heading at that time. The respondents have abandoned that part of their responsive allegation which imputed to the promoter Woolnough a want of nerve and self-reliance, and there is no suggestion that he does not possess the requisite knowledge and judgment to qualify him for his office. I think, therefore, I am justified in assuming the course he pursued to be such as would be suggested to a qualified pilot by the position of the "Electric," having reference to the bearings of the Lightship, the direction of the land, and the proximity of the shore. That the cutter rounded to windward of the "Electric" is alleged in the act on petition, and not denied in the responsive allegation; and this is unaccountable unless in the judgment of those on board, consisting in part of pilots, there had not been room for her safely to round to leeward. The act of the pilot in giving orders, before attempting to put the vessel about, to get the anchor ready in case she should miss stays, as stated in the affidavit of Captian Lewthwaite, shows in the strongest way his opinion at the time ; and the fact that immediately upon the ship missing he gave orders to let go the anchor, which was done at once, as implied in the evidence of the master and mate, and stated directly in the evidence of James Norris and Robert Smith, coupled with the evidence that the weather was moderate and a light wind blowing, satisfy me that the statements of the witnesses that the ship drifted in shore to any great extent after the pilot boarded her are unfounded; and this opinion is corroborated by two other circumstances. The first is, that the cutter hove-to after putting the pilot on board, and remained there until it left for Glenelg to take Captain Lewthwaite on shore; and I am unable to understand why this should have been done, excepting on account of the dangerous proximity of the land, in which the ship appeared to be. The other is, that the evidence for the respondent shows that some time before the pilot came on board-how long is only vaguely intimated, one witness says five or ten minutes, but it might have been much longer-soundings had been taken, and, as appears by the evidence of John Sullivan, the man called out 7 and 6 fathoms; while at this time the ship must have been heading rather towards the shore. There is no direct evidence as to the depth of water outside the place where the anchor was lying; but if inside that point, in 160 fathoms, the water deepens pretty regularly from 3 to 5 fathoms, this raises a strong presumption that it would not be any greater distance outside that point before it deepened from 5 to 6 fathoms. Looking then, at all these circumstances, I am of opinion

that the "Electric" when boarded by the pilot was dangerously near the shore; that it would not have been prudent to have stood on further as she was then heading; and that it would have been impossible to have reached the Lightship on that tack. I am not able to determine to what causes the position of the ship was attributable, nor is it necessary that I should do so. Suggestions are made in some of the affidavits filed on behalf of the promoters as to the condition of the master, and as to alleged admissions made by him; but these statements, as I intimated on the hearing, cannot be referred to, as they are not relevant to any allegation in the act on petition. But if they were relevant they would not really affect the question with which I am concerned, which is not by whose act or default was the ship brought into a position of danger, but was it brought into such a position by the act or default of the promoter Woolnough. And this question I answer in the negative. There remains, then, the question whether any salvage services were performed by the pilot. Upon this point I agree that it is the duty of the Court to watch narrowly a claim like the present, and to take care that a pilot shall not be allowed, merely because the performance of his ordinary duty has involved some greater amount of danger or labour than is anticipated, to abandon his character of pilot and assume that of a salvor. Unquestionably the application of this rule, and of all rules which depend upon questions of degree, and where the circumstances to which they are to be applied may shade into each other by imperceptible gradations, will often be a matter of great difficulty, and I feel it to be so in the present case; and but for the keeping the cutter and afterwards sending it to convey the master to shore for the purpose of procuring the assistance of a steam-boat, I should have held, though not without some hesitation, that the services of the promoter Woolnough did not entitle him to salvage remuneration. But that act appears to me one which can only be regarded as an act of salvage. The promoter, Woolnough, in keeping the cutter hove-to near the ship, and in afterwards ordering it to take the master on shore for the purpose of procuring the services of a steam-tug, instead of allowing it to continue its course in search of ships requiring a pilot, must have believed that the ship was in a condition of peril, and the master in availing himself of these services must, I assume, have partaken in this belief, and there can, I imagine, be no question that such was the case. The ship was at the time, according to the evidence, within about a quarter of a mile from a

rocky shore, with the glass falling and the wind blowing in shore; and it contained a valuable cargo and some hundreds of immigrants. It was the duty of the master to take some measures to rescue the vessel, and the services of the cutter were voluntarily rendered for this purpose, while the pilot Woolnough remained on board. And although, as it happened, the obviously dangerous position of the ship was observed from the land, and communicated by telegram to Port Adelaide, so that the steamer had got up steam, and was in the act of leaving before the message from the master reached it, yet that does not disentitle the pilot and the crew of the cutter to salvage compensation for the services rendered. I therefore pronounce in favour of the claim of the promoter Woolnough, and allow him the sum of £100. With regard to the claim of the crew of the whale-boat "Herald," it is resisted upon two grounds, apart from the denial common to all the claims that the ship was in any position of danger-first, that whatever the crew did they did by order of Captain Duff, who was an officer of the Government, and in no way connected with the vessel; and secondly, that they abandoned the ship before the danger, if any, was at an end. Their claim, so far as it can be supported, rests upon the circumstance that they remained by the vessel for the purpose of rendering assistance in saving the lives of the passengers if it went on shore, for the assistance which they are alleged to have rendered in taking down the royal and top-gallant yards was not, I consider, under the circumstances, in the nature of salvage. There is nothing to show that the crew could not have performed this service, or that any danger attended it, or that it contributed in any degree to the ultimate rescue of the vessel. Nor can I regard their visit to the shore for the purpose of communicating with the Commissioner of Crown Lands of itself as a salvage service. It is not, I conceive, to be distinguished in principle from the rest of their conduct. The case, as regards these promoters, appears to be that, observing the positon of the "Electric" from Glenelg they believed her to be aground, and they volunteered to accompany Captain Duff, the Harbour-Master at that place, to the ship; that on their arrival they saw the real position of the ship, and found that it was an immigrant vessel; and that they remained on board until the arrival of the steamer-assisting in the work of the ship, according to their statement; doing nothing according to the witnesses for the respondent-excepting for the time occupied in communicating with the Commissioner of Crown Lands, and that they so remained for

the purpose of rendering assistance in saving life had the vessel gone ashore. When the steamer arrived and declined to take the immigrants on board, intending to tow the ship off, they left for shore. I can have no doubt that this was service in the nature of salvage service. When persons voluntarily visit a ship in a position of danger for the purpose of rendering assistance, and remain on board in order to be ready to render such assistance if the occasion for it should arise, then, although the occasion does not arise, the ship being relieved from its danger by other assistance, I think such persons are to be considered as salvors. Nor does it appear to me to be material whether they were induced to visit the ship or to remain with it by the persuasions or directions of Captain Duff, or by those of the pilot, or at their own suggestion. There are, I conceive, only three classes into which persons rendering assistance in cases of salvage can be distributed-persons under contract, persons holding offices in the public service which may impose such a duty upon them, and volunteers. These men were under no contract, and they did not fill any public office. They were, therefore, I conceive, volunteers. And, deciding upon the character of the services which they renderedwhether they were salvage or not-it is immaterial to consider what moved their will. Then did they forfeit their claim to remuneration by leaving the vessel when they did? I think not. A steam-boat had arrived. They took a message to the master of that vessel, directing him to perform the service which they had remained to perform; and having done this, I do not think that they can be considered as having abandoned the service because they left for shore. They could not have rendered any assistance in transhipping the women and children to the steamer, and they might reasonably suppose that they would not be further needed. Looking at the risk they ran, and the dangerous service they remained to perform, I shall allow them the sum of £150, I feel it right to express my decided disapprobation of the conduct of the promoters in causing the ship to be arrested in the sum of £10,000. This is the first occasion of the sort in the colony, and I do not consequently feel myself justified in adopting the course which I shall certainly adopt in similar cases for the future, that, viz., of retaining in court any sum allowed in order that an application may be made on behalf of the respondents for an allowance of whatever expenses they may have been put to by reason of the excessive bail demanded. But in the present case, though I allow all the promoters their costs, it will be an instruc

tion to the Registrar to allow to the respondents out of the costs of the promoter Wells any expenses of possession which they may have paid beyond those of the first four weeks.

JUNE 18, 1866.

IN EQUITY.

Moss V. THOMPSON.

SPECIFIC PERFORMANCE.-Trial of Issues under Act No. 18 of 1862Construction of Agreement.

THIS was a suit to compel the specific performance of an agreement for a lease of premises in Rundle Street. The bill sets out the agreement in the following terms:-" Adelaide, January 18, 1866.-Mr. A. Thomson -I have this day agreed to rent your premises and fixtures in Rundle Street, lately occupied by R. Miller, for the term of ten years, from 22nd instant; the first four years at £3 10s. per week, and the remaining six years at £4 4s. per week, payable weekly; and I agree to execute a lease containing the usual covenants to insure, repair and keep in repair premises and fixtures, not to sublet or assign without the consent of landlord, to pay rates and taxes, and not to carry on any objectionable business. -JOEL MOSs. I accept the within terms.-ALEXANDER THOMSON, by his attorney, Jas. Thomson." In pursuance of that agreement the plaintiff took possession of the premises except the store at the back, in which Messrs. Gay & Son had some goods, but they promised to remove them and hand the key to the plaintiff. Subsequently, the defendant's attorney waited upon the plaintiff and informed him that the store was not included in the premises so agreed to be let, and the defendant refused to execute the lease of that part. The plaintiff thereupon filed his bill, alleging that, by the terms of the agreement, the store at the back was included. The defendant replied that it was not intended to be included. That being the question at issue between the parties, proceedings were taken under the Act No. 18 of 1862, by the first clause of which it is enacted that "The Supreme Court, or any Judge thereof, may in any suit on the equitable side of the Court, order that any issue joined in