Parliamentary Elections and the County of Galway.
In this case the relief sought was a judgment of ouster against the defendant and a further judgment that the relator Furman was entitled to the office.
The judgment recovered was one of ouster of the defendant merely and as to the further relief demanded, it was denied. Still the plaintiff recovered a judgment and as the action was not one cognizable before a justice of the peace, he was, by virtue of § 304 of the code, entitled to costs.
The judgment, therefore, in so far as it adjudges that said defendant Harrison Clute, be ousted from the office of
superintendent of the poor of the county of Schenectady, mentioned in the complaint, in this action, must be affirmed
And, in so far as it adjudges, that the said plaintiff Henry A. Furman, is not entitled, by virtue of the election mentioned in the complaint, to the said office of superintendent of the poor, it must be reversed and judgment must be entered adjudging that the said plaintiff Furman is entitled, by virtue of the said election, to the said office and that the plaintiffs recover, against the defendant the costs of the action and costs of the appeal.
See CRIMINAL LAW, 177, 180, note.
See EXECUTORS AND ADMINISTRATORS.
1. Article 16 of the Admiralty Regula-
tions for preventing Collisions at Sea,
only applies when there is a contin-
uous approaching of two Steamships.
2. When two Ships under steam are
meeting end on, or nearly end on, so
as to involve risk of collision," as pro-
vided for in Article 13, and one of them
at a proper distance ports her helm
sufficiently to put her on a course
which will carry her clear of the
other, and enable her to pass on the
port side, she thereby determines
the risk, and is not approaching an-
other Ship so as “to involve risk of.
collision" within the meaning of
Article 16, and is not bound to slacken
speed or stop. The Jesmond and the
Earl of Elgin.
64
3. When a vessel, casting off from moor-
ings in a navigable river, places her-
self at night partly athwart the fair-
way, so that her regulation lights can-
not be seen by vessels astern of her
coming up the river, she is bound to
make use of some conspicuous signal
to warn them of her position. The
John Fenwick.
154, 156 note
4. The jurisdiction conferred on the
High Court of Admiralty by sect. 5 of
the Admiralty Court Act, 1861 (24
Vict. c. 10), over any claim for ne-
cessaries supplied to any Ship else-
where than in the port to which the
Ship belongs," does not create a Mari-
time lien, or render the Ship charge-
able for necessaries.
5. A British Colonial Vessel
mortgaged by her Owners to B. The
mortgage was duly registered under
the Merchant Shipping Act, 1854. In
February, 1868, whilst lying in the
Port of London, the Appellants, on
the order of the Master, did work and
furnished supplies to the ship neces-
sary to put her in a seaworthy condi-
tion. In July, 1868, B. executed an
instrument transferring the mortgage
to the Respondent. This transfer was
without valuable consideration, and
was not registered, being made to
enable the Respondent to take charge
of the Ship for B., the Mortgagee. In
the same month, the Respondent took
possession of the Ship. The Appel-
lants having instituted a suit against
the Ship to recover the amount due
to them for the work and supplies,
the Respondent intervened. At the
time of the Institution of the suit, the
Ship was under the arrest of the
Court, at the instance of two of her
crew, who had instituted a cause of
wages. The Owners of the Ship
were domiciled in Nova Scotia. The
Ship having been sold, the proceeds
were found insufficient to satisfy the
claim to the Appellants (the material
men) and the Mortgage debt: Held
(affirming the judgment of the Court
below), that the Respondent, the As-
signee of the Mortgagee, was entitled
to have his mortgage debt satisfied
before the Appellants were paid the
amount of their claim. Johnson v.
Black, The two "Ellens."
516
6. The Master of a Prussian Vessel, a
subject of the King of Prussia, having
on board a cargo of nitrate of soda
(contraband of War) under a Charter-
party and Bill of Lading from Pisa-
qua, bound to Cork, Cowes, or Fal-
mouth, for orders to proceed to any
safe port in Great Britain or on the
Continent between Havre and Ham
burg, both included, and there deliver
the cargo," the act of God, the Queen's
enemies, fire, and all and every other
risk, dangers, and accidents of the
seas, rivers, and navigation of what-
ever nature and kind soever ex-
cepted;" arrived at Falmouth on the
10th of July, 1870, and received orders
on the 11th of that month to proceed
to the French port Dunkirk, and there
deliver her cargo. On the Ship's ar-
rival off Dunkirk, on the 16th, the
Master was informed by a French
Pilot that War had broken out be-
tween France and Prussia, where-
upon the Master put back to the
Downs to make inquiries, and an-
chored there on the 17th, which was
Sunday. On the 18th, having tele-
graphed to the Owner of the Vessel
for instructions, he was ordered not
to go to Dunkirk, and on the 19th he
put into Dover, where he was in-
formed, as the fact was, that War,
which had been imminent from the
10th, had been declared between
France and the North German Con-
federation, formal declaration thereof
having been given as upon the 19th
of July:
Held (affirming the decision of the
Admiralty Court), that the Master
was justified in putting back to the
Downs for the purpose of ascertain-
ing whether War had been declared,
and was guilty of no improper devia-
tion or delay in not returning to
Dunkirk before the 19th of July,
when War was actually declared:
7. Held, further that the Master com-
mitted no breach of contract in refus-
ing to deliver the Cargo at Dunkirk,
and as the Charterparty provided
what freight was to be paid if the
Cargo was delivered, the delivery at
Dover was within the terms of the
Charterparty, and the Master was en-
titled to freight for the Cargo from
the Owners before delivery thereof.
8. Semble: Where a Master receives
credible information that if he con-
tinues in the direct course of his
voyage his Ship will be exposed to
some imminent peril, as from Pirates,
or Icebergs, or other dangers of navi-
gation, he is justified in pausing and
deviating from the direct course, and
taking any step that a prudent man
would take for the purpose of avoid
ing the danger. The Teutonia. 526
A master and part owner of a foreign
ship ordered necessaries for the ship.
The necessaries were supplied and
the master became liable for the pay-
ment of the same:
Held, that the persons who supplied
the necessaries were entitled to be
paid for them out of the proceeds
of the ship and freight in priority
to a claim of the master for wages and
disbursements. The Jenny Lind. 606
10. By a charterparty between plaintiff
and defendant it was agreed, that
plaintiff's ship should, with all con-
venient speed, proceed to Sunderland.
and that defendant should there load
the ship in regular turn with a full
cargo of coals, and the ship should
proceed with it to Kiel, and deliver
to freighter or assigns, on payment of
certain freight;" and that, the charter
being concluded by defendant on be
half of another party resident abroad,
all liability of defendant should cease
as soon as he had shipped the said
cargo:"
Held, that this clause only exempted
defendant from liability accruing
after the loading of the cargo; and
that he, therefore, remained liable for
delay in loading, although he had
ultimately loaded a full cargo. Chris-
toffersen v. Hansen.
629
See CRIMINAL LAW, 174, 176 note.
money with interest. Hardy v. Me
tropolitan Land and Finance Co. 327
See LANDLORD and TENANT, 89
PRINCIPAL AND AGENT, 424.
1. Defendant, an auctioneer, sold certain
goods for plaintiff, the owner, on pre-1.
mises occupied by plaintiff and ano-
ther, and in respect of which the
latter owed the landlord rent. By the
conditions of sale each lot was to be
taken to be delivered at the fall of the
hammer, after which time it was to
remain at the exclusive risk of the
purchaser. After the sale, and before
the goods were removed, the landlord
threatened to distrain on the goods,
whereupon the auctioneer paid the
rent, and deducted it from the amount
the goods had realized, and paid over
the balance to the plaintiff':
Held, that the auctioneer was not
justified, as against the plaintiff, in
paying the rent, as, on the sale of each
lot, the property passed to the pur-
chaser, who would have had to bear
the loss if the landlord had distrained.
Sweeting v. Turner.
72
2. The directors of a building society
deposited money, in a manner unau-
thorized by their rules, with a finance
company, the manager of which was
also manager of the building society.
Afterwards the deposit was called in,
and the directors of the finance com-
pany gave a check for the amount to
their manager, to be paid by him to
the building society. He appropriated
it to his own use. A bill was then
filed by the trustees of the building
society to recover the money from
the finance company:
Held, (reversing the decision of the
Master of the Rolls), that the mana-
ger held the money as agent for the
finance company until he should pay
it to some person competent to give
a receipt on behalf of the building
society; and that as he never paid it
over, the money must be taken to be
still in the hands of the finance com-
pany, who were liable to repay it to
the building society:
3. Held, also, that as it was trust
money a suit to recover it was main-
tainable, and the finance company
were accordingly ordered to repay the
Declaration: That by a charterparty
it was agreed that defendant's vessel
should, with all convenient speed,
sail to a spout as directed by plaint-
iffs, and there load a full cargo of
coals; and then, as soon as wind and
weather should permit, should pro-
ceed to Hamburg, and there deliver
the same, the restraint of princes and
rulers (inter alia) excepted. That
plaintiffs did, and were ready to do,
all that was necessary on their parts;
but defendants, before any breach by
plaintiffs of the charterparty, refused
to carry out the charterparty, and to
let their ship take or carry any goods
of plaintiffs to the port of Hamburg,
and gave notice to plaintiffs that
they renounced the charterparty.
Pleas: 5. That before any breach
of the Charterparty, war broke out be-
tween France and Germany, wherein
the port of Hamburg was situate;
that the said port was blockaded by
the French fleet; that the Queen,
by proclamation, enjoined her sub-
jects to a strict neutrality, and not to
commit any violation of the law of
nations; that the defendants were
British subjects, and their ship was a
British ship, and the cargo being a
cargo to be carried to Hamburg, the
further performance of the charter-
party became illegal, and the defend-
ants, as they lawfully might, refused
to carry out the same. 6. Repeating
the above allegations, that defend-
ants having notice of the premises,
refused to allow the ship to receive
a cargo for the purpose of running
the blockade and delivering the cargo
which was the breach complained of.
7. Repeating the same allegations,
that defendants were ready to perform
the charterparty as far as they were
not prevented by any of the excepted
causes; but that the charterparty
could not have been carried out
within a reasonable time, except by
running the blockade, wherefore de-
fendants refused to carry out the
charterparty. On demurrer:
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