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perfectly clear-it is almost admitted-that it was essential both to the validity of the original attachment and to the prosecution of the remedy which the 215th section gives against a Garnishee who parts with the property that has been attached, that the property should belong to the Defendant in the action.

The question to whom these teas belonged cannot, in their Lordships' opinion, be affected by any of those principles which are sometimes applied to sales by an Agent on behalf of an undisclosed Principal, and give to the Vendee such rights of set-off, or the like, as he would have had if the property in the thing sold had been really and not ostensibly in the Agent.

In those cases the contract subsists, and the question is in what mode it is to be carried out. Here there has been a breach of contract, and the party is suing in a particular way for the money which he has paid under that contract as upon a failure of consideration, and for damages sustained by reason of the breach of contract. The words of the section require, that the property attached should belong to the Defendant. They imply an actual and not merely a constructive ownership in him. Their Lordships have already in the course of the argument intimated that there is no ground for saying that the Garnishee was estopped by his conduct from showing in whom the actual ownership was.

Upon the Summons various affidavits were filed upon both sides, and the Judge came to the conclusion, that the property in the teas was really in Tange, and not in Threlkeld, the Defendant in the action, and, therefore, that it was impossible to say that the

1869.

WILSON

v.

TRAILL.

1869.

WILSON

V.

TRAILL.

Defendant had sustained any damage by reason of the Garnishee parting with property which was not properly subject to the attachment at all, and accordingly he dismissed the Summons.

The only substantial questions that seem to be raised by this appeal are, whether the Court on the evidence before it should have come to a contrary conclusion, or whether the case was left in such a state of doubt that the Court ought, under the power which a subsequent section gives it, to have directed an issue as to the question of property to be tried?

Their Lordships are of opinion, that the first question must be answered in the negative; that upon the affidavits it is impossible to say, that the balance of testimony was not against the contention of the Appellants.

With respect to the other question, although at times in the course of the argument their Lordships may have felt more doubt concerning it, yet, looking to the affidavits as corroborated by the acts of the parties, and the inferences which arise from the Bank at Sydney giving up its claim of lien against Threlkeld on the conviction that the property was the property of Tange, they cannot say that there was such a case of doubt, that the Court below, in the exercise of its discretion, has erred in not granting an issue to try that question.

Their Lordships, therefore, feel that it is impossible for them to say that the judgment of the Court below is wrong, or that the Court was bound in its discretion to grant an issue, and they must humbly advise Her Majesty to dismiss this appeal: with costs.

ON APPEAL FROM THE HIGH COURT OF
ADMIRALTY.

THE GENERAL STEAM NAVIGATION

COMPANY, THE OWNERS OF THE Appellants;
STEAMSHIP VELOCITY

AND

THOMAS HEDLEY, GEORGE HEDLEY,

AND WILLIAM HEDLEY, THE OWN- Respondents.*
ERS OF THE STEAMSHIP CARBON

THE "VELOCITY."

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THIS was a cause of damage promoted by the Respondents in consequence of a collision which occurred between the Steam-vessel " Velocity" and the Steam-vessel "Carbon," under the following cir

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Early in the morning of the 5th of September,

* Present:-Lord Chelmsford, Sir James William Colvile, and Sir Joseph Napier, Bart.

26th & 27th

Nov., 1869.

Construction of Articles 13, 14, and 18, of the Steering and Sailing Rules of the Merchant

Shipping Acts
Amendment

Act of 1862
(25th & 26th
Vict. c. 63).

In inferring the intended movements of a Vessel approaching from a contrary direction, the relative position of the two Vessels when they first come in sight of each other must not alone be regarded; other circumstances, such as the bend of the River, or the necessity of avoiding another Vessel, which may occasion the apparent alteration of course, must be considered.

By the Merchant Shipping Acts Amendment Act of 1862, Vessels navigating narrow channels are at liberty to go on whichever side they please, taking care to observe the Regulations for preventing collision. A Steam-vessel coming up the River Thames came in sight of another Steam-vessel proceeding down the River at the time she was rounding a bend of the river, and for that purpose had placed her head in such a

NAVIGATION

COMPANY

v.

HEDLEY.

The

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1869. 1868, the "Velocity," a Steam-vessel of about 179 THE GENERAL tons register, and drawing about nine feet of water, STEAM left London, bound for Calais, with a light cargo, and with twelve Passengers on board. After passing Cuckold's Point, up to which point the "Velocity' had been proceeding along the south shore of the "Velocity." River, she crossed the River, and then kept along the north shore, passing Millwall Pier at a distance not greater than a ship's length. She rounded Millwall Pier under her starboard helm, and continued under the starboard helm, so as to hug the north shore. The River there takes a considerable bend, necessitating a Vessel going down the River using her starboard helm. When the "Velocity" was off the Millwall Pier, a Vessel showing a green light, which afterwards proved to be the "Carbon," a Screw Steamer of 399 tons, was observed by the Master of the "Velocity" about the distance of a quarter of a mile, bearing two points on the starboard bow, and to the south of mid-channel. At this time there appeared to him to be no risk of collision; and,

direction that, unless her course was changed, the Steamers would, if the former kept her course, cross each other so as to involve risk of collision; whereupon the Steamer coming up the River, having the other on her starboard side, changed her course so as to keep out of the way, if the other Steamer followed the direction in which her head was turned: the latter not doing so, but pursuing her intention of rounding the bend of the River, the two Steamers came in collision. A suit having been instituted against the Steamer rounding the bend of the River, the Judge of the Admiralty Court held, that the Plaintiffs' Steamer had only done what was required of her under the 14th Article of the Regulations for preventing collisions, which directs, that "if two Ships under steam are crossing, so as to involve risk of collision, the Ship which has the other on her own starboard side shall keep out of the way of the other :"-On appeal, held, by the Judicial Committee, that the decree was wrong, that the 14th Article did not, in the circumstances, apply, and that the Plaintiffs' Steamer was, therefore, not justified by it: that the Steamer sued was acting in conformity with the 18th Article, which directs, that where by the Steering and Sailing Rules "one of two Ships is to keep out of the way, the other shall keep her course;" and that the Steamer sued was not in any way to blame.

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1869.

STEAM

COMPANY

v.

HEDLEY.

The

accordingly, he did nothing but starboard his helm a little, for the purpose of keeping as near to the north THE GENERAL shore as the depth of water would allow. Very NAVIGATION shortly afterwards, however, the helm of the "Carbon" was ported, so as to make her come right across the river. It was then impossible for the "Velocity" to have avoided a collision with the "Velocity." Carbon," whereupon the Master of the "Velocity put his Vessel's helm hard-a-starboard, in order to run her ashore, and thereby save the lives of the Passengers. The collision, which had thus become inevitable, took place close to the north shore, the stem of the "Carbon" striking the starboard bow of the "Velocity," and both Vessels taking the ground. The Appellants brought an action in the Court of Exchequer against the Respondents, to recover damages in respect of the aforesaid collision; the Respondents pleaded not guilty, and issue being joined on this plea, the action was tried before the Lord Chief Baron and a special jury at the Guildhall. On such trial the jury found a verdict for the Appellants, with damages. On an application for a new trial the Court refused to grant a rule nisi.

A suit was also brought by the Respondents in the High Court of Admiralty against the "Velocity," when the contention on behalf of the Respondents was, that the "Carbon" was right in porting, and that the two Steam-vessels were crossing Ships within the meaning of the 14th of the Sailing and Steering Rules.

After hearing the evidence, the Judge (The Right Hon. Sir Robert Phillimore) and Trinity Masters were of opinion, that the two Steamers were crossing each other within the meaning of the 14th of the Steering and Sailing Rules, and that the "Velocity"

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