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pilot as to the orders that should be given, not amounting to
an interference, will not transjer the responsibility to the
master, so as to render the owners liable if the order is a
negligent one.

It is within the province of the pilot compulsorily in
charge of a vessel to decide whether the state of the weather
is or is not such as to render it imprudent to get under
way.

But, semble, the fog may be so dense that the captain
of a ship would not be exonerated if he allowed his vessel to
be got under way.



296 ADMIRALTY.

The Shipper of Goods to be carried on Deck which are jettisoned
is not entitled to Contribution by way of General Average.

WEIGHT v. MAR WOOD. [1881]

(50 L. J. Q. B. 643 ; 7Q.B. D. 62 ; 45 L. T. 297 ; 29 W. R. 673 ;

4 Asp. M. C. 451.)

The defendant shipowners contracted with the plaintiff to
carry his cattle, on deck, from New York to Portsmouth. No
custom to carry cattle on deck existed. During the voyage the
ship encountered heavy weather, and the master made a proper
and necessary jettison of the cattle.

He Id , that when such a sacrifice is made, as was here,
for the common good, as a rule it comes within general
average, and must be borne proportionately by those in-
terested. To this rule there is an exception, namely, deck
cargo jettisoned is not entitled to general average contri-
bution, and therefore the plaintiff was not entitled to
contribution by the defendants in respect of his loss either
by way of general average on ship, freight and cargo, or as
a particular right to contribution from the defendants alone.



A Wrong Manoeuvre by one Ship which places another in ex-
treme Danger will exonerate that other if she, not being
manoeuvred with perfect skill and presence of mind, does
something wrong.

THE BYWELL CASTLE. [1879]
(4 P. D. 219 ; 41 L. T. 747 ; 28 W. R. 293 ; 4 Asp. M. C. 207.)

The Princess Alice, a pleasure steamer, was going down the
Thames after dark on the evening of the 3rd of September,
1878, while the Bywell Castle was going in the opposite direc-
tion on a parallel course, so that if their respective courses had



ADMIRALTY. 297

been continued they would have passed at a safe distance from each
other. When a very short distance intervened between the two
vessels, the master of the Princess Alice ordered the helm to be
put a-starboard, by which he brought his vessel athwart the
bows of the Bywell Castle. The two ships being so close
together his manoeuvre rendered a collision inevitable. The
Bijivell Castle, which had up to that point been navigated with
due care and skill, was then hard a-ported. The two ships
collided, and the Princess Alice went down, and more than 500
of her passengers and many of her crew, including the captain,
were drowned. It was found that the Princess Alice was navi-
gated in a careless and reckless manner, without due observance
of the regulations, look-out and speed, and that although the
Bynell Castle, when the two ships were close together, had
wrongly manoeuvred in going hard to port, yet that manoeuvre
did not have the slightest appreciable effect upon the collision.

Held, the Princess Alice was alone to blame, for a
ship has no right by its own misconduct to put another ship
into a situation of extreme peril. If in that moment of
extreme peril and difficulty such other ship happens to do
something wrong so as to be a contributory to the mischief,
that would not render her liable for the damage, inasmuch
as perfect presence of mind, accurate judgment, and
promptitude under all circumstances are not to be expected.



298 PROCEDURE.



PROCEDURE.



The Defendant is entitled to Unconditional Leave to Defend under
Ord. XIV. where there is a Triable Issue although it may
appear that the Defence is not likely to succeed.

JACOBS r. BOOTH'S DISTILLERY CO. [1901]
(85 L. T. 262 ; 50 W. E. 49— H. L. (E.).)

The defendant Jacobs in this case signed a memorandum of
charge and two promissory notes with a co-defendant, who did
not contest his liability, to secure an advance and further moneys.
He received an indemnity from his co-defendant, and stated
that he had been told that he incurred no liability by signing,
and that he had signed the memorandum and two promissory
notes relying on that representation.

The plaintiffs brought their action for 3,294/., the amount
due from the defendants. On an application under Ord. XIV.
the Master ordered the amount to be paid into Court within
seven days, with judgment if the sum was not so paid, and this
order was affirmed on appeal by the judge at Chambers and by
the Court of Appeal.

Held, by Ike House of Lords, where there is a triable
issue, though it may appear that the defence is not likely to
succeed, the defendant should not be shut out from laying
his defence before the Court, cither by having judgment
entered against him or by being put under terms to pay
money into Court as a condition of obtaining leave to
defend.



PROCEDURE. 299

Judgment against one of two Persons severally liable precludes
the Plaintiff proceeding against the other Person, as
Ord. XIV., rule 5, does not apply. Where the Liability is
Joint, the Plaintiff may sign Final Judgment against one
without prejudice to his right to proceed against the
other.

MOREL BROS. v. EARL OF WESTMORLAND AND WIFE.

[1904]

(73 L. J. K. B. 93 ; (1904) A. C. 11 ; 89 L. T. 702 ; 52 W. R. 353 ;

20 Times Rep. 38.)

The plaintiff brought this action to recover the price of wines
and other goods supplied to the defendants, and signed judg-
ment under Ord. XIV. against the Countess of Westmorland.

The judgment was not, however, satisfied, and the plaintiff
therefore proceeded against the Earl, her husband.

Held, the plaintiff having by entering judgment against
the wife as the agent of her husband elected to look to
her alone as the contracting party, cannot get judgment
against the principal ; also, as the remedy being an alter-
native one, cannot be made available against the two,
Ord. XIV., rule 5, does not apply.

If the plaintiff had been able to establish a joint liability
the plaintiff would not have been prejudiced by signing judg-
ment under Ord. XIV. against one of the joint debtors, but
might go on and show that the other debtor was a joint
debtor.

Note. — Ord. XIV., rule 5, provides: If it appears to the judge
that any defendant has a good defence, or ought to be permitted to
defend the action, and that any other defendant has not such
defence and ought not to be permitted to defend, the former may
be permitted to defend, and the plaintiff shall be entitled to enter
final judgment against the latter, and may issue execution upon
such judgment without prejudice to his right to proceed with his
action against the former.



300 PROCEDURE.

If a necessary Co-Plaintiff refuses to join as Plaintiff after being
tendered an Indemnity against Costs he should be made a
Defendant.

CULLEN v. KNOWLES AND BIRKS. [1898]

(67 L. J. Q. B. 821 ; (1898) 2 Q. B. 380.)

The plaintiff brought this action claiming damages for breach
of contract to purchase a patent. The defendant Birks was the
co-owner with the plaintiff of the patent but refused to allow
his name to be used as a plaintiff, although an indemnity for
costs had been tendered.

By his defence the defendant Knowles relied on the conten-
tion that the contract sought to be enforced was a joint contract
between himself and the plaintiff and the defendant Birks, and
that the plaintiff could not by himself maintain any action in
respect thereof.

Held, that Orel. X VI is explicit, that no person can be
joined as a plaintiff without his consent in writing, and that
therefore the plaintiff was entitled, after Jus co-owner had
been tendered an indemnity against costs and had refused to
be joined as -plaintiff in this action, to enforce a right in
which they were jointly interested to join him as a defendant
to the action.



Where the same Libel is published in seventeen Newspapers,

separate Actions must be brought against each to recover

Damages from all. An order may, however, be made staying

all the Actions but one pending the Trial of one as a Test

Action.

COLLEDOE v. PIKE. [1887]

(56 L. T. 124 ; 3 Times L. E. 126.)

The plaintiff brought this action against the defendant for
damages for publication of a libel in his newspaper. He also
brought sixteen separate actions against sixteen other publishers



PROCEDURE. 301

of newspapers for publishing the same libel in their respective
newspapers. The owners of the seventeen newspapers there-
upon made an application that all these actions might be
consolidated.

Held, the application to consolidate the seventeen actions
must be refused, for although the libel was the same in each
case, yet the circumstances attending the publication of each
being different, the cause of action in the several cases was
different.

A stag of all the actions but one will, however, be granted
pending the trial of one as a test action.



A Solicitor's Bill is a Claim for a liquidated amount under
Ord. III., rule 6, although liable to Taxation.

SMITH v. ED WAEDES. [1888]
(58 L. J. Q. B. 227 ; 22 Q. B. D. 10 ; 60 L. T. 10 ; 37 W. E. 112.)

The plaintiff made an application under Ord. XIV., rule 1,
for leave to sign final judgment for the amount of a solicitor's
untaxed bill of costs.

Held, this was a proper application under Ord. XIV.,
rule 1, and that the proper form of the order was that the
bill of costs be referred to the Taxing Master, the plaintiff
to give credit at the time of the taxation for all sums of
money received by him from or on account of the defendant,
and that the plaintiff be at liberty to sign final judgment for
the amount of the Masters allocatur in the said taxation.

This order preserves to the parties their rights as to the
cost of the taxation and as to objections to the taxation and
appeal.

An allocatur (it is allowed) is a certificate by a Master allowing
costs.



302 PROCEDURE.

A specially indorsed Writ must set forth a full and complete
Statement of the Claim and Cause of Action.

FRUHAUF v. GROSVENOR & CO. [1892]
(61 L. J. Q. B. 717 ; 67 L. T. 350 ; 8 Times Rep. 744.)

The Master had refused the plaintiff's application to sign
final judgment under Ord. XIV., rule 1, upon the ground that
the writ was improperly indorsed. The indorsement was as
follows : —

" The plaintiff's claim is 28*2/. 2s. 3d., balance of principal
and charges due on a dishonoured cheque, and money had
aud received by defendants to plaintiff's use."
Then followed particulars showing how the plaintiff's claim was
arrived at.

The question was whether the omission of an allegation in
the indorsement of the writ that the defendants had received
due notice of the dishonour of their cheque precluded the
plaintiff from obtaining an order for final judgment.

Held) per Lord Coleridge, C.J., the indorsement was not
sufficient. Where the machinery of a specially indorsed
writ is put in motion^ the statement of claim indorsed must
set forth a full and complete statement. Here the state-
ment of the writ is not complete without an allegation of
notice of dishonour, or of facts dispensing with it.



Where a number of Persons have the same Interest in a Cause or
Matter, one of the Persons so interested may sue on behalf
of all the Persons so interested.

BEDFORD v. ELLIS AND FIVE OTHERS. [1901]
(70 L. J. Ch. 102 ; (1901) A. C. 1 ; 83 L. T. 686; 17 Times

Rep. 139.)

Ellis and five others, on behalf of themselves and all others
the growers of fruit, flowers, vegetables, roots or herbs, sued the



PROCEDURE. 303

Duke of Bedford, the owner of Covent Garden Market, alleging
infringement of their statutory rights by the defendant, and
claiming an injunction and other relief. It was contended on
behalf of the defendant that the plaintiffs were not entitled
to be joined as such.

Held, the plaintiff's were entitled to be Joined, for where
there is a common interest and a common grievance, a repre-
sentative action is in order if the relief sought is in its nature
beneficial to all whom the plaintiffs purpose to represent ;
and the rule is not limited to persons having a beneficial
proprietary interest. And if the alleged rights of the class
represented are being denied or ignored, it is of no moment
whether or not the nominal plaintiffs have been wronged in
their individual capacity.



Either the Plaintiff or Defendant is entitled to a Jury unless the

case is one in which the Judge has under Ord. XIV. given

leave to defend upon terms that the Trial shall be without a

Jury.

WOLFE v. DE BEAAM. [1899]

(81 L. T. 533 ; 48 W. K. 161 ; 16 Times Eep. 61.)

Upon an application under Ord. XIV. for leave to enter final
judgment, the judge made an order giving unconditional leave
to defend ; and ordered the action to be put into the short
cause list. The defendant then applied, on the summons for
directions, for an order for a trial with a jury, but the judge
refused to make the order.

Held {allowing the appeal), that although the judge might
have given leave to defend upon the terms that the trial
should be without a jury , yet, as this had not been done, the
defendant was entitled to an order for a trial with a jury
under Ord, XXXVI., rule 6.



304 PROCEDURE.

Where the Defendant has not entered an Appearance and the
Writ is not specially indorsed, the Plaintiff must file a
Statement of Claim before signing Judgment by Default,
although the Writ is indorsed for Trial without Pleadings.

GREENE v. THE ST. JOHN'S MANSIONS (Liu.). [1900 J
(35 L. J. N. C. 49 ; W. N. (1900) 9 ; 44 Sol. Jo. 175.)

The plaintiff moved ex parte, for judgment against the
defendant in default of appearance. The writ in this action
was indorsed as follows : — " Plaintiff's claim is for a declaration
that the written agreement of the 6th day of April, 1898, and
made between the Rev. Charles Philip Greene of the first part,
the Ecclesiastical Commissioners for England of the second part,
Edward Wentworth Bowyer and Fairfax Blomfield Waite of the
third part, and the defendants of the fourth part, whereby the
defendants agreed to erect certain buildings on the glebe land
belonging to the rectory of Holy Trinity, Clapham, described
in the said agreement, is determined and at an end, and that
the sum of 300/. therein mentioned has been forfeited to the
Ecclesiastical Commissioners.

" If the defendants appear to this writ of summons, the plain-
tiff intends to proceed without pleadings."

A question arose as to whether the plaintiffs having, in pur-
suance of Ord. XVIIIa., rule 6, stated their intention to proceed
to trial without pleadings, it was necessary for them to file a
statement of claim before signing judgment by default.

Held, that a statement of claim must be filed.



If Material Facts are not pleaded, Evidence cannot be given of
them at the Trial except on Terms.

BROOK v. BROOK. [1887]
(56 L. J. P. 108 ; 12 P. D. 19 ; 57 L. T. 425 ; 35 W. R. 351.)

This was a wife's petition for dissolution of marriage on the
ground of her husband's adultery, cruelty and desertion.



PROCEDURE. 305

The following were the allegations in the petition as to
cruelty : —

" That the said J. S. Brook was during all the cohabitation
frequently drunk and treated her with cruelty. That he
frequently disturbed her when lying in child -bed, and
threatened her with violence and injured her health. That
he wilfully neglected to provide her and her children with
sufficient food and clothing. That he drew a carving-knife
across her throat and caused her great fear."

At the trial it was sought to give evidence of specific acts of
cruelty by striking.

Held, per Butt, J. : I do not think that a man ought to
be charged with striking his wife without having due notice
of it in the petition, which says nothing about a blow. I
zvill allow the petition to be amended, but the respondent is
entitled, if he desire it, to an adjournment to enable him to
meet the charge.



It is no part of the Statement of Claim to anticipate the Defence
and to state what the Plaintiff would have to say in answer
to it.

HALL v. EVE. [1876]

(46 L. J. Ch. 145 ; 4 C. D. 341 ; 35 L. T. 926 ; 25 W. E, 177.)

The plaintiffs, in their reply to the defendants' statement of
defence, pleaded a traverse to the statements contained in the
defence, and further, that if those statements were true, they had
a further answer to them, the plaintiffs thus traversing and
avoiding the defendants' defence.

The defence contended that this could not be pleaded by way
of reply, but should be pleaded by amending the statement of
claim.

J. x



306 PROCEDURE.

Held, the traverse and avoidance was properly pleaded,
for it is no part of the statement of claim to anticipate the
defence, and to state tvhat the plaintiff ivould have to say in
answer to it, for in pleading you must not leap till you come
to the stile.



Undue delay will Defeat the Right to strike out Pleadings on the
ground that they disclose no cause of Action.

CROSS v. HOWE. [1892]
(62 L. J. Ch. 342; 3 R. 218.)

The defendant applied to have the plaintiff's statement of
claim struck out as frivolous and vexatious.

Held, the defendant not having made the application until
the pleadings ivere closed and the action set down for trial,
the Court would not, on the ground of delay, grant the
application which ivould otherwise have been acceded to.



The object of Particulars is to ascertain the Case that has to be
met at Trial so as to save unnecessary Expense and prevent
Parties being taken by Surprise.

SPEDDING v. FITZPATRICK. [1888]
(58 L. J. Ch. 139 ; 38 C. D. 410 ; 59 L. T. 492 ; 37 W. R. 20.)

A plaintiff brought an action to restrain the defendants from
trespassing on a certain occupation road. The defendants, by
their amended defence, stated that the said road had for very
many years past been used as of right as a foot and horse way,
and that the road had been dedicated to the public by the
plaintiff or her predecessors in title, or some of them. On an



MENS REA. 307

application for particulars, which was heard on appeal by the
Court of Appeal —

Held, that the order ought to be : u If the defendants
rely on any specific acts of dedication, or specific declara-
tions of intention to dedicate, whether alone or jointly with
evidence of user, let the defendants, within fourteen days,
set forth the nature and dates of the said acts or declara-
tions, and the names of the persons by whom the same were
madeP

That the object of particulars is to enable the party
asking for them to know what case he has to meet at the
trial, so that unnecessary expense may be saved and that
parties may not be taken by surprise.



CRIMINAL LAW.



MENS REA.



Mens rea is necessary to constitute Crime. A Second Marriage
entered into in good faith and on reasonable grounds of
belief in the death of husband or wife does not, therefore,
constitute the Crime of Bigamy.

K. r. TOLSON. [1889]

(58 L. J. M. C. 97 ; 23 Q. B. D. 168 ; 60 L. T. 899 ; 37 W. E, 716 ;
16 Cox, C. C. 629 ; 54 J. P. 4— C. C. E.)

The prisoner married on the 11th of September, 1880. Her
husband deserted her on the 13th of December, 1881, She and

x2



308 CRIMINAL LAW.

her father made enquiries about him, and learned from his elder
brother and from general report that he had been lost in a vessel
bound for America, which went down with all hands on board.

On the 10th of January, 1887, the prisoner, supposing herself
to be a widow, went through the ceremony of marriage with
another man. The circumstances were well known to the
second husband, and the ceremony was in no way concealed.

In December, 1897, Tolson returned from America and the
prisoner was prosecuted for bigamy.

Held, the prisoner was not guilty of bigamy, as she had
acted innocently in the honest belief that her husband was
really dead. That in order to be guilty of a crime guilty
intent must be proved, not necessarily to do the crime actually
committed, but to do something wrong.



PERSONAL CAPACITY TO COMMIT CRIME.



A man is only excused for committing a Crime on the ground of
Insanity if he does not know what he is doing or whether it
is right or wrong. A person under a partial delusion must
be considered in the same situation as to responsibility as if
the facts in respect to which the delusion exists were real.

DANIEL M'NAGHTEN'S CASE. [1843]
(10 CI. & F. 200 ; 8 Scott (N. E.) 595 ; 1 Car. & K. 1,30.)

The prisoner was charged with the murder of Edward
Drummond, secretary to Sir Robert Peel, by shooting him on
his way to Whitehall.

The prisoner was acquitted on the ground that he was insane
when he committed the crime.

The verdict became the subject of a debate in the House of



PERSONAL CAPACITY TO COMMIT CRIME. 309

Lords, and on the opinion of the Judges being taken on the
point they held as follows : —

Notwithstanding a party accused did an act, which was
in itself criminal, under the influence of insane delusion,
with a view of redressing or revenging some supposed
grievance or injury, or of producing some public benefit, he
is nevertheless punishable if he knew at the time that he was
acting contrary to law.

That if the accused was conscious that the act was one
which he ought not to do ; and if the act was at the same
time contrary to law, he is punishable. In all cases of this
kind the jurors ought to be told that every man is presumed
to be sane, and to possess a sufficient degree of reason to be
responsible for his crimes, until the contrary be proved to
their satisfaction ; and that to establish a defence on the
ground of insanity, it must be clearly proved that at the
time of committing the act the party accused was labouring
under such a defect of reason, from disease of the mind, as
not to knoiv the nature and quality of the act he was
doing, or as not to know that what he was doing was wrong.

That a party labouring under a partial delusion must be
considered in the same situation as to responsibility , as if
the facts in respect to which the delusion exists ivere real.

That where an accused person is supposed to be insane,
a medical man, who has been present in Court and heard
the evidence, may be asked, as a matter of science, zvhether
the facts stated by the witnesses, supposing them to be true,
show a state of mind incapable of distinguishing behveen
right and wrong.



310 CRIMINAL LAW.



HOMICIDE.



The Killing of one of their number by Shipwrecked Sailors in
extreme Necessity of Hunger does not excuse Murder.

E. v. DUDLEY AND STEPHENS. [1884]

(54 L. J. M. C. 32 ; 14 Q. B. D. 273, 560 ; 52 L. T. 107 ;

33 W. E. 347 ; 15 Cox, C. C. 624 ; 49 J. P. 69— C. C. E.)

The two prisoners were respectively master and mate of the
Mignonette, which foundered on the high seas. The two
prisoners and a boy, Richard Parker, escaped in an open boat
and were exposed to the most terrible privations by lack of food.
The boy Parker suffered the most, and as he lay at the bottom
of the boat the two prisoners conceived the idea of killing and
eating him in order to save their own lives. This they did, and
it proved to be their salvation, for it was not till four days after
the deed had been committed that they were rescued by a
passing vessel. The boy was in a much weaker condition than
the prisoners and was likely to have died before them, and if the
prisoners had not killed the boy it was exceedingly improbable
that the prisoners would have survived.

Held) that the above fact did not excuse murder, and.
that the prisoners were guilty of toilful murder.



Homicide is excusable if a person takes away the Life of one
person in Defence of the Life of himself or of another.

E. v. EOSE. [1884]
(15 Cox, 540.)

The prisoner believed that his mother was about to be
murdered by his father. His father held a knife in his hand,



HOMICIDE. 311

and the prisoner and his sisters were under the impression from
the position their father was in that he was actually cutting
their mother's throat. The father was a man of great strength —
the prisoner, not desiring to take any risks of being worsted in
an encounter, seized a gun and fired it in order to frighten his
father. He at once fired a second shot, which lodged in his
father's brain and from which he died.

Lopes, J., in summing up, said : Homicide is excusable
if a person takes away the life of another in defending him-
self, if the fatal blow which takes away life is necessary for
his preservation ; and that it is also excusable if the fatal



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 23 of 29)