V.C. S.] Equity Courts. CLARKE v. HILTON. V. C. STUART'S COURT. Reported by EDWARD WINSLOW, Esq., Barrister-at-Law. June 5 and 6. CLARKE v. HILTON. [V.C. S. the youngest child of my said daughter shall have attained twenty-one years of age, on which of those events that may last happen, the like sum of 90002. for the benefit of the children of my said daughter Jane, upon trust and subject to provisions in favour of my said daughter Jane's children and grandchildren, corresponding with the trusts and provisions herein before contained in favour of the children and grandchildren of my said daughter Sarah Hilton. And upon further trust to invest the sum of 4001., and to pay the interest thereof to Elizabeth Pickford, the wife of George Pickford (now in America), for her own sole and separate use, and on the death of the said Elizabeth Pickford, upon trust to pay and divide the said sum of 400%. unto and equally Will-Construction-Gift on trust-Beneficial interest amongst such of her children as may be then living, and if of trustee. Testator bequeathed all his personal estate to his grandson B., his executors, administrators, and assigns, subject to the payment of debts, funeral and testamentary expenses, upon the trusts after mentioned, but which trusts, when performed, did not nearly exhaust the estate: Held that, subject to the trusts declared, B. was entitled, beneficially, to the whole of the estate. This was an administration suit. John Cooke, by his will dated 28th Jan. 1864, made the following disposition of his property: This is the last will and testament of me, John Cooke, of Macclesfield, in the county of Chester, gentleman. I bequeath all my personal estate to which I shall be entitled at my decease to my grandson, John Cooks Hilton, his executors, administrators, and assigns, subject to the payment of my debts, funeral and testamentary expenses and legacies, and to the trusts hereinafter contained. Upon trust in the first place to convert and get in my residuary personal estate and invest the same as hereinafter directed, with power, at the discretion of my said trustee, or the trustee or trustees for the time being of this my will, to postpone for such period as to him or them shall seem expedient, the conversion or getting in of any of my said personal estate, which shall at my decease consist of shares in public companies, or of stocks, funds, or securities of any description whatever. And upon trust to stand possessed of the said trust-moneys upon trust to pay to each of my daughters, namely, Sarah, the wife of Edward Hilton, and Jane the wife of David Clarke, an annuity of 4007. a-year during their respective lives, to be paid to each of them by two half-yearly payments, on the 1st day of January and the 1st day of July in every year. The first half-yearly payment to become due and be payable on such of the said halfyearly days as shall first happen after the expiration of twelve months after my decease. And on the death of my said daughter Sarah Hilton, to pay to her children, including the said John Cooke Hilton, the like sum of 4007 a-year until the youngest child of my said daughter, Sarah Hilton, shall attain the age of twenty-one years. And I declare that if any son or daughter of my said daughter Sarah shall die in her lifetime, and any child or children of such son or daughter shall be living at the decease of my said daughter, then the said annual sum of 4001., or the share thereof to which the son or daughter so dying would if living at the decease of my said daughter have been entitled to under the trusts aforesaid be held by my said trustee or the trustee or trustees for the time being of this my will, upon such trusts and subject to such provisions in favour of the child or children of such son or daughter respectively as the same would have been held if such son or daughter respectively had lived until the youngest of such children had attained twenty-one years of age; and upon trust to set apart immediately after the death of my said daughter Sarah, or when and so soon as the youngest child of my said daughter shall have attained twenty-one years of age, on which of those events that may last happen, the sum of 90001. for the benefit of such of the children of my said daughter Sarah as shall be living at her death and attain the age of twenty-one years, or leave issue, in equal shares, as between or among brother and sisters, but so that the child or children collectively of any deceased child of my said daughter Sarah shall take only the share which such deceased child would have taken if living; and I direct my said trustee, or the trustee or trustees, to pay the same to and to settle the respective shares of the children or grandchildren of my said daughter Sarah by deed in such manner as my said trustee, or the trustee or trustees for the time being of my will, shall in his or their discretion think proper; and upon further trust, in mediately after the death of my said daughter Jane Clarke, to pay to her children the like sum of 4007. a-year until the youngest child of my said daughter Jane shall attain the age of twenty-one years; and I declare that the said sum of 400l. a-year shall be held by my said trustee, and the trustee or trustees of this my will, upon trust, and subject to the provisions in favour of my said daughter Jane's children and grandchildren, corresponding with the trusts and provisions herein before contained in favour of the children and grandchildren of my said daughter Sarah Hilton, and upon trust to set apart immediately after the death of my said daughter Jane, or when and so soon as there should be no such children living at her death, upon trust for my said grandson John Cooke Hilton, his executors, administrators, and assigns; and upon further trust to pay to my housekeeper, Mary Ann Deane, an annuity of 251. a-year during her life, which shall commence at the end of twelve calendar months after my decease, to be paid halfyearly; but if she shall marry the same shall thereupon cease. And as to each of the said annuitants, I direct my said trustee, or the trustee or trustees for the time being of this my will, to invest a sum sufficient at the time of appropriation to answer, by the annual income thereof, the payment of the said same annuity, and in the meantime to pay the same out of the moneys to arise from my personal estate, but the same annuity shall, after such appropriation as aforesaid, be exclusively payable out of the sum so appropriated in exoneration of my said personal estate; and such sums shall, subject to the payment of the said annuity, form part of the ultimate surplus of my personal estate. I direct all investments of trust-moneys under this my will to be made in or upon the public funds, or on Government or freehold, copyhold, or leasehold, or chattel real securities in the United Kingdom, or on the debentures, mortgages, or securities of any corpora tion, company, or body municipal, commercial, or otherwise in the United Kingdom, or India, or any colony or dependency of Great Britain; and may from time to time vary or transpose such stocks, funds, or securities into or for others of the same or a like nature. I give to each of my granddaughters a legacy of 504, to be paid in twelve months after my decease, to such of them as may then have attained the age of twentyone years, and to be paid to the others on their respectively attaining that age. I request the said John Cooke Hilton to occupy the house I now reside in, and also to continue to rent my pew in St. George's church, in Sutton, for the use of grandchildren, but this request shall not abridge the absolute ownership of my said grandson, and shall not create any trust or equity in favour of any person. I devise all estates vested in me as trustee or mortgagee to the said John Cooke Hilton, his heirs, executors, administrators, and assigns, upon the trusts affecting the same respectively. I appoint the said John Cooke Hilton and Edwin Hilton, of the city of Manchester, silk merchant, David Clarke, of Macclesfield aforesaid, gentleman, and Sarah Alice Clarke, daughter of the said David Clarke, to be my executors and executrix of this my will. And I direct that in case any dispute or question shall arise between the persons interested under this my will and the trustee or trustees and executors thereof with regard to the trusts or provisions of this my will, the same shall be referred and finally settled by John May of Macclesfield aforesaid, gentleman. The testator died in March 1864. Jane Clarke died in the testator's lifetime, leaving the plts. (infants) her only issue, who, together with Sarah Hilton, were the testator's coheirs and next of kin. The trusts created by the will did not nearly exhaust the testator's personal estate, and the question was, whether the surplus, of which trusts were not expressly declared, went to J. C. Hilton beneficially under the terms of above bequest, or to the testator's next of kin as undisposed-of residue, and whether J. C. Hilton took the testator's house for life or in fee. The bill prayed that the personal estate might be administered by the court, and the rights of all parties interested therein declared; that the several legacies bequeathed might be paid and applied in due course of administration, and that the legacies given to the plts., and the shares (if any) to which they might be entitled of the residuary personal estate, might be secured for their benefit, and that the necessary investments in the name of the AccountantGeneral might be made for that purpose; that so far as might be necessary the testator's real estate might also be administered by the court; and that, if necessary, a receiver might be appointed. Bacon, Q. C., and Lewin for the plts., and Malins, Q. C. and G. O. Morgan, for parties in the same interest with the plts., contended that the testator intended to treat J. C. Hilton merely as a trustee. The whole will imposed duties upon him in that character, and all of the sums under his control were intituled "trust moneys." Consequently the undisposed-of residue formed the subject of a resulting trust in favour of the next of kin. It was unreasonable to suppose that, if the testator meant Hilton to take the whole property subject to certain trusts, he should specifically have given him a contingent interest in part of it. They cited Dawson v. Clarke, 15 Ves. 409; on appeal, 18 Ves. 247; Saltmarsh v. Barrett, 29 Beav. 474; Mapp v. Elcock, 2 Phil. 793, and 3 H. of L. Cas. 492; Barrs v. Fewkes, 2 H. & M. 60. Greene, Q. C. and Little argued that the testator had given all his personal estate, subject to certain trusts, to J. C. Hilton absolutely. The gift was to him, his executors, administrators, and assigns; but if it had been intended that he should take it simply in his executorial capacity, the word "assigns" would not have been used. The expression "hereinafter contained" had only a limited force, and the words "subject to" must be read as "charged with ;" and upon this construction Hilton, beyond doubt, would take a beneficial interest in the residue. The provision as to the house, and direction about the pew, must have considerable weight with the court in the disposal of the personalty, for it was evidently the testator's intention that his grandson should keep up the family position, and that he should have ample means at his command for so doing. The devise otherwise would have been a mere mockery. They referred to Dawson v. Clarke (suprà); Williams v. Roberts, 4 Jur. N. S. 18. | [V.C. S. Mapp v. Elcock (supra), where property was given upon certain trusts, but no part of it was left uncovered by those trusts, it was held that the devisee took nothing but a dry legal estate. But even if in the present case the gift had been of all of the testator's estate to A. B. "upon trust," the context of the will might supply words from which it might be inferred that the property was only given "subject" to certain trusts. For example, in Dawson v. Clarke, a testator gave all his estate and effects to two persons, their heirs, executors, &c., "upon trust in the first place to pay, and charged and chargeable with all his debts, funeral expenses," and the legacies after given; and it was there held that the trust only extended to the amount with which the property was charged. Sir W. Grant, in Dawson v. Clarke, refers to Coningham v. Mellish, Pre. Ch. 31, as a case showing the extent to which the court has gone in holding that a person named as trustee can take beneficially. Lord Hardwicke also alludes to the same case in Hill v. The Bishop of London, 1 Atk. 618. In illustration of the refinements which have been drawn on this subject I will mention the case of Hobart v. Suffolk, 2 Vern. 644. There lands were devised to three persons and their heirs, to the use of them and their heirs, upon certain trusts after mentioned, and the testator gave directions that a life-estate should be conveyed to A., and an estate tail to B., but made no provision as to the remainders in fee, and it was held that there was a resulting trust; but Lord Cowper, before whom the case was argued, based his decision on the fact of there being three trustees, notwithstanding two of them were related to the testator. The judgment was delivered in these words: "Where a devise or grant is in trust for payment of debts, there the whole estate is affected with the trust, but here the remainder is not affected with any trust declared; but, con Renshaw, for an executor of one of the next of kin. sidering that the devise is to three persons, and Bacon, Q. C. in reply. The VICE-CHANCELLOR. This case is one of a class which has exercised to the utmost degree the learning and ingenuity of some of the greatest judges. When it is considered that in a similar case, Dawson v. Clarke (supra), two such men as Lord Eldon and Sir William Grant entirely differed in opinion, the difficulty of the question is apparent. In King v. Denison, 1 Ves. & B. 260, a case argued long and ably on the one side by Sir Samuel Romilly and on the other by Mr. Leech, Lord Eldon entered at length into the distinction between gifts and devises by will upon trust, and gifts and devises by will subject to trusts, that is, by way of a charge. And, at p. 276, he uses this language: "There is great difference between a devise upon trust and a devise subject to a charge; but the object is effected in much the same way: compelling the party to make good the charge, or trust, by very similar operations as applied in this court.' Nothing can show more clearly than this definition the subtle refinements on which cases of this class turn. In the present instance, however, the testator in the plainest language has given all the personal estate to John Cooke Hilton, "subject" to debts and legacies, and to the trusts thereinafter mentioned, and when those trusts are afterwards specified, the words "upon trust occur as a matter of course. As the property under the will has been given to J. C. Hilton subject to the trusts thereinafter mentioned, it cannot, one would suppose, be subject to any other trusts than those specified; and as, after the performance of those trusts, no further trust is to be found affecting the surplus, that part necessarily remains subject to no trust at all, consequently the claim of the next of kin as under a resulting trust cannot be sustained. In that Lord Gorge (one of the trustees) is no relation to the testator, it could not be intended a provision or bounty, as it might have been if the devise had been to Colchester (a trustee and relation) alone." There is a clear principle running through most of the cases referred to, which amounts to this, that if an estate be given to a person subject to certain trusts, there can be no right in any one but that person to the residue of the property after the trusts are exhausted, but if that person takes the estate simply as trustee, with nothing to show that he was intended to enjoy any beneficial interest, then the residue forms the subject of a resulting trust. The most serious ground of difficulty in the present case arises from the use of the words " upon trust" to stand possessed of the said "trust-moneys to pay certain persons mentioned. We must not, however, take one part of the will by itself, but the whole context together, and endeavour, by reconciling one expression with another, to arrive at the true construction. There is no real inaccuracy in speaking of the whole fund as moneys, when there are certain trusts to be performed out of them, and there is nothing to show that it was the testator's intention to attach a trust to the ultimate surplus. I am therefore of opinion that the property under the will goes absolutely to John Cooke Hilton, subject to the trusts declared by the testator. There must be a declaration to that effect, and that the testator died intestate as to his real estate (except as to the house devised to J. C. Hilton, and to which he is entitled in fee-simple). The costs must be provided for out of the personal estate. Solicitors for the plts., Elsdale and Byrne, for Brocklehurst and White, Macclesfield. Solicitors for defts., Reed and Phelps. V.C. S.] IMPERIAL GAS LIGHT AND COKE Co. v. WEST LONDON JUNCTION GAS Co. The purport of the 54th section of the Metropolitan Gas Act is to protect the rights of such companies or per sons who, previously to the passing of the Act, manufactured and supplied gas to others than the "public." Semble, railway companies and hotels in connection with them, do not constitute the "public" within the meaning of the section. The question in this case turned upon the construction of the Metropolitan Gas Act of 1860. The plts. were one of certain gas companies enumerated in the Act who were privileged to supply the public within the metropolitan districts with gas. The principal object of the Act according to the language used in the preamble was, to prevent any one of the companies mentioned therein (the defendants not being one of them) from encroaching on the districts of the others, and to avoid the too frequent raising of the public streets for the purpose of laying down pipes. By the 6th section it was enacted that the limits of each of the said companies should be the respective districts supplied with gas by such companies, as the same had been defined upon certain maps, approved of by the authorities therein designated. And that "no other company or person than the company to whom such limits are for the time being assigned or shall hereinafter be assigned, shall supply gas for sale within the said limits, unless authorised by Parliament to do so." By the 54th section it was enacted that "nothing in this Act contained shall avoid, prejudice, or impair any of the powers now exercised or possessed in respect of the manufacture or supply of gas within the metropolis by any railway company, or by any other person or persons making or supplying gas for his or their own use, and not making or supplying gas to the public as a trade or business." It appeared that in 1856 the Great Western Railway Company, who previously to that time had been supplied by the plts. with gas, contracted with a person of the name of Vaughan for the erection and management by him of private gasworks, for the purpose of supplying them with gas at their terminus at Paddington. This supply was also to include the Great Western Hotel, which belonged to a company composed mainly of the directors and shareholders of the railway company. In consequence of the inability of Vaughan to procure the necessary funds, further arrangements were made between the parties and a Mr. Vavasseur for carrying out the undertaking; and subsequently, in Feb. 1860, the railway company agreed to advance a sum sufficient to enable Vaughan and Vavasseur to complete the contract. Previously, however, to this arrangement Vavasseur and certain other persons had agreed to form a joint-stock company for the purpose of purchasing the interest of Vaughan and Vavassseur in the contract, and thus the defts., the West London Junction Gas Company, were originated. The company was duly registered in Sept. 1859, their works having been erected on certain land belonging to the railway company. In 1863 the Metropolitan Railway was opened, and the defts. then furnished some of the carriages of that railway, in which, however, the Great Western was partly interested, with gas. They [V.C. S. also supplied gas to the Bishop's-road station upon the same line, but this station in fact was the property of the Great Western Company, subject only to certain rights and privileges of user by the two railway companies in common. The Paddington terminus, the Great Western Hotel, and the Bishop's-road Station, fell within the district allotted to plts. by the Metropolitan Gas Act; and they complained that their rights under the 6th section of that Act had been infringed upon, and prayed for an injunction to restrain the defts. from supplying gas, as above; for accounts, a declaration of right, and for a discovery. The defts., on the other hand, maintained that the gas so furnished by them did not amount to a supply to the public, and they claimed to fall within the exceptions contained in the 54th section of the Act. The Great Western Railway Company were also made defts. to the suit. Bacon, Q. C. and Bagshawe for the plts. Malins, Q. C. and W. P. Dickins for the defts., the gas company; and Osborne, Q. C. and Stevens, for the Great Western Railway Company, were not called upon. The VICE-CHANCELLOR.-The plts.' case totally fails. The question turns upon the construction of undisputed facts in reference to the nature of the the Metropolitan Gas Act of 1860, as applied to the defts. (the gas company's) business, and the way in which they have carried it on. Act is, to prevent any one of the gas companies The purpose of the mentioned in the preamble from encroaching upon the districts of the others, and to avoid the too frequent opening of the public streets for the purpose of laying down pipes. There is nothing in the preamble of the Act as to the intention of the Legislature to interfere with the right of the public to be supplied with gas by anybody who can of the 6th section, however, goes beyond the predo it in the best and cheapest way. The language amble, in enacting that no person, excepting the favoured companies whose names are recited in the Act, should manufacture and sell gas within the districts mentioned. But the 54th section, in extions are, and its purport is not to interfere with the ceedingly plain language, describes what the excep right of any company or person manufacturing gas for their or his own use, at the time the Act was passed, and not supplying the public as a trade or business. Were the defts. so engaged at the time of the passing of the Act, and are the Great Western Railway Company, the Metropolitan Railway (which is a branch of it), and the Great Western Hotel (of which the Great Western Railway Company are the landlords), the public? certainly are not. The case appears to me to come In my opinion they clearly within the 54th section, and the bill must be dismissed with costs. Solicitors for the plts., Wilde, Rees, Humphry, and Wilde. Solicitor for the defts., the Gas Company, James Bell. Solicitors for the Great Western Railway Company, Young, Maples, Teesdale, and Young. Q. B.] Common Law Courts. HIBBS v. Ross. COURT OF QUEEN'S BENCH. Reported by JOHN THOMPSON and T. W. SAUNDERS, Esqrs., Barristers-at-Law. May 7 and June 13. HIBBS v. Ross. Evidence-Ship-Registered owner-Liability of for negligence of ship-keeper. The production of a ship's registry, whereby a party is shown to be owner, is evidence from which, when unexplained, a jury may properly draw the inference that such owner employed the person actually in charge of the ship. The deft. was the registered owner of a ship lying in a dock in the care of a ship-keeper. The plt. in crossing this ship (as he lawfully might), in order to get to his own vessel, fell down an unsecured hatchway and was injured. Upon an action brought for the injury against the registered owner, the jury found that the injury was caused by the negligence of the ship-keeper. The only evidence in support of the deft.'s liability consisted in the proof of his being the registered owner of the ship: Held, per Blackburn and Lush, JJ. (Mellor, J. dissentiente), that this was evidence, whilst uncontradicted or unexplained, upon which the jury were justified in finding that the ship-keeper was employed by the deft. This case was tried before Mellor, J. at the London sittings after Trinity Term 1865, when a verdict was returned for the plt., leave being reserved to the deft. to move to enter a nonsuit. The declaration alleged that the deft. was possessed of a vessel called the the Jarnia, lying in the Surrey dock, and that the plt., being the master of another ship lying alongside, was entitled to pass over and across the deck of the Jarnia to get to his own ship, and that the deft. improperly removed the hatches from one of the hatchways, and allowed them to remain off after dark, whereby the plt., having occasion to cross over, fell down the hatchway and was injured. To this the deft. pleaded (inter alia) not guilty. The evidence upon the trial supported the declaration, and the register of the ship was produced, whereby it appeared that the deft. was the registered owner. This was the only evidence to establish his liability. The learned judge was of opinion that this evidence was not sufficient for the purpose, but he nevertheless left the fact of negligence to the jury, as also whether or not there was contributory negligence. The jury returned a verdict for the plt., stating that the injury was caused by the negligence of the ship-keeper, and that there was no contributory negligence. A rule to enter a nonsuit having been obtained, Cur, adv. vult. June 13.-BLACKBURN, J. In this case, tried before my brother Mellor, it appeared that the lawfully passing over a ship then lying in dock, under the charge of a ship-keeper, in order to reach his own vessel which lay on the the other side. In so doing he fell through an unsecured hatchway, and sustained considerable injury. [Q. B. in fact the deft. There was evidence, proper to be left to the jury, a [Q. B. the actual custody. It is by no means conclusive. | their ship, and they can explain how that is if he is The ship may be demised (though that is very not their captain. The same principle applies where rarely the case) and the persons navigating her may the person in control is not the captain, but one be employed by the lessee, or by a person who has acting as ship's husband. That was the case in purchased her, but not yet paid the price, and con- Fletcher v. Reid, R. & M. 202, and Cox v. Reid, R. & sequently not had the ship conveyed to him, as was M. 199. In Fletcher v. Reid the plts. rested the case in Frost v. Oliver, 2 E. & B. 301; 22 L. J. their case on an admission that necessary repairs to 353, Q. B.; or, as is the most common case, they the extent of 540% were done by them to the may be employed by one who is in fact a mortgagor ship Asia, and the bill rendered to one Bulmer, in possession, though the mortgagee is registered as and that defts. during the time when the repairs absolute owner. And when the ship is like the one were done were registered owners; Lord Gifnow in question, not being navigated, but laid up in ford, after objection, decided that this was suffidock, there is the additional possibility that the cient to call on the defts. for an answer; the ship-keeper may be the servant of the dock com- defts. failed in proving, what it subsequently pany, or the ship's broker, or any one else with appeared was the fact, that they were only mortwhom the owners may have made an arrangement gagees, Bulmer being, in fact, not their agent, but to keep his ship for him as a bailee of the ship. But mortgagor, and the plts. obtained a verdict. those are all exceptional cases, and the facts lie so In Cox v. Reid (a similar action against the same entirely in the knowledge of the deft., and may so defts.) they were provided with evidence that easily be proved by him, that I think a jury would the transfer to them was only intended to be as be fully warranted in acting on the prima facie in- mortgagees, though the then Registry Act made it ference that the persons having the actual custody operate in law as an absolute transfer; Best, C.J. of the ship are employed by the owners, unless some told the jury that the owner of a ship is primâ facie evidence to the contrary is given. The case in this liable for repairs, but it was for them to say whether respect in principle somewhat resembles those in that presumption was not met by the facts of the which it has been held that evidence of possession case, and the defts. obtained a verdict. These of demised premises is sufficient proof that the per- were but Nisi Prius decisions, but no attempt was son in possession is assignee of the lease, in the made to disturb either verdict. The whole law on absence of any evidence of facts tending to show this subject was discussed in the two cases of Frost that he is in possession as sub-lessee, or otherwise v. Oliver, 2 E & B. 301; 22 L. J. 353, Q. B.; Mitchi(Doe v. Williams, 6 B. & C. 41); or the cases that son v. Oliver, 5 E. & B. 419; 25 L. J. 39, Q. B., establish that, though dealing with the goods of the and as these are the latest cases on the subject, and deceased is quite consistent with the person who the latter was the decision of a court of error, it is does so being agent for a lawful executor, or claim- important to see what really was decided in them. In ing the goods as his own, yet in the absence of Frost v. Oliver the question arose on a rule to set anything to explain it, the fact is sufficient to aside the verdict obtained by the plt. for mischarge the deft. as executor; "for the most obvious direction in leaving the case to the jury at all, on conclusion which strangers can form from his con- the ground that there was no evidence on which the duct is, that he hath a will of the deceased, wherein verdict could be supported, the Court having_rehe is named executor, but hath not yet taken pro- fused a rule as against the weight of evidence. The bate thereof :" (2 Bl. Com. 507.) If, instead of con- evidence, as the court then took it to be, is reported sidering the case on principle merely, we look to the by Lord Campbell in the beginning of his judgment. cases decided as to ships, I find none in which it has The evidence on the trial of Mitchison v. Oliver been held that the title to a ship is not some evi- came before the Court of Ex. Ch. on a bill of dence that the owners were the employers of the exceptions, and is set out in the beginning of the person who acts as captain; and several which as it report of Mitchison v. Oliver, and was not quite so seems to me are authorities for saying that it is favourable to the plt. as that stated in Frost v. sufficient prima facie evidence that they are his em Oliver, though in substance not different. Lord ployers. At one time it was a common idea that Campbell based his judgment mainly on the ground even if it was proved that the owners did not employ that the facts were such that Oliver was precluded the captain, yet that the ownership of the ship con- from denying that Thompson was his captain, even clusively made them liable to those who supplied if the jury believed that, in fact, Thompson was not necessaries on the order of the captain. That, it is his captain; the decision of the Court of Error was, now established, was a mistake; the persons liable that in this he was wrong. Wightman, J., after are those who really were the captain's principals stating that "the legal title to a ship will furnish when he made the contract, or who have precluded primâ facie evidence that repairs are made under themselves from denying that they were so; but in the authority and for the benefit of the legal owner, all the cases on the subject there was evidence that but if it appear that they were made under the the persons who were on the register as owners were authority and for the benefit of another, the legal not, in fact, employers of the captain. In Abbott on owner will not be answerable," proceeds to state, as Shipping (5th edit. p. 18) Lord Tenterden states his the basis of his judgment, that there was in this view of the law thus: "The title to a ship may fur- case evidence of a holding out by the deft. nish evidence that repairs are made, or stores fur- of himself as the beneficial owner, and "to have nished under the authority and upon the credit of held Thompson out to the world as his captain." the legal owner, as, in fact, they generally are, but The Court of Error decided that in Mitchison v. it does no more; and therefore, if it appear that Oliver there was no evidence of any such holding they were made or furnished under the authority forth as his captain, but they did not impugn and upon the credit of another, the legal owner will the earlier part of his judgment. Crompton, J. not be answerable." In Jennings v. Griffiths, Ry. & did not base his judgment on this erroneous M. 42, Lord Tenterden left the case to the jury, ground. He states the question to be whether using expressions which (though not quite bearing there was "evidence of any authority on the out the statement in the marginal note) seem to me, part of the master to pledge the credit of the deft. when taken in conjunction with this passage, to by giving the general orders for the supply of the show that, in Lord Tenterden's opinion, the title of rigging in question.' He says: "It does not follow the ship was evidence that the owners employed the from the ownership or interest in the ship not captain, and so gave him authority to order neces- determining the question of liability, that it is not a saries for them, though this evidence might be re- material circumstance in ascertaining the question butted. This must be because he is in the control of of credit and contract;" and he proceeds in a very |