Sir R. PHILLIMORE.-I am of opinion that the Kendrick Fish must ultimately pay all the costs (after taxation by the Registrar) incurred by the Diana before the order enabling the Kendrick Fish to intervene, but the question is not now before me; all I have to consider now is whether the interveners are entitled to examine witnesses. I shall grant the interveners' motion, but I think that they ought to be substituted altogether for the Diana. E. C. Clarkson.-I have no objection if they give proper security. Dr. Deane, QC.-I expressly apply for the release of the Diana's bail. E. C. Clarkson, I assent thereto, on bail being given by the Kendrick Fish. Butt, Q.C.-We will put in bail. Sir R. PHILLIMORE.-Then I shall order the Diana's bail to be discharged on the owners of the Kendrick Fish putting in bail in the salvage suit. I shall grant Mr. Clarkson's motion, as to the filing of the answer, but subject to question of tender. The interveners must file their answer as soon as the salvors have accepted or rejected the tender. Solicitors for the salvors, Lowless and Co. Solicitors for the Diana, Fielder and Sumner. Solicitors for the Kendrick Fish, Pritchard and Sons. Feb. 18, May 5, June 19, 20, and 22; July 14 and 22, 1874. THE KATHLEEN. Salvage-Derelict-Shipowner's lien for freightLoss of right to carry on cargo-Sale by order of court-Misconduct of salvors-Dispossessing original salvors-Right of recovery-Rival salvors-Pleading-Adoption of allegations of misconduct in answer-Cross-examination-Practice. Where a ship and cargo are brought into port by salvors, and a suit is instituted in the High Court of Admiralty to recover salvage reward, that court will, on the application of the salvors, acting with the assent of the owners of the cargo, order a sale of the cargo to prevent deterioration from damage done, although the shipowner, desirous of carrying on the cargo so as to earn freight, opposes the sale, and offers to give substantial bail for both ship and cargo; but such sale will be ordered subject to all questions of right to freight. Where a ship, injured by collision without fault of her master and crew, is abandoned by them, and is afterwards taken possession of and brought in safety into port by salvors, who institute a suit against ship and cargo, the shipowner, having by the abandonment put an end to his contract of carriage, loses all claim to have the cargo put into his possession to enable him to carry it on and so earn his freight, and all claim to be paid full freight out of the proceeds of the cargo, if sold by order of the court. Nor can the shipowner have any claim for pro ratâ freight unless there be a new contract express or implied to pay the same, and if the shipowner refuses to consent to a sale of the cargo by the court when applied for by the salvors and owner of cargo, unless he be paid full freight, no such contract can be implied. Where in a cause of salvage against a derelict ship rival salvors institute separate causes and file [ADM. separate petitions, alleging misconduct against one another, the Court of Admiralty will not allow the defendants, in their answer to the petition of one set of salvors, to plead that in the petition of the other set there are allegations of misconduct, and that they, for the purpose of the cause, and not otherwise, adopt these allegations; they must either make the allegations of misconduct as their own statements, or omit them. Where rival salvors file separate petitions, alleging misconduct against each other, and the defendants in their separate answers repeat the charges of misconduct made by each salvor against the other, so that the answers are contradictory, the defendants will not be allowed, on the hearing of both causes at the same time, to cross-examine one set of salvors to show that they, and not the other set, have been guilty of misconduct. If first salvors lawfully in possession of a derelict ship are wrongfully and viclently dispossessed by second salvors, who succeed in bringing the ship into safety, the second salvors will receive no benefit from the service they may render, but the whole reward will go to the benefit of the original salvors. THESE were causes of salvage instituted by various parties against the barque Kathleen, her cargo and freight. On 27th Jan. 1874, a cause of salvage was instituted on behalf of the owners and master and crew of the steam tug Palmerston; in this suit appearances were separately entered by the owners of the Kathleen and by the owners of her cargo. On 30th Jan., the judge having heard the proctors for the plaintiffs and for the owners of cargo, ordered a commission of unlivery, and that the vessel should be removed to a place of greater safety. On 2nd Feb. a cause of salvage (No. 6733) was instituted on behalf of the owners, masters, and crews of certain English luggers, the William and Mary, the Ocean Ranger, the Mary Ann, the Four Sisters, the Sarah Elizabeth, the Black Bess, and the Stornaway, against the Kathleen, her cargo and freight; and in this cause also appearances were separately entered on behalf of the respective owners of ship and cargo. On 3rd Feb. another cause (No. 6740) was entered on behalf of the owners, master, and crew of the Palmerston, and to this also separate appearances were entered; this cause was entered on account of some mistake in the præcipe in the first mentioned cause, and on 9th Feb. notice was given that that cause would be no further proceeded with. On the same day (9th Feb.) the plaintiffs (in cause No. 6733) applied to the court with the consent and at the request of the owners of cargo for a sale of the cargo, and an order for its sale was made; this order was applied for and obtained without notice to the owner of the Kathleen. 13th Feb. the proctors for the owners of the Kathleen entered a caveat against the payment of any sum out of the proceeds of the sale of the ship and cargo, or either, when brought into court, and against release of the cargo. On Feb. 18.-The case came before the court on the following notice of motion: I, William Flux, solicitor for the defendants, the owners of the Kathleen, in this cause, give notice that we shall by counsel on the 18th Feb. 1874, move the judge in court to order that the order made therein on the 9th Feb. 1874, for the sale of the cargo of the said vessel, shall be set aside, or the sale therein directed to be suspended, until the payment into court of a sum equal to the gross freight of such cargo, or why the said defendants on giving bail to the value thereof, should not be allowed to carry the same forward to its destination in order to earn the freight, or to order that if the said order for sale is allowed to stand, the said defendants shall be paid the amount of the said freight out of the proceeds of the said sale, and that the plaintiffs pay to the said defendants the costs of this motion, on the ground that the said order for sale was obtained by the plaintiffs without any notice to the said defendants. From affidavits filed it appeared that the commission of sale was, as is usual, put into the Marshal's hands for execution, and he sent down a competent person to examine the cargo, who recommended that it should be removed to London as it could there be more easily dried and would then be more likely to realise a better price. From an affidavit filed by the agent of the owners of the Kathleen, it appeared that the Kathleen had been seriously damaged by collision before the alleged salvage services, and had been abandoned by her master and crew; the cargo was cotton, and had been shipped at Charleston, U. S., for Bremen, at a freight of 22007.; and the owners claimed to be entitled to carry the cargo on from Dover, where the ship and cargo then were, to Bremen, so as to earn the freight; they objected to the cargo being brought to London for sale, on the ground that the expense of so doing would exceed the expense of taking the cargo to Bremen; they were desirous of forwarding it to Bremen as soon as it was discharged from the Kathleen and offered bail in respect of it to the salvors. From affidavits filed on behalf of the owners of cargo it appeared that some parts of the cotton were wetted and other parts saturated with salt water, and that the iron bands round the bales were rusting and damaging the cotton; that the cotton was daily deteriorating in consequence of its wetted condition, and if carried to Bremen it would lose much in value, and be scarcely marketable, whereas if taken to London it would get there in a day or two by rail and be sold at once, thus giving the purchasers time to dry it before it became so damaged that it could not be put into a merchantable condition; the owners of cargo submitted that as the ship had been brought into Dover derelict without the assistance of owners, master, or crew, of the ship, she was no longer in their possession, and they had lost their lien on the cargo. Aspland, for the owners of the Kathleen, in support of the motion. The shipowners are entitled to a stoppage of the sale in order to be enabled to carry the cargo on to Bremen. and so earn freight or to have their full freight paid here either to themselves or into court. In the Soblomsten (L. Rep. 1 Adm. and Ecc. 293; 15 L.T. Rep. N. S. 393; 2 Mar. Law Cas. O. S. 436), where freight was similarly claimed out of the proceeds of sale of the cargo, it is said, "By British law the following points seem to me settled: first, that upon the vessel becoming disabled at an intermediate port, the master is allowed a reasonable time within which to reship or transship, so as to earn his freight; second, that the whole freight is payable if by default of the owner of cargo the master is prevented from forwarding the cargo from the intermediate port of its destination: (Cargo ex Galam, Bro. & Lush. 167): third, that no freight is payable if the owner of cargo against his will is compelled to take the cargo at an intermediate port; fourth, that to justify a claim for pro ratâ freight there must be a voluntary accept [ADM. ance of the goods by their owner at an inter- Vlierboom v. Chapman, 13 M. & W. 230; In effect the contract can only be dissolved by the consent of both parties, and if the owners of cargo think fit to take the cargo here without the consent of the shipowners, they must perform their part of the contract by paying the whole freight. The fact that the ship was abandoned does not take away the shipowners' claim to freight. An abandonment is not a total loss, and does not dispossess the owners of their property or rights, the legal possession of the ship and cargo remains in the owners, the salvors being their agents only: Thornely v. Hebson, 2 B. & Ald. 513. E. C. Clarkson for the salvors.-In so far as the motion affects the salvors as to costs, I oppose it. But it is to the salvor's interest to establish the claim for freight. The shipowner did not by the desertion of his crew lose his lien on the cargo, and his contract still remains. The ship having been arrested by the salvors, the shipowner does all he can to recover possession by entering an appearance, and the arrest of the court is only for the purpose of protecting the salvor's lien, and does not deprive the owner of his right of property. This court has given salvage reward in respect of freight in many cases of derelict ships, and if the owners of cargo are right here the court has always been in error. This is not a question of lien, it is a question whether the shipowners can or cannot fulfil their contract. If they can they are entitled to do so or to recover their freight. Hence it comes to be a question of whether the court will order a sale, and out of the proceeds thereof the payment of freight or a delivery up of the cargo to the shipowners, on their giving bail, in order to enable them to complete their contract. [Sir R. PHILLIMORE.-Iam strongly of opinion that I ought to order a sale.] .Then will the court allow the cargo to be sold and subsequently released without payment of freight? [Sir R. PHILLIMORE.-That involves the question of whether any freight is due upon cargo which is so damaged that it cannot be carried on without serious injury, and which is in consequence stopped and sold here ?]-As that is caused by the acts of the owners of cargo, freight is recoverable. W. G. F. Phillimore for the owners of cargo.The ship was found derelict and brought into port and arrested by salvors. She has been unloaded and there is now no cargo on board. Are the shipowners still in possession of the ship and cargo so as to entitle them to freight? The real question here turns upon the question of lien. So long as the cargo remains in the possession of the shipowner, the owners of cargo cannot touch it without the payment of the full freight, by reason of the lien which the shipowner has in respect of that freight. Here, however, the lien is gone by the abandonment of the owner, and by the substitution of the salvor. The ship and cargo are now in the possession of the court holding for the salvor. [Sir R. PHILLIMORE.-The marshall tells me that the shipowner was a consenting party to the unlivery of the cargo. This may be important in considering whether he preserved his lien, or whether he can claim full or only pro ratâ freight] It is clear from the affidavits that the cargo ought to be sold at once, in consequence of its rapid deterioration. Here the cargo was so damaged that it could not be carried on without drying it. Before any right to freight accrues to the shipowner it is his duty to take the cargo out and dry it, and carry it on to its destination: (Notara v. Henderson, ante, vol. 1, p. 27; L. Rep. 7 Q. B. 225; 26 L. T. Rep. N. S. 442.) That case decides that a master has no right to carry on a cargo in a damaged condition for the purpose of earning freight. His duty may be to sell it, or otherwise deal with it, even if he thereby lose his chance of earning freight. This doctrine obviously arises out of the decision of Lord Stowell in The Gratitudine (3 C. Rob. 240), on the duties of a master. [Sir R. PHILLIMORE-But that does not affect the right to pro ratâ freight. There can be no doubt as to a master's power to sell.] In Notara v. Henderson (ubi sup.) it is laid down that no right to pro ratâ freight can arise without a compromise between the parties. [Sir R. PHILLIMORE.-Do not the circumstances of this case show that there was a compromise here, by the unloading at Dover and sale of the cargo at the request of the owners of cargo.] No such inference of fact can be drawn here, because the respective owners of ship and cargo are at complete issue as to what N. S. VOL. II., [ADM. should be done with the cargo. The abandonment of the ship was a loss of lien on the cargo; she was left, as her crew say, to save life, but was afterwards brought into safety by salvors. The presumption is that there was neglect of duty on the part of her master. Hence it is clear that there was an absolute surrendering on the part of the shipowners, through their agent, of all intention of completing the contract and of all rights of lien. Aspland in reply. Neither the court nor the salvors have the legal possession of the ship and cargo. The salvors are in the position of legal agents, having a lien upon it, and the court aids them to retain that lien. But the salvors' possession, subject to their lien, is the possession of the owners: (Thornely v. Hebson 2 B. & Ald. 513). They hold for the benefit of themselves and the owners, the legal possession remaining in the owners. The shipowners have never abandoned their lien. An abandonment of a ship is not a refusal to complete the contract which she is then bound to perform, but rather a confession of inability to complete at the time, with a reservation of the right of so doing, if other persons should succeed in getting the ship to a place of safety. There is no intention on the part of the shipowners to take this cargo on to Bremen in its damaged condition; they propose to dry it first, and so perform their duty as carriers. Notara v. Henderson (ubi sup.) is a strong authority that the owners of cargo cannot claim to take the cargo out of our possession without the payment of full freight. Sir R. PHILLIMORE.-I think that the duty of the court in the present stage of the case is clear. The evidence presented to me to-day establishes that this cargo is fast deteriorating through the damage it has sustained by salt water, and that it is for the advantage of all parties that a sale should take place at once. One thing alone is sufficient to induce me to make this order of sale, and that is, the owners of the cargo have expressed their wish for the sale in order that further deterioration may be prevented. And, as I understand the matter, the owners of the cargo press for this sale even if it should turn out that they are bound to pay freight for the cargo whether in full or pro rata. Hence I must order the sale to take place, and, for that purpose, that the goods be removed to London. As to the other question, I shall at present express no opinion. The matter will so rest that the shipowners can apply at a later stage of the case for the payment to them of their freight, and the question can then be raised in a more formal manner on petition, so that not only my opinion can be taken but also that of the court of appeal. That seems to me to be the right way to deal with the question of law, which is one of considerable importance and difficulty. As the proceeds of the sale of the cargo will be paid into court, the shipowners will have full security for their claim for freight if it should turn out that they are entitled to it. May 5.-The case again came before the court on motion on behalf of salvors to reject an answer filed by the defendants. Subsequently to the above proceedings the two causes (Nos. 6733 and 6740) were consolidated and another cause (No. 6769) was instituted on behalf of the owners, master, and crew of the French lugger St. Claire, and pleadings were filed. 2 B The petition in the consolidated causes (Nos. 6733 and 6740) alleged that the English luggers on 25th Jan. left Hastings to fish; that the Ocean Ranger when about eighteen miles to the southward of Hastings, sighted a vessel in distress and made towards her; she proved to be the Kathleen; when the Ocean Ranger got up to the Kathleen it was found that she had been in collision with some other vessel, and that she had a large hole in her port bow, extending below the water line, and that her sails and rigging were much damaged; the Kathleen had been abandoned by her master and crew, but when the Ocean Ranger got up to her a French fishing boat, which proved to be the St. Claire, of Boulogne, was lashed alongside the Kathleen; the Ocean Ranger made fast to the French boat, and three of her crew got on board the Kathleen. The French boat had on board a quantity of sails, provisions, and several coils of rope, including the hawsers and a quantity of running gear and blocks, evidently taken from the Kathleen. When the three men from the Ocean Ranger got on board the Kathleen they found some of the crew of the French boat engaged in getting some spare sails out of the sail rooms, and putting them on board the French boat, whilst others were cutting away the running gear of the Kathleen and getting it on board their boat. The crew of the French boat had stripped the cabin of the Kathleen of everything, even to the cabin stove, and they also took away the ship's compass, leaving her without any compass. After the lapse of about an hour, the Black Bess arrived, and after she arrived some of the Frenchmen cut away the spanker of the Kathleen, and took it away and put it into their boat, whilst others were cutting away the guys and braces, which they also put into their boat. The other Hastings lugger then arrived, and the Mary Ann was sent for a tug, but could not find one until she got to Dover; the master of the Elizabeth asked the assistance of the Frenchmen in saving the ship, but it was refused; the Frenchmen took one of the pins out of the wheel and tried to unship it, but were stopped by the crews of the English luggers; the Frenchmen, having laden their boat with tackle and articles belonging to the Kathleen, left her, and took with them the small boat of the Kathleen; they were asked to leave the small boat, but refused. When the Frenchmen left, the English crews were obliged, in consequence of the braces having been cut, to attempt to steady the sails that were standing by means of ropes, and it was with great difficulty that ropes could be got, so completely had the Frenchmen stripped the ship. The petition then went on to allege that the English luggers towed the ship through an increasing sea for some distance, with much risk, and ultimately, with the assistance of the tug Palmerston, of Dover, she was beached under the lee of the Admiralty Pier at Dover, where her damage was partially repaired and some of her tackle landed; she was then taken to a place between the piers at Dover, and some of her cargo discharged, so as to lighten her and let her get alongside the pier for final discharge, which she eventually did. It was further alleged the master and crew of the French vessel had no intention of saving the Kathleen, and that she was saved by the exertions of the plaintiffs alone, for which they claimed reward. The petition filed in the other cause (No. 6769) [ADM. | alleged that the St. Claire was a French lugger, manned by six hands, all told; that she sighted the Kathleen on the morning of the 25th Jan., about twenty miles N.N.W. of Etaples, on the coast of France; that the Kathleen then had a signal of distress flying, and that her people seemed to be passing to and from between the Kathleen and another large vessel not far from her; the crew of the St. Claire hoisted a signal to know if assistance was wanted, but got no answer; soon after the signal of distress was hauled down and the third vessel went away; the crew of the St. Claire then boarded the Kathleen and found her deserted and injured by collision. The cargo being light, there was no danger of the vessel sinking so long as the deck did not give way; but as the water was rising in the hold, it was deemed expedient to remove the sails and other perishable stores to a place of safety. The master of the St. Claire, therefore, with the assistance of one of his men, proceeded to pass such perishable stores as were portable into the lugger. They then got the mainsail of the Kathleen (which was partly set) round, and hoisted a stay sail between the stump of her foremast and her mainmast, so as to be able to steer her, and having taken on board one of the trawling warps of the St. Claire, they made it fast and got everything ready to tow the Kathleen to Boulogne-sur Mer. The weather was almost calm, and the crew of the St. Claire waited for a breeze to spring up. Towards evening the wind freshened, blowing from the N.W., and, with the assistance of the St. Claire, the Kathleen began to slowly move towards Boulogne, and as the wind continued a fair breeze, she would in all probability have arrived there without difficulty or further assistance about the time of high water but for the events following: About an hour before sunset an English fishing boat came alongside, and about three-quarters of an hour after she came up six or more English fishing boats came up, and about twenty fishermen from them* boarded the Kathleen and pushed the master of the St. Claire and the man who was assisting him in the navigation of the Kathleen away from their work, and threatened to throw them overboard, and otherwise illused them and put them in terror. The men from the English boats cast off the tow rope from the St. Claire, and forcibly took possession of the Kathleen. master of the St. Claire, seeing that it was impossible to retain possession against the numbers on board, left the Kathleen, under protest, with the man who had been assisting him, and returned on board the St. Claire, where he held a consultation with his crew. The English fishermen turned the head of the Kathleen towards the English coast, and the master and crew of the St. Claire finding that they could do nothing further proceeded at once to Boulogne. Immediately on their arrival at Boulogne-sur-Mer, the master of the St. Claire delivered the goods and stores saved from the Kathleen, which were on board the lugger, to the proper authorities, and gave information of the circumstances before stated. The Kathleen was taken to Dover by the English fishermen, and the master and two of the crew of the St. Claire followed her there. The petition further alleged that at the time the crew of the St. Claire was dispossessed there was a fair wind for Boulogne, which was easier of access than any port on the English coast, and they could easily have taken the Kathleen into Boulogne, and were in The the act of so doing; that by the wrongful act of the English fishermen the Kathleen and the cargo were subjected to greater risk and expense, and that if the service had been completed by the crew of the St. Claire they would have effected a much better salvage than that which was effected; and that the owners, masters, and crews of the English fishing boats had by their misconduct and violence forfeited any claim they otherwise might have had for salvage services, and under the circumstances before mentioned the plaintiffs were entitled to recover such salvage reward as they would have been entitled to if the Kathleen and her cargo had been salved by their unassisted services.* To the petition in causes No. 6733 and 6740, the defendants, owners of ship and cargo, filed an answer alleging that the Kathleen came into collision with another vessel, sustained the damage stated in the petition, and that on the morning of the 25th Jan. the crew of the Kathleen were taken on board the other vessel and taken to Deal; before losing sight of the Kathleen her crew saw the French lugger St. Claire approach the Kathleen, and the crew board her. The statements in the petition were not admitted to be true, save as appeared in the answer. The Kathleen was brought into Dover as in the petition alleged, but of what occurred on board of or in relation to the Kathleen from the time when those on board the Mallowdale lost sight of her until she was brought off Dover the defendants had no know. ledge. The answer then stated that a cause of salvage No. 6769 had been instituted, and was then pending in this honourable court on behalf of the owners, master and crew of the lugger St. Claire, against the Kathleen and her cargo and freight, and against the defendants intervening, and in the petition filed in the said suit it was alleged on behalf of the plaintiff therein, that upon some of them going on board the Kathleen they intended and prepared to tow her, and were in the act of towing her to Boulogne-sur-Mer, and would in all probability have taken her to Boulogne without difficulty, but that about twenty English fishermen, &c. [The answer then set out the statements in the petition in cause No. 6769, which are marked above within asterisks thus*, and then continued.] "For the purpose of this answer, (but not further or otherwise, the defendants herein being necessarily ignorant of the actual facts), the defendants herein adopt the several allegations in the said petition on behalf of the St. Claire contained, and say that the same are respectively true." The answer further alleged that the beaching of the Kathleen after her arrival at Dover was against the remonstrances of the master, and was an improper proceeding, causing unnecessary damage to the cargo. The answer concluded by praying the judge to determine whether either and which of the conflicting allegations and claims made on behalf of the plaintiff and the owners, master, and crew of the St. Claire are in whole or in part well founded, and in case he shall find anything due to the plaintiff to pronounce such a moderate sum to be due, &c. To the petition in cause No. 6769 the defendant filed an answer which commenced with similar admissions and denials as the answer in the other cause, and continued as follows: 3. A cause of salvage has been instituted, and is now [ADM. pending in the Consolidated Cause No. 6733 and 6740, in this honourable court on behalf of the owners, masters, and crews of the vessels William and Mary, Ocean Ranger, Mary Ann, Four Sisters, Sarah Elizabeth, Black Bess, and Stornaway, and on behalf of the owners, master and crew of the steam tug Palmerston against the barque Kathleen, her tackle, apparel, and furniture, and the cargo now or lately laden therein and the freight due in respect of such cargo, and against the defendants, and on the petition filed in the said suit it is alleged on behalf of the plaintiffs therein that some of them went on board the Kathleen and found the Frenchmen (meaning the crew of the St. Claire) engaged in stripping the Kathleen of its sails, running gear, cabin furniture, and compass, with which they sailed off in their boat taking with them also the small boat of the Kathleen. That the master of the Sarah Elizabeth asked one of the plaintiffs if they (the Frenchmen) would assist in saving the Kathleen, but he refused to do so; that at the time when the said Englishmen went to the assistance of the Kathleen the master and crew of the St. Claire were not attempting and did not intend to attempt to save her, and they subsequently refused to join the English crew in their attempt to save her, and that by the services of the plaintiffs therein the Kathleen and her cargo were saved from total loss, for which services the said plaintiffs claim full salvage reward. 4. For the purposes of this answer (but not further or otherwise, the defendants being necessarily ignorant of the actual facts) the defendants herein adopt the allegations in the said petition on behalf of the said English boats contained, and aver that the same are respectively true. The answer concluded by praying the judge "to determine whether either and which of the conflicting allegations and claims made on behalf of the plaintiffs, and of the owners, masters, and crews of the said English boats and steam tugs, are in whole or in part well founded," and in case he should find any, to be due to the plaintiffs for their alleged services, to pronounce such a moderate sum to be due, &c. To the answer in the consolidated causes, Nos. 6733 and 6740, no objection was taken by the plaintiffs in that cause, and the plaintiffs filed a conclusion denying the allegations set forth in the answer as being contained in the petition in cause No. 6769, and also the other allegations of the answer. To the answer in cause No. 6769 the plaintiffs in that cause objected, and gave notice that they should move the judge to reject the 3rd and 4th articles of that answer, upon the grounds that the same were impertinent and embarrassing, and contained matters of hearsay, and referred to pleadings in another cause, and to condemn the defendants in the costs of the motion. G. Bruce for the owners, master, and crew of the French lugger St. Claire, plaintiff in cause No.6769. -The pleading is bad. It should either definitely allege misconduct or omit it altogether. As the allegation of misconduct stands at present it depends rather upon the question whether the plaintiffs in the other cause pursue their claim than upon the actual fact. The defendants must allege such facts as we can answer. To leave our misconduct dependent upon allegations of a petition filed by rival salvors is embarrassing. Butt, Q.C. and Aspland, for the defendants (the owners of the Kathleen), contra.-The ship having been abandoned, the defendants' only means of knowledge of the facts are the allegations made by the plaintiffs. These allegations would be a good answer if they alleged the misconduct directly, but as the defendants are unwilling to allege misconduct, except where it has actually taken place, they could only allege what |