PRIV. CO.] THE CONSTITUTION. [PRIV. Co. to the apps.' case, and that for this reason he was not examined. The other fact, which seems to us very instructive, is this: a collision might have been produced between the two vessels in either of the two ways suggested by the parties-by the Marie suddenly porting and running across the bows of the Amalia, or by the Amalia suddenly starboarding and running into the Marie. But we think that the direction of the blow would have been different, according to the manœuvre by which the collision was occasioned. If it had been occasioned by the porting of the Marie, we think the blow would have led aft, and if that the Amalia actually carried lights of unusual | evidence would have been prejudicial, if not fatal, size and brightness; whether the vessels met on the one side or the other the coloured lights, it should seem, must have been visible-on one hypothesis the red, and the other the green. That they were not seen is not easily explained. Their position with reference to the ship's boats and the bales of cotton does not afford a satisfactory explanation. This would be material if there were reason to suppose that the Marie had not kept a good lookout, but we think that this suggestion is displaced by the evidence. For the present purpose, that of deciding on which side the vessels met, it does not seem of so much importance. Secondly, we come then to the great question as to the starboard-by the starboarding of the Amalia, that it would ing. In support of the statement that the Amalia have led forward. Now, upon this point there is no starboarded there is the evidence of Ferange, the contradiction in the evidence. Von Dippendael, the mate of the Marie, who was the officer on deck in master of the Marie, says that the blow was in an charge of the ship; of Goethalls, the look-out man; oblique direction below the mast and the funnel, in of Lemans, the seaman, of Roggmans, the helms- a little oblique direction from the mast forward man; and of Von Dippendael, the master. These Lemans says that the Amalia came from the stern witnesses, of course, can speak only to the fact that of the Marie towards her stem, and her bowsprit the helm of the Amalia was starboarded by de- came across the Marie from the stern towards the scribing the course of the Amalia, and the change fore part of the ship. Ferange, the mate, says that which took place in it before she ran into the the blow slanted forwards; that the Amalia could Marie. This change they say could have been not have come perpendicularly upon the Marie, for occasioned only by the Amalia being placed under a then she could not have hit her that sliding blow; starboard helm. Against this is to be set the and Willman, the look-out man on board of the evidence of the witnesses on board of the Amalia, | Amalia, confirms this, and says that she struck the Pollard the mate, Nagle the boatswain, and one or Marie a slanting blow, slanting from the beam two others, who concur in stating in effect that the towards the fore part of the vessel. This statement helm of the Amalia was not altered until the red is not inconsistent with on the contrary, it is light of the Marie was seen coming across their rather favoured by-the actual marks on the stem bows, when their helm was put hard a-port. With and bows of the Amalia, according to the certificate respect to Pollard, we must say that he appears to of the surveyor, and the Marie having sunk, we us to give his evidence in a very unsatisfactory have all the evidence on the point which the cirmanner, and to have fenced with the questions put cumstances admit of. If it were necessary to decide to him, or to have been incapable of understanding the question, therefore, we must hold, upon the them. The master of the ship did not come on balance of the evidence before us, that the Amalia deck just before the collision, and this person, the starboarded her helm, and thereby occasioned the third mate, was the officer in charge of the ship at accident; but it is sufficient for disposing of this the time of the collision. Now, in this competition case to say that the app. has failed to convince us of witnesses, there are two circumstances which it that the judgment below is erroneous, either as to appears to us must determine our judgment as to the rules of the law which were applied, or as to the side on which the truth lies. O'Neill, the man the effect of the evidence. We must humbly report at the wheel on board the Amalia, was not called. to Her Majesty our opinion that the appeal should He must have known with certainty whether the be dismissed with costs. helm of the Amalia had ever been starboarded or Decree affirmed. not. He was in court when the other witnesses were examined, but the apps. declined to call him. Davison, who is said to have been assisting him, was called, and it was urged that this is the same thing, but it is really a very different thing. Davison had gone to assist O'Neill, in case assistance was required, but he was not with him at the wheel. He says that he went on the poop, he did not go to the wheel, but to the starboard side of the poop; that while there he first saw a white light, and about eight minutes afterwards a red light, that the boatswain then gave an order to hard a-port; that he hurried to the wheel in order to assist in putting the helm hard a-port, but that the boatswain was there before him, and that the helm was put hard a-port. That this was done may be very true; but the question is, what had been done previously. Now, to this fact the witness cannot speak, and O'Neill could have spoken with perfect knowledge. No excuse is laid by any evidence for not examining him on the part of the apps. Their suggestion that he was a corrupt and adverse witverse witness, without any affidavit or other evidence to support the charge, can be of no avail. If he appeared to be an adverse or unfair witness, the court would have allowed the apps.' counsel to treat him as such, and would have given to his testimony such weight, and no more, as it might seem to deserve. All that we can infer from the refusal or neglect to call him is this, that if he had been examined, his App.'s proctors, Pritchard and Sons. Resp.'s proctors, Clarkson, Son and Cooper; Dyke and Stokes. KINGSDOWN, (Present-The Right Hon. Lord Ship-Collision-New sailing rules-Sailing vessels Held, the 12th, and not the 11th new sailing rule applied, The practice of the Court of Admiralty does not admit of new trials, owing to the wandering habits of seamen and other reasons. And on an appeal to the Judicial Committee the sentence must be either affirmed or altered, and it will not be altered unless the appellate court is reasonably convinced that the sentence was wrong. This was an appeal from a sentence of the Court of Admiralty in a cause of damage, promoted by the owners of the George Dean against the owner of the Constitution. The cause arose out of a collision which occurred between the George Dean and the Constitution, at about six o'clock on the evening of the 11th Feb. 1864, in the neighbourhood of the Skerries, off the coast of Anglesea. The George Dean was a brig of 182 tons register, and the Constitution was a ship of 1282 tons register. It was alleged in the court below on the part of the present apps. that the George Dean was sailing with the wind a fresh gale from the south-west, close hauled to the wind on the port tack, heading about west north-west, and making about a knot and a half an hour, and that whilst she was so sailing the Constitution with the wind free ran into her starboard waist and caused her to founder. The case set up in the court below by the owners of the Constitution, the present resps., was, that the Constitution, with the wind about S. W. by S., unsteady and freshening, was close hauled to the wind on the starboard tack, when a green light was seen about a point and a half to two points on her port bow. That the Constitution was kept close to the wind on the starboard tack. That the green light was watched for a short time, when it disappeared, and that shortly afterwards a green light, and then the brig George Dean, were seen at a short distance from the Constitution, and about a point and a half on her port bow, and approaching the Constitution, and rendering a collision inevitable. That the helm of the Constitution was put hard a-port; but that the George Dean with her starboard side came into collision with the stem of the Constitution. The learned judge of the court below was assisted by Captain Drew and Admiral Collinson, two of the elder brethren of the Trinity Corporation. The evidence on both sides was taken orally in open court. A cross-action had been instituted by the owners of the Constitution, the present resps., against the owners of the George Dean. In his address to the Trinity Masters, the following observations were made by Dr. LUSHINGTON.-Gentlemen.-You are well aware that we are under the government of a recent Act of Parliament, and new steering and sailing rules, which we must apply to the circumstances of this case. Now of these two vessels, the one was proceeding from Liverpool and the other was proceeding to Liverpool; and the first question which I wish to address to your consideration is, whether the facts of the case show that the 11th article of the new rules applies, or the 12th. These two vessels see each other at a considerable distance, looking at all the facts of the case, not less than a mile; and I think it inevitably follows that if what was right had been done there could have been no collision. What they did do seems rather to resolve itself into this, they neither of them did anything. The vessel on the port tack kept her course, and the vessel on the starboard tack, according to her own statement, made no alteration in her helm until the actual collision was taking place. With a view to drawing your attention to the question under which of the two rules the case falls, I will advert to the 7th article of the two preliminary Acts. It is alleged that the George Dean was close hauled on the port tack heading W.N.W., and on the other side it is stated that the Constitution was close hauled on the starboard tack, and heading S.E. by S. Now the 11th rule is this: "If two sailing ships are meeting end-on, or nearly end-on, so as to involve risk of collision, the helms of both should be put to port, so that each may pass on the port side of the other." Now, subject to your better opinion, I should say this is not the [PRIV. CO. rule that applies, and that these two vessels were not meeting end-on, or nearly end-on, so as to in-volve risk of a collision. According to my view, the case falls under the 12th rule: "When two sailing ships are crossing "—there is a distinction in these rules between meeting and crossing—“so as to involve risk of collision then, if they have the wind on different sides," which is the case here, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side," and then follow certain exceptions: Now, assuming these two vessels were crossing so as to involve risk of collision, then the passage I have read directs that the ship with the wind on the port side-that is the port-tack ship-shall keep out of the way of the ship with the wind on the starboard side. If it stood there it would be a very simple matter: the George Dean being on the port tack would have been bound to give way to the Constitution, which was on the starboard tack. But the rule goes on: "except in the case in which the ship with the wind on the port side is close hauled, and the other ship free, in which case the latter ship shall keep out of the way." Now, to apply the rule so qualified to the present case. Assuming the George Dean was close hauled upon the port tack. If you are of opinion that the Constitution was on the starboard tack close hauled, then, in that case, the George Dean was bound to keep out of the way; but if the Constitution, though on the starboard tack, had the wind free, she would be bound to get out of the way; and by the term "get out of the way," we mean, take her own choice, to go on one side or the other. Another rule then follows, which I will presently notice, as to the duty of the other ship. It is thus of the greatest importance in this case that you should determinewhether the George Dean was close hauled on the port tack; and, secondly, whether the Constitution was close hauled on the starboard tack. I repeat it again; if the George Dean was close hauled on the port tack and the Constitution was free, then it was the duty of the Constitution to have kept out of the way, which she did not do; and then, moreover, it was the duty of the George Dean to do nothing; because here is a very important rule: "Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course, subject to the qualifications contained in the following article." Therefore, supposing the starboard-tack vessel had the wind free, it was the duty of the port-tack vessel to keep her course, which she did. Now as to the question, purely one of fact, whether the starboard-tack vessel had the wind free, which is the only question in the case, I think it would be vain to go through the evidence. If you should be of opinion that the starboard-tack vessel was not sailing free, then the George Dean was to blame; and if you come to the conclusion she was sailing free, it is clear as daylight that the port-tack ship should have kept her course, and the starboard-tack ship given way. Now we have had great discussion as to the wind and the proximity to the Skerries; but these matters really do not appear to me to be of importance to discuss. I conceive it all depends upon what I have stated, and therefore we will go into the next room. AFTER CONSULTATION. Dr. Lushington.-We are of opinion that the George Dean is to blame for this collision, and that no blame attaches to the Constitution. The Queen's Advocate.-Perhaps it would be convenient to your Lordship to state the grounds and the reasons upon which that decision is founded. The COURT.-I never undertake to give you the argument of the Trinity Masters, for if I did so I PRIV. CO.] THE CONSTITUTION. should in all probability make a mistake; but our judgment is founded upon this, we think that both vessels were close hauled, and that under the terms of the rule the port-tack vessel is to give way and the starboard-tack vessel to keep her course: we consider the case falls under the 12th rule. The Queen's Advocate and V. Lushington, for the apps., the owners of the George Dean, contended that the evidence showed that the Constitution was in fact sailing free, and was solely to blame. Dr. Deane, Q.C. and Clarkson for the resps. Lord KINGSDOWN.-The first point to be considered in this is, whether the questions of law which arose in it were properly decided by the learned judge, and the questions of fact upon which the decision depends were accurately stated in his summing-up to the Trinity Masters. Upon this subject we entertain no doubt whatever. We agree with the learned judge that in the courses in which these vessels met, the 11th of the New Navigation Rules has no application, and that the 12th rule must determine the rights of the parties. The vessels were not meeting end-on, or nearly end-on, and the only question is, which was bound to get out of the way. Now the rule prescribes that when two sailing vessels are crossing so as to involve risk of collision, then if they have the wind on opposite sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship with the wind on the port side is close hauled and the other ship free, in which case the latter ship shall keep out of the way. In this case there is no doubt that the ships were crossing; that they had the wind on opposite sides, the Constitution on the starboard side and the George Dean on the port side. It was, therefore, the duty of the George Dean to get out of the way unless the Constitution had the wind free. This is stated by the learned judge to the Trinity Masters to be the only question in the case, and we entirely agree with him. In dealing with the effect of the evidence on this question, we are involved in the greatest difficulty. It depends partly upon the credit due to the witnesses, of which we have but imperfect means of judging, and partly on the inferences which persons of nautical skill, of which we are necessarily destitute, may draw from facts which are established. The court below saw the witnesses, the Trinity Masters, of whom one was Admiral Collinson, a seaman of the greatest distinction, personally examined the witnesses, and would be far better able to understand them, and to judge of the probability or improbability of their story, than it is possible for us to do even with the assistance which we receive from the able naval officers who are ordered to attend the committee in these cases. It was argued by Mr. Brett, that an appeal to the Judicial Committee is not like an application to a court of law for a new trial, where, if there be evidence to warrant the verdict, the court will often not disturb the finding of the jury (to whom the decision of the fact belongs), though it may not entirely approve of it; that here we are sitting, not only as judges, but as a jury, from which it was inferred that in order to affirm, we ought to be satisfied that the finding is that at which we should have arrived if the matter were res integra. We do not agree to that principle. We laid down in the case of the Julia, 14 Moo. P. C. 235, in the year 1861, the rules by which we must be guided. The practice of the Court of Admiralty does not allow of new trials; and, considering that from the pursuits and habits of life of seamen, on whose testimony the questions of fact usually depend, it would generally be impossible in such [PRIV. Co. cases to collect them again for a second trial, as well as for other reasons, we think the rule a wise one. We must either affirm or alter a sentence on appeal, and those who call upon us to alter it must impress us with a reasonable conviction that it is wrong. We certainly are unable to arrive at that conviction in the present case. The evidence is entirely contradictory upon many points; but in some, where the contradiction is the strongest, there seems to us to be reason for thinking that the error is rather on the side of the apps. than of the resps. For instance, one important question is, whether the Constitution was steering more or less in a southerly direction. Abernethy, the master of the George Dean, says that the Constitution was steering E.S.E., and had the wind free. On cross-examination it appears that his reason for saying that is, that this was the course to Liverpool from the point where she was at the time of the collision; but the course for Point Lynas, he says, would be S.E. by E., and we think it clearly proved that she was steering to Point Lynas, in order to take a pilot to Liverpool, and not direct to Liverpool. The other witnesses on board the George Dean who speak to the course of the Constitution, do not seem to us, as far as we are capable of judging, to assign very clear reasons for their statements. MacNay, the master of the Constitution, says distinctly that she was steering from S.E. to S.E. by S., the wind not being steady; that she was standing close by the wind with her yards sharp up; that her course was such (which necessarily means so much south) that he did not know whether he should weather Point Lynas. It was strongly urged that the sails which the Constitution was carrying proved that she could not be close hauled; but this was a point which excited the attention of the Trinity masters in the court below, and Admiral Collinson put questions on the subject to the witnesses on behalf of the Constitution, and as he concurred in the judgment, must have been satisfied on the point. That the yards were braced-up close was sworn positively by McNay, the master, and by Gray the mate, who, on cross-examination, said, “The yards were sharp up as close as ever we could get them. I had two pulls at the braces to get them up as close as I could." Some observations were made by the app.'s counsel on the state of the log of the Constitution, in which an erasure appeared to have been made, and an alteration introduced as to the course which the ship was steering at the time of the collision. It was pointed out at the trial to the mate by whom the log had been kept, and who gave his explanation of the circumstance. At first sight it appeared to be suspicious, but all suspicion seems to us to be removed by the fact that the entry is by no means favourable to the case of the resps., and that, if an entry were to be fabricated, it would have been quite as easy to make it "south-east by south" as south-east by east." Upon the whole, though we think the case one of much doubt, we cannot be satisfied that the decision below is erroneous. We must humbly report to Her Majesty our opinion that it ought to be affirmed, but without costs. Sentence affirmed. App.'s proctors, Pritchard and Sons. Resp.'s solicitors, Gregory and Rowcliffe. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and JAMES B. DAVIDSON, Esqrs., Barristers-at-Law. Monday, June 6, 1864. (Before the LORDS JUSTICES.) HARVEY V. BECKWITH. Insurance on vessel-Coasting trade-Construction. The rules of a Mutual Marine Insurance Association provided that vessels crossing the North Sea to any port north of the Texel, the Atlantic, or Bay of Biscay, or to any port south of Brest, should not, if the cargo consisted of iron, carry more than a certain percentage above the registered tonnage; that "ships employed in the coasting trade and ports between the Texel and Brest" should not carry more than a specified weight of cargo. "And in all cases of loss while so laden," the owner should be subject to a stated percentage of deduction: 66 Held by Knight Bruce, L. J. (agreeing with Wood, V. C., but dissentiente Turner, L. J.), that a vessel which was lost on the coast of Norfolk whilst on a voyage from Sunderland to Bordeaux, was not employed in the coasting trade," and that the words "whilst so laden" applied to both classes of ships mentioned in the above rule. The plt. was therefore entitled to the sum insured, less the specified percentage of deduction. This was an appeal from a decree of Wood, V.C. The bill was filed by the plt., a shipowner, in order to recover from a Mutual Marine Insurance Society, called The Colchester and Wivenhoe Total Loss Mutual Marine Association, the whole of a sum of money, for which his brig called The Faith had been insured with the society. On the 21st Feb. 1863, the plt. executed the deed of settlement of the society in respect of the ship, and he thereby became one of its members. Each person who executed the said deed thereby covenanted with the other and others of them to insure from the hour of the day on which the owner of each ship executed the deed until the 3rd Feb. 1864, the respective sums set opposite to the names of the ships, the respective names of which were set opposite to the seals of the persons who executed the deed, in case such ship should suffer total loss; and it was agreed that, in the event of such loss, each of the persons executing the deed should be liable to pay so much of the sum for which the ship lost was insured as should become payable by reason of the insurance, rateably and proportionately, and not jointly or in partnership, according to the rate and proportion which the sum insured upon each vessel at the time of such loss bore to the whole sum insured by the association, subject to the rules thereinafter contained. By these rules the deft. Mr. Beckwith was appointed secretary, and several other persons, who were made defts. to the suit, were appointed its committee of management, with power to grant policies of insurance and to settle and adjust all claims, losses and charges. The rules further required that there should be a meeting in each half-year for these purposes, and it was provided that all losses ordered to be raised by the committee should be drawn for by the secretary, and in case any person should neglect to pay his proportion of the losses within fourteen days after notice of the amount thereof in writing should have been directed to him by the secretary, the proportion of the person so making default should become a debt in law due from him to the owner of the ship lost, and all proceedings for the recovery thereof should be taken in the County Courts. And it was provided that all disputes as to the amount of liability [CHAN. and as to the construction of the rules should be settled by arbitration. The 25th of the rules was as follows: That ships crossing the North Sea to any port north of the Texel, to the Atlantic or the Bay of Biscay, or to any port south of Brest, if the cargo consist of iron or other metal, metallic ore, slates, bricks, stone, or sulphur, shall not carry more weight than 35 per cent. above the registered tonnage N. M., or 50 per cent. N. N. M.; that ships employed in the coasting trade between the Texel and Brest, with cargoes consisting of any of the above-named articles, shall not carry more weight than they make out upon an average with coals; and in all cases of damage whilst so leden, the claim of the owner or owners shall be subject to deduction as follows: that is to say, vessels in class A 1, 10 per cent.; in class A 2, 15 per cent.; and in class A 3, the owner shall forfeit all claim whatever. But, notwithstanding as aforesaid, no vessel where the cargo does not consist of more than 10 per cent. of shall be considered to be loaded with the excepted articles the burden of the vessel." tons N. N. M., and she was entered in the class A 2 The Faith was of the registered tonnage of 261 upon the books of the association. No policy in respect of her was ever granted to the plt. She was then on a voyage from Sunderland to BorÖn the 21st May 1863 the brig was totally lost. deaux, and her cargo consisted of 355 tons of coals, and 100 tons of pig iron. The iron was entered as part of the cargo, and freight was paid upon it; but it was alleged in the bill that it was taken as ballast only. The loss took place upon Blakeney Bar, between Wells and Cromer on the coast of Norfolk. The plt. then claimed from the association the whole of the sum (6007.) for which the vessel was insured as aforesaid; but the claim was resisted on the ground that he had violated the 25th rule by loading the vessel beyond the 50 per cent in excess of the registered tonnages mentioned in that rule. The matter was referred in the first instance to arbitration; but, arbitration failing, the bill was filed by the owner against the secretary and the members of the association to procure payment as upon a total loss of the whole sum insured, without any deduction in respect of the iron on board; or of the whole sum less 15 per cent., according to the 25th rule. The bill also prayed that the defts. might be decreed to execute to the plt. a proper policy of insurance. The evidence established that the Faith, when she was lost, was not carrying more weight than she could make out upon an average with coals. At the hearing before Wood, V. C., it was admitted on the part of the plt. that the pig iron on board must be taken to have been part of the cargo. It was contended for the plt. that the ship, though bound to a port south of Brest, was not crossing the North Sea, the Atlantic, or the Bay of Biscay, but that she was employed "in the coasting trade" at the time of the loss, and that, if such were the fact, as the cargo she carried did not exceed the weight fixed for a coasting vessel, no deduction from the sum assured ought to be made. On the part of the defts. it was argued that the plt. ought to have proceeded at law, and could not maintain a bill in this court; that the iron was part of the cargo; that the vessel was not on a coasting voyage, but was bound to Bordeaux, and it made no difference that the loss took place upon the English coast, and that the deduction of 15 per cent. on vessels in class A 2, applied only to ships employed on a voyage to ports between the Texel on the north and Brest on the south, or employed in the coasting trade. The iron carried exceeded the prescribed proportion, and nothing was payable under the insurance. The learned V.C. held, that the bill was maintainable, and that the vessel was not at the time of her loss " employed in the coasting trade." The plt. was entitled to recover the sum assured, less 15 per cent., and he decreed accordingly, ordering the defts. the committee to pay the costs of the suit. The defts., the committee of the association, appealed. A. E. Miller (with him Sir Hugh Cairns, Q. C.) supported the decree. Willcock, Q. C. and Walford appeared for the apps. Lord Justice KNIGHT BRUCE said, that these rules were so worded, with such remarkable ambiguity and obscurity, that if they had not been already discussed before one of the learned V. C.'s, and adjudicated upon by him as being intelligible, he should have been almost disposed to hold them good for nothing as being quite unintelligible—to do which would, as he supposed, have had the effect of giving to the plt. the whole amount for which the insurance upon the ship was effected, without making any deduction. But, as so eminent a judge had come to the conclusion that the rules were so far intelligible that they would be construed, he himself deferred to that view. That being so, the question for the court was, whether his Honour had arrived at that interpretation with which his learned brother and himself ought to agree. He himself was of opinion that, if any interpretation could be adopted at all, it would be impossible to suggest a better one than that which the V. C. had suggested; and indeed that interpretation appeared to him more likely to be right than any other. The question was, whether the words "whilst so laden," in the 25th rule, referred to both classes of vessels mentioned in the rule, or to one of them only; and upon the whole, in his opinion, the better and sounder interpretation was that these words applied to both classes, and not to the latter only. Either the clause was unintelligible and impracticable, in which case the plt. would be entitled to the whole of the amount insured, or it must in his (the L. J.'s) opinion be interpreted as his Honour had interpreted it. Upon all considerations the latter conclusion seemed to him the better one, and it would be the better course to let the decree stand as it then stood. Lord Justice TURNER, after considering the words of the rule, said that he was unable to agree with his learned brother's conclusion; as the L. J., however, agreed with the V. C., the appeal would be dismissed, but without costs. A. E. Miller objected to this order that the plt. being himself a member of the insuring association, would have to bear his share of the costs of the defts. if the order were made in that form. He submitted that the order ought to exonerate him from paying any contribution towards those costs. After some discussion the defts. gave an undertaking that such portion of their costs as would be paid by the plt. as a member of the club should be returned to him. Solicitors for the plt.. Lawless, Nelson and Good [CHAN. few days afterwards the plts. were served with attachment papers issuing out of the Lord Mayor's Court, attaching all moneys of A. in their hand at the suit of C. The plts. wrote to B. asking whether he wished them to adopt any and what proceedings in respect of the attachment; to which B.'s reply was that he did not consider himself concerned with the attachment. The action in the Lord Mayor's Court accordingly went on, the plts. taking no part, and finally judgment was recovered against the plts. as garnishees. To an interpleader bill filed by the plts. against C., B., and A., B. and A. demurred, on the ground (1) that the judgment-debt was not attachable, as being in custodiâ legis, and as having become beneficially transferred to B., who was not the party sued in the Lord Mayor's Court; and (2) that the plts. ought to have defended the action in the Lord Mayor's Court. Demurrer overruled. This was an appeal from a decree of Wood, V. C. The plts. were assurers, who had underwritten a policy of marine assurance, effected by the deft. John Wilson. The ship was lost, and Wilson brought six actions against the plts. for 1007. each, which were afterwards consolidated; and on the 16th Feb. 1864 Wilson recovered for the full amount of 6007, and costs. On the same day the plts. received notice that the sums recovered in the actions had been assigned by Wilson to the defts. T. Early and T. E. Smith. On the 20th Feb. the plts. were served with attachment papers issuing out of the Lord Mayor's Court, in an action in which the defts. W. Barter and E. R. Cummins were plts. and Wilson was deft., whereby all such moneys, goods and effects of Wilson, as the plts. in equity, then had or as should thereafter come into their hands or custody, were attached to answer the claim of the said W. Barter and E. R. Cummins. On the 25th Feb. the plts. were served with summonses on attachment requiring them to show cause on the 24th March following. On the 27th Feb. all proceedings in the actions (at the suit of Wilson) were stayed to enable the plts. in equity to move for a new trial. On the 2nd March the solicitors of the plts. wrote to the solicitors of Messrs. Early and Smith the letter, the material parts of which will be found in his Honour's judgment below; and on the 4th March the solicitors of Messrs. Early and Smith replied in the terms also mentioned below. The bill alleged (par. 11) as follows: "On the 24th March 1864 the defts. W. Barter and E. R. Cummins duly recovered judgment against the plts. (in equity) in the said action against them as such garnishees as aforesaid." On the 11th May 1864, the plts. having obtained a rule to show cause in Wilson's actions, the rule was argued and discharged. The plts. thereupon, on the 23rd May, filed this bill against Messrs. Barter and Cummins, Messrs. Early and Smith and John Wilson, praying that the defts. might be decreed to interplead. The defts.. Early and Smith and John Wilson, jointly and severally demurred to the bill for want of equity. The V. C. on the 28th June last overruled the demurrer. His IIonour's judgment was as follows: The VICE-CHANCELLOR.-This case comes on upon demurrer to a bill of interpleader, under these circumstances. The plts. are underwriters, and they insured the deft. John Wilson against loss, but disputed the loss when it arose. The case was decided against them, and a judgment was recovered against them by Wilson, in respect of the money for which they had underwritten; but in the meantime they |