the appellants has placed the court in a cruel difficulty, and I have never felt myself so much embarrassed as I have in this case. It appears to me that, whatever course this court takes, there is a danger that we are acting in some way at variance with the decision of the House of Lords. If we take one course, we seem to me to be going counter to the expressed opinion of the learned Lords; if we take the other, we seem to me to be reversing a portion of the decree which the House of Lords has thought fit to affirm. I will consider the case in the first place independently of the recent decision of the House of Lords, and I shall imagine myself to be filling the chair filled by Kay, J. as successor to Bacon, V.C., and as working out the judgment which the Vice-Chancellor pronounced. Of course, when the same judge works out the decree which he himself has pronounced, he probably knows without difficulty the meaning of |