the Court of Admiralty under this act, the notes of the evidence taken, as by this act provided, under the direction of the Judge, shall be certified by him to the Queen in Council, and received there as the evidence given in the Court below; and no evidence shall be admitted in the Court of Appeal to contradict the same; but the Judicial Committee of the Privy Council are not to be thereby prevented from directing witnesses to be examined or re-examined on such facts as to them shall seem fit in the manner directed by the last-recited act. 65. A party who, at the hearing of a

cause, acted in such a manner as to preclude himself from appealing from a part of it (i. e. the rejection of his principal witness, an appeal in respect of which was disallowed, as being from part of the hearing, and therefore not an appealable grievance,) but whose appeal from the remainder was aliowed, permitted to amend his appeal so as to embrace such part on payment of the costs to that time, embracing a protest to such appeal on grounds which were held not sustainable. Handley and Jones v. Edwards, 8 Jur. 678.

Appearance waives any objection so far as respects the formality of the proceedings. Prankard v. Deacle, 1 Hagg. (Eccl.) 185.

In objection to the juris

diction of the Court - see PRACTICE.

Of the application for prohibition before appearance – see PROHIBITION.

1. Restitution had passed, in solidum, of three fourths of the property claimed, to an American house of trade. Afterwards, on petition, it appeared that one of the partners was an English merchant, and a bankrupt. His assignees prayed a severance of his particular share, to be paid to them as his representatives, for the benefit of his creditors. The Court refused it, as no part of the duty of the Court of Admiralty, saying, that the petitioners must resort to some other authority to make the discrimination between this American partnership stock, for the purpose of subjecting a particular share to a British bankruptcy. The Jefferson, Dennis, 1 C. Rob. 325.

2. Assignees are not bound to act with the same degree of liberality as the owner himself. As trustees for creditors, they are not at liberty to submit to demands which may appear at all questionable, but must take the best means in their power to

render the estate of the bankrupt as beneficial as possible to the persons with the care of whose interests they are entrusted. The Alexander, Tate, 1 Dodson, 278.

3. Assignees are in no better situation in opposing a bottomry bond than owners where there is no bankruptcy. The St. Catherine, Sinclair, 3 Hagg. 253.

4. Assignees of a bankrupt shipowner have a persona standi to appear for the benefit of the general estate, and contest the appropriation of the proceeds of the ship, against the assignees of the freight seeking to make the ship alone liable in the first instance, and this notwithstanding the shipowner had, prior to his bankruptcy, assigned his interest in the ship to other parties not before the Court, as a security for money advanced. The Dowthorpe, Lofty, 2 W. Rob. 73.

Claims of- against proceeds in registry—see SHIP.

ADMIRALTY WITH REFERENCE TO —

II. WHERE Granted.

IV. WHERE SUPERSEDED — ET CONTRA.

III. WHERE refused.

See CONTEMPT.

1. The High Court of Admiralty has the power to arrest or attach in the first instance for a contempt, though such is not the usual practice. On motion for an attachment a monition decreed to show cause why an attachment should not issue for a contempt in taking the cargo of a derelict from a warehouse in which it had been deposited by the agents of the Admiralty. Motion on a ship unknown, 1 C. Rob. 331.

II. WHERE GRANTED.*

2. A vessel was arrested at suit of a part owner, to give bail for her safe return; and an appearance having been given for the master and owner of the other moiety, a commission to take bail was decreed; shortly after which, and without the commission being executed, the master, with the assistance of the mate and six others, took forcible possession of the ship, and carried her to Jersey, where she was arrested for a debt due from the master, and sold to A. B. The Court, on motion founded on affidavit, decreed an attachment against the master and mate; and a monition against A. B., who had assisted in such illegal seizure, and five others, to show cause why they should not be attached for joining in such seizure. A new warrant of arrest against the vessel was at the same time moved for, but no order was made by the Court thereon. A. B. and C. D., his son, one of the parties monished, having moved the Court to dismiss them from the effect of the monition, but such application being opposed, and an attachment against them moved for, the Court ultimately decreed an attachment against A. B., as having possession of the vessel, but dismissed C. D., rejecting the motion for an attachment against him, on the ground that the application should have been sooner followed up, and that he was not one of the principal offenders. The mate, after two months imprisonment, petitioned the Court to be released, on the ground that he acted in ignorance, under

1. Where a vessel was under arrest in the Court of Admiralty in a cause of bottomry, and a distress was levied by magistrates at the suit of the seamen for wages, under 7 & 8 Vict, c. 112. s. 15., by authority of which, notwithstanding notice from the officer in possession, the tackle apparel and

and aged mother dependent on him, and acknowledging his misconduct. His petition was not opposed by the part owner, at whose prayer he was attached; and the Court decreed his discharge. The Petrel, Russell, 3 Hagg. 299.

3. Motion for attachment against a harbour-master, for seizing and carrying off, for non-payment of harbour dues, portions of the rigging and stores of a ship under arrest, in the custody of the officer of the Court, granted, and attachment decreed accordingly. The Harmonie,

Prahm, 1 W. Rob. 179.

4. In an appeal from a decision of a Vice-Admiralty Court, condemning a vessel for a forfeiture, after inhibition had been personally served on the Judge and Registrar of the Court below, the respondent and other parties, the Judge of the Court below, on motion and affidavits that the ship was deteriorating in value, decreed a sale of the ship. A monition thereupon issued from the Court of Appeal for the transmission of the proceeds of sale, to which a return was made, transmitting the same, less the amount of the costs of the Crown, and the fees of the Judge, Registrar, and Marshal. A further monition was thereupon applied for, and obtained, for the transmission of the proceeds retained by the Court below, to which a special return was made, praying, for the reasons therein set forth, that the question as to the transmission of such proceeds retained might be reserved until the hearing; but on application of the appellants for an attachment for non-compliance with such second monition, Held, that such non-compliance was a contempt; and an attachment decreed accordingly against the Judge, Registrar, and others of the Court below; upon which such proceeds retained were afterwards transmitted. Barton and others v. The Queen (The Winwick), 2 Moore, 19.; and see The Dove, and the Nordiska, Wanskapen, cited in the same case, 4 Moore, 275.

On motion subsequently for an attachment against the Judge for costs and damages incurred by reason of such sale, monition decreed against him to show

OF ADMIRALTY WITH REFERENCE TO

III. WHERE

GENERAL AVERAGE ATTACHES ET CONTRA.

CHANTS AS TO

I. OF THE VARIOUS DESCRIPTIONS OF AVERAGE, AND THE PRINCIPLES THEREOF.

1. General average is for a loss incurred, towards which the whole concern is bound to contribute pro rata, because it was undergone for the general benefit and preservation of the whole. The Copenhagen, Mening, 1 C. Rob. 293.†

2. Simple or particular average, is not a very accurate expression, for it means damage incurred by or for one part of the concern, which that part must bear alone, so that in fact it is no average at all. Still the expression is sufficiently

1. For further cases on this head in the Courts of Common Law and Equity, see Harrison's Digest, vol. iii. p. 6235. et seq.; and on the subject of average generally, Smith's Mercantile Law, cap. iii. sect. 5., Abb. Sh. part iv. cap. 10., 1 Park on Ins. 277. et seq.

† 2. The law of general average is of extreme antiquity, being confessedly derived from that passage in the Rhodian code preserved by Justinian: "Lege Rhodia cavetur ut si levandæ navis gratiâ jactus mercium factus sit omnium contributione sarciatur quod pro omnibus datum est." Smith's Merc. Law, 294. The principle of this rule has been adopted by all commercial nations with more or less variation in practice. Abb. Sh. 475. The goods, however, must be thrown overboard; the mind and agency of man must be employed: if the goods are forced out of the ship by the violence of the waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. Again, they must be thrown overboard to lighten the ship, not by the caprice of the crew or passengers, in which case they, or the master and owners for them, must make good the loss. And the act must be done for the sake of all, not because the ship is too heavily laden to prosecute an ordinary voyage through a tranquil sea, which would be the fault of those who had shipped or received the goods on board, but because at a moment of distress and danger their weight or presence prevented the extraordinary exertions required for the general safety. Abb. Sh. 475.

understood and received into familiar use. Ibid.

3. The loss of an anchor or cable, the starting of a plank, are matters of simple or particular average for which the ship alone is liable. Should a cargo of wine turn sour on the voyage, it would be a matter of simple average, which the goods alone must bear, and there might be a simple average, for which each would be separately liable under a misfortune happening to both ship and cargo at the same time, and from a common cause; as, if a water spout should fall on a cargo of sugars, and a plank from the same violence should start at the same time. Ibid.

So

must be included in the general contribution. if to avoid an impending danger, or repair the damage occasioned by a storm, the ship be compelled to take refuge in a port, which it cannot enter without taking out a part of her cargo, which part happens to be lost in the barges employed to convey it on shore, this loss also, being occasioned by the removal of the goods for the general benefit, must be repaired by general contribution; but if after such removal for such purpose the ship and remaining cargo be lost, whilst the portion of cargo so removed be saved, the proprietors of the latter shall not contribute to the loss of the others, because the safety thereof is not owing to that loss. So also (see Shepherd v. Wright, 1 Shower, P. C. 18.) if, on the expectation of a hostile attack, part of the cargo be taken out and sent away and saved, and the ship, with the remainder of the cargo, fall into the hands of the enemy, the part saved shall not contribute to make good the loss. Abb. Sh. 476.

4. The principle of general average does not apply to goods merely, but extends to the ship and its furniture, stores, guns, provisions, boat, and tackle, and to the goods of the master as well as of the merchant. Ibid. 478.

5. All loss which arises in consequence of extraordinary sacrifices or expenses incurred for the preservation of the ship and cargo comes within the description of general average. 1 Park on Ins. 277.

general average to distinguish it from special or particular average (a very incorrect expression used to denote every kind of partial loss or damage hap