by Mr. Baron Parke in Mann versus Audley, 5 Dowl. duty. In the instances of the Governor Raffles, and the Pract. Reports. Under these circumstances, the court Francis and Elisa. 2, Dodson's Adm. Rep. the crew of could not grant the application.

Motion refused.

ADMIRALTY SIDE.

a vessel were held not entitled to salvage from the owners, for rescuing their own vessel from mutineers and pirates. And in the Joseph Harvey, 1, Robertson's Reports, it was laid down that mere pilotage duty, even under hazardous circumstances, must be distin guished from salvage services, and is entitled only to the

common remuneration.

IN THE MATTER OF THE SHIP," CALCUTTA." This was a claim of salvage. An application had been made to direct the sheriff, to cite Charles Howe sufficient appeared upon the affidavits to shew the exMr. Prinsep, for the plaintiffs, urged, first, that quite Cockerell and others, owners and consignees of the bark "Calcutta," to shew cause why salvages should sworn positively by persons competent to judge, that treme danger in which the vessel was placed. It was not be allowed to Captain Charles Henry West and the the vessel was placed in so precarious a position, that officers of the steam-ship Enterprise, for the rescue of she must have been speedily wrecked without aid. This the said bark from the perils of the sea. inference was very natural too, considering the circumIt appeared from the affidavits, which were put in stances of wind and tide, and it was absurd to suppose, and read in this cause on the part of the salvors, that that the vessel could have got off, and arrived at her in the month of October last, the steamer Enterprize, moorings in safety, if left entirely to her own devices. employed on Government service in the river Hooghly, Authorities were not wanting to shew, that no great observed a vessel off Saugor point, in apparent distress, exertion was essential to be proved on the part of the and making a signal that no pilot was on board. This salvors, and no vast risk necessary to be incurred, in vessel, which was the bark Calcutta, burden 440 tons, order to entitle the salvors to their claim. In the case P. H. Bentley, commander, was at that time drifting of the Maria Edward's Adm. Reports, 175, the vessel rapidly towards a dangerous shoal, with a heavy gale had been totally abandoned and first taken possession of blowing, threatening squalls, and a strong flood-de. by two fishing-smacks; yet, although these vessels were She ppeared to be dismasted. The Enterprise imme- proved to be fully competent to the task of carrying the diately left the duty on which she was engaged, and vessel safely to shore, a King's ship interfered for the pur. proceeded to the assistance of the Calcutta. After pose of giving assistance, and was held entitle jointly with consi derable exertions, and with no small difficulty and the original salvors. Secondly, it had been urged on risk, he steamer succeeded in making fast a hawser, the other side, that the steamer had done no more than and in getting the bark clear of the sands, and then her duty, whereas to entitle a party to the claim, such towed her to Kedgeree, where she anchored. The party (it was alleged) must be a mere volunteer. Now whole of the ensuing night was tempestuous, and the the cases cited, relating to the saving of a ship by her steamer remained near the rescued vessel, for her pro- own crew, were utterly inapplicable, because the crew tection, until day-light the next morning, when she had done nothing more than they had actually contracttowed her up the river to her moorings at Diamond ed to do, and could not, therefore, claim any reward: Harbour. The affidavits on behalf of the claimants and the distinctton between pilotage and salvage might stated, positively, that, from the dangerous position of be safely admitted, without affecting the present claim. the Calcutta, and the strong wind and tide, she must If the commander of the steamer had been a regular have been infallibly wrecked, but for the timely aid pilot, and had performed nothing more than a pilot's afforded by the steamer, One of the affidavits was that duty, he certainly could not have demanded any addi of Longueville Clarke, Esq. who was on board of the tional remuneration; but the case was not so. Irrawaddy steamer, Captain Warden, commander, and true, that to a certain extent, it is the general duty of witnessed the danger of the Calcutta, and the exertion of commander of a steamer to interfered, because general the Enterprize. The vessel and cargo were valued at instructions to that effect have been promulgated under more than a lac of rupees.

It was

the sanction of Government. But to a certain extent

The counter-affidavits (among others) of Captain 100, it is the duty of every ship to assist another in Bentley, the commander, and of Mr. Middleton, the distress, as it is the duty of every good Christian to lend first officer, set forth, that no signal of distress was a helping hand to his neighbour. The case of her made by the Calcutta, that she was in no danger what-Majesty's vessels being allowed salvage for saving ever, and that the only signal was the union-jack, in point. It was the bounden dnty of a King's ship to other ships from damage or destruction, was precisely which had been flying all day for a pilot. They added, aid and protect a merchant vessel under British colours that, observing the Enterprize and Irrawaddy in sight, in the instance, for example, of such vessel being they had supposed that those steamers were disengaged, attacked by a hostile ship of war,-yet the King's ship and they wished, therefore, to obtain their services. These gentlemen positively swore, that to the best of might institute a claim for salvage. In the matter of their judgment and belief, the steamer rendered no the Marianne, Haggard's Adm. Reports, 158, where material service, and that the Calcutta could have the vessel was saved by the King's sloop Arrow, Lord easily reached Diamond Harbour in safety, without aid, Stowell said, that the sloop was entitled to salvage, The Calcutta was a strong new vessel, totally uninjured; vessels to aid the merchant ships of this country. although there was an obligation upon her Majesty's she was not dismasted, but had struck her upper spars, and double-reefed her top-sails.

Sir Edward Ryan said, that the court wished to look further into the affidavits, and that they should postpone judgment until a future day. Cur, adv. vult.

The Advocate General and Mr. Leith, addressed the court on behalf of the defence. The learned counsel contended, that there was no ground for this claim, upon the other party's own showing. No danger was incurred by the steamer, and nothing was performed except what was within the scope of her usual duty and occupation. The steamer, therefore, was merely This case occupied the court until between 3 and 4 entitled to the ordinary rate of remuneration for her o'clock; and the demurrer in Macnaghten v. Tandy services, (which had already been received) and to no was postponed on that account until the next equity extraordinary reward in the shape of salvage. Cases day, (Monday.)

bad been decided in which it was held, that the claim Two cases stand for trial to-morrow, (this-day) on

This was a bill for a foreclosure, stating the loan to a The Advocate General moved the court, that leave that the same was secured by bond with warrant of deceased party, (represented by the defendants,) and of absence for three years might be granted to Mr. Jo-attorney, and a mortgage of certain premises. seph Spencer Judge, an attorney of this court, for the benefit of his health,

part allowed. The report had been referred back, and the present master (the vacancy having occurred in the interim) had made his report upon only the matters excepted to. At the present time, therefore, there were two separate reports, formning one entire and complete report in the cause, and the object of the present application was to consolidate and confirm the same. The learned counsel argued, that it would involve both the master and the parties in great hardship and difficulty, if the whole of the matters brought before a former master were obliged to be gone into a second time before the new master, and the whole report drawn up afresh, while, perhaps, the portion requiring reconsider ation and amendment, might bear a very minute proportion to the entire report. Moreover, there was ano ther obvious objection, inasmuch as the master would make the whole report his own, by embodying the former report in his fresh report upon the matters excepted to, whereas the special direction and authority given by the court, would extend only to the latter,

Mr. Clarke suggested, that at the commencement of the rains, gram was likely to be damaged by being long kept, and in support of this position, he referred to a report of the agricultural society, who (the learned counsel observed) must be deemed a better authority upon such a point, than even their lordships! Besides, the price of gram was likely to fall in a short time, and this property, therefore, would be sold at a depreciated price.

Sir E. Ryan said, that even if this were the case, it did not bear out the statement that gram was a perishable commodity. The actual sale of the property would be a measure of some severity, and the court saw no reason for hastening it. No judgment had yet passed against the party :-he was only in contempt for nonThe ground of the affidavit be must

appearance.
amended.

Refused.

OTHERS.

Sir E. Ryan said, that this was an application to add NIBBUNMONEY DABEY versus SHAMLOLL TAGORE AND together two separate reports by two different masters, and transmute them into one. Such an application was without precedent in this court, and could not be granted.

Refused.

MANUK AND OTHERS versus SARKIES OWEN AND OTHERS. The Advocate General (with whom was Mr. Clarke) moved upon affidavits, that the present trustees of the marriage-settlement might be removed, on the ground of insolvency, and others substituted in their stead.

Mr. Leith rose and said, that he had to shew cause in this case.

The Advocate General observed, that he had not expected to be called upon, as the motion was his own, and it was in his discretion to press it or not.

Sir E. Ryan said, that the course was certainly not strictly regular. It was for the party who had obtained the rule, to apply to make it absolute if they chose. The other side need not interfere, because, unless a motion is made to make the rule absolute, of course it falls to the ground.

Mr. Prinsep, for the trustees, did not object, on the part of his clients, to their discharge, and to the sub- The Advocate General, however, said, that he was stitution of new trustees. His clients, indeed, were anxi-perfectly ready, and he proceeded accordingly to supous to be relieved from their trusts, and secured from all port his rule. The nature of the application was this. future liability. Yet he conceived it necessary to submit A creditor Juggomohun Mookerjee, had applied, at a to the court, whether the present proceeding was strictly regular, and whether trustees appointed under a solemn deed, could be removed by a mere petition to the court. He submitted that the parties might change the trustees of their own act, and discharge the present trustees from their liability, a regular deed of release.

Mr. Clarke applied for a sale by the sheriff, of the goods of the defendant, seized under a writ of sequestration for want of an appearance. The affidavits stated, that the goods seized were perishable commodities, and that damage and loss would inevitably ensue, if the sale were delayed.

Sir E. Ryan. Why, it appears that the property in question consists of GRAM, and I am not aware that gram can be called a perishable commodity. I have heard of cases, indeed, where a sale of cattle has been permitted, on the ground of the expense incurred in the keep:

late stage, for leave to come in and prove his claim before the master, and the court had allowed this upon a special order, directing that all costs incurred by the proceedings before the master, should be paid by the creditor. The question was, whether the costs of certain objections to the items of a bill before the taxing-officer, were to be considered as included in the terms of the did not arise from the delay of his client, that they order. The learned counsel contended, that these costs would have been equally incurred if he had come in six months earlier, and that they did not fall, therefore, within the purview of their lordships' order.

Mr. Leith shewed cause, contending that the costs of the objections were clearly, to all intents and puposes, fell within the express words of the order. costs occasioned by the application of the creditor, and

Sir Edward Ryan said, that the court had given leave to this creditor, with considerable reluctance, and that the order then made was, that all the costs incurred, should be borne by the applicant, as they considered that he had placed himself in the most unfavourable position in this respect. It was the intention of the court, and the order so expressed it, that the party who had already suffered from the creditor's wilful delay, should not be put to any expense at all in the matter. The order extended, not merely to costs caused incidentally by the delay which had occurred, but to all costs whatever which the application should occasion. Rule discharged.

BONNERJEE versus BONNERJEE.

Upon the application of the Advocate General, the court said, that judgment would be given in this case (upon exceptions to the master's report) in the course

The motions occupied the court to-day until so late ance, and the plaintiff now proceeded to assess damages. an hour, that the two demurrers standing for hearing Both of the parties carried on business in Calcutta, and on the plea and equity side, were postponed. Their there had been several extensive mutual dealings. lordships intimated, that in the event of the causes, Upon the settlement of accounts between them, some which stand for to-morrow and the next day, being time since, a large sum was found due, and acknowterminated at an early hour, the demurrers would be ledged to be due to the plaintiff; to recover which with taken upon one of those days.-Hurkaru, June 26. interest from that date, the present action was brought.

Mr. Clarke suggested, that at the commencement of the rains, gram was likely to be damaged by being long kept, and in support of this position, he referred to a report of the agricultural society, who (the learned counsel observed) must be deemed a better authority upon such a point, than even their lordships! Besides, the price of gram was likely to fall in a short time, and this property, therefore, would be sold at a depreciated price.

part allowed. The report had been referred back, and the present master (the vacancy having occurred in the interim) had made his report upon only the matters excepted to. At the present time, therefore, there were two separate reports, formning one entire and complete report in the cause, and the object of the present application was to consolidate and confirm the same. The learned counsel argued, that it would involve both the master and the parties in great hardship and difficulty, if the whole of the matters brought before a former Sir E. Ryan said, that even if this were the case, it master were obliged to be gone into a second time did not bear out the statement that gram was a perishbefore the new master, and the whole report drawn up able commodity. The actual sale of the property would afresh, while, perhaps, the portion requiring reconsider be a measure of some severity, and the court saw no ation and amendment, might bear a very minute pro-reason for hastening it. No judgment had yet passed portion to the entire report. Moreover, there was ano against the party he was only in contempt for nonther obvious objection, inasmuch as the master would The ground of the affidavit be must make the whole report his own, by embodying the former report in his fresh report upon the matters excepted to, whereas the special direction and authority given by the court, would extend only to the latter,

appearance.

amended.

Refused.

OTHERS.

Sir E. Ryan said, that this was an application to add NIBBUNMONEY DABEY versus SHAMLOLL TAGORE AND together two separate reports by two different masters, and transmute them into one. Such an application was without precedent in this court, and could not be granted. Refused.

MANUK AND OTHERS versus SARKIES OWEN AND OTHERS. The Advocate General (with whom was Mr. Clarke) moved upon affidavits, that the present trustees of the marriage-settlement might be removed, on the ground of insolvency, and others substituted in their stead.

Mr. Prinsep, for the trustees, did not object, on the part of his clients, to their discharge, and to the substitution of new trustees. His clients, indeed, were anxious to be relieved from their trusts, and secured from all future liability. Yet he conceived it necessary to submit to the court, whether the present proceeding was strictly regular, and whether trustees appointed under a solemn deed, could be removed by a mere petition to the court. He submitted that the parties might change the trustees of their own act, and discharge the present trustees from their liability, a regular deed of release.

The Advocate General, in reply, observed, that he could not understand the course adopted by his learned friend, and he was not aware that there was any middle course between opposing a motion and not opposing it. The parties could not effect the change required without the aid of the court, first because one was under age, and secondly because another had refused to give his

consent,

The Court said, that it appeared that no opposition to the change was wished to be made on the part of the present trustees, and they unquestionably possessed the right of coming in and opposing the application in its present form, until they were themselves duly discharged from all liability. There must be a reference to the

master.

versus

Mr. Clarke applied for a sale by the sheriff, of the goods of the defendant, seized under a writ of sequestra. tion for want of an appearance. The affidavits stated, that the goods seized were perishable commodities, and that damage and loss would inevitably ensue, if the sale were delayed.

Mr. Leith rose and said, that he had to shew cause in this case.

The Advocate General observed, that he had not expected to be called upon, as the motion was his own, and it was in his discretion to press it or not.

Sir E. Ryan said, that the course was certainly not strictly regular. It was for the party who had obtained the rule, to apply to make it absolute if they chose. The other side need not interfere, because, unless a motion is made to make the rule absolute, of course it falls to the ground.

The Advocate General, however, said, that he was perfectly ready, and he proceeded accordingly to support his rule. The nature of the application was this. A creditor Juggomohun Mookerjee, had applied, at a late stage, for leave to come in and prove his claim before the master, and the court had allowed this upon a special order, directing that all costs incurred by the proceedings before the master, should be paid by the creditor. The question was, whether the costs of certain objections to the items of a bill before the taxing-officer, were to be considered as included in the terms of the did not arise from the delay of his client, that they order. The learned counsel contended, that these costs would have been equally incurred if he had come in six months earlier, and that they did not fall, therefore, within the purview of their lordships' order.

Mr. Leith shewed cause, contending that the costs of the objections were clearly, to all intents and puposes, costs occasioned by the application of the creditor, and fell within the express words of the order.

Sir Edward Ryan said, that the court had given leave to this creditor, with considerable reluctance, and that the order then made was, that all the costs incurred, should be borne by the applicant, as they considered that he had placed himself in the most unfavourable position in this respect. It was the intention of the court, and the order so expressed it, that the party who had already suffered from the creditor's wilful delay, should not be put to any expense at all in the matter, The order extended, not merely to costs caused incidentally by the delay which had occurred, but to all costs whatever which the application should occasion. Rule discharged.

BONNERJEE versus BONNERJEE.
Upon the application of the Advocate General, the

Sir E. Ryan. Why, it appears that the property in question consists of GRAM, and I am not aware that gram can be called a perishable commodity. I have heard of cases, indeed, where a sale of cattle has been permit-court said, that judgment would be given in this case ted, on the ground of the expense incurred in the keep: (upon exceptions to the master's report) in the course