out of the proceeds such costs as he may be entitled to retain under the order of the Admiralty Court.

Subject, however, as above mentioned, the shipowner is entitled to an injunction, under the 514th section of the Act, restraining the party who has obtained such a judgment from proceeding further in the Court of Admiralty.

In September 1856 a collision took place between the British steamship "Falcon," of which the Plaintiffs were the registered owners, and a sailing ship called the "Imogene." Shortly after the collision the "Imogene" foundered and was totally lost. The cargo and some of the passengers' luggage were lost with the ship.

The Plaintiffs admitted that, in respect of the loss of the "Imogene," they were answerable in damages to the extent [447] and in manner mentioned in Part IX. of the Merchant Shipping Act, 1854 (that is to say), to the extent of the value of the "Falcon," and the freight due or to grow due in respect of that ship during her then voyage. They also admitted that the value of the ship and freight was insufficient to answer all the claims made or which might be made against them in respect of the loss of the "Imogene."

Several actions were commenced against the Plaintiffs in the Admiralty Court of London by the owners of the "Imogene," by owners of part of the cargo, and by certain of the passengers. And in one of such actions, which had been commenced by the Defendant, Logan, judgment was obtained, whereby the Plaintiffs were condemned in the damages and losses consequent on the collision, with costs. The "Falcon" was arrested by process of the Admiralty Court, and was still under arrest and liable to be sold. The other actions were still pending.

The Plaintiffs now filed their bill to have the value of the "Falcon" and her freight ascertained, and apportioned between the persons who should establish their claims thereto; and praying that the Defendants might be restrained by injunction from prosecuting the actions commenced by them, and from commencing any other actions; and, in particular, that the Defendant, Logan, who had obtained judgment in his action, might be restrained from proceeding to a sale or taking any proceedings to compel or procure a sale of the "Falcon."

Mr. Cairns, Q.C., and Mr. Baggallay, now moved for a decree as prayed by the bill. Mr. Cole, in the absence of Mr. Rolt, Q.C., for the Defendant, Logan, contended that the Defendant, having asserted his rights in rem, and having obtained possession [448] of the ship by the judgment of the Court of Admiralty, for the purpose of satisfying his debt and costs, the ship could not be taken from him by any proceeding in this Court. He was entitled to retain the ship as a security for the full amount of his loss, as well as his costs.

The action in the Court of Admiralty was not an action "pending" within the meaning of the 514th section of the Act, inasmuch as the Defendant had obtained a definitive sentence of that Court.

Besides, the object of the Act was not to deprive the persons injured of any remedy they may have in rem, and which they may assert in the Court of Admiralty, but only to protect the owner from personal liability. The case was one for which the Act had failed to provide.

He cited Ex parte Rayne (1 Q. B. 982) to shew that, notwithstanding the provisions of the 53 Geo. 3, c. 159-the Act then in force for limiting the liability of shipowners -the owner of a ship might be condemned personally in the costs of recovering compensation, although he might thereby become answerable for more than the value of his ship and freight; and the case of the "Saracen" (10 Jur. 396; S. C. on appeal to P. C. 11 Jur. 253), to shew that the party who has obtained a decree like the present in the Court of Admiralty cannot be deprived of his priority, and that a decree of that Court is final.

Mr. Druce, for other Defendants who had actions pending.

Mr. Cairns, Q.C., in reply, submitted to pay the costs of the Defendant, Logan, in the Court of Admiralty; but disputed his right, in respect of the loss he had sustained by the collision, to more than his share, rateably with the other [449] parties injured, to the value of the ship and freight. He cited Hill v. Audus (1 K. & J. 263) and Dobree v. Schröder (2 My. & Cr. 489).

V.-C. XIV.-38

Judgment reserved.

Feb. 18. THE VICE-CHANCELLOR Sir W. PAGE WOOD. As regards all the Defendants except Logan, this case is extremely simple. But as regards Logan it is in a somewhat different position. Logan has taken proceedings in the Admiralty Court, and has obtained a judgment of that Court condemning the ship, for the purpose of answering his debt and costs; and it was insisted on his behalf by Mr. Cole, by whom the case was very ably argued, that, having asserted his rights in rem, and having obtained possession of the ship by the judgment of the Court of Admiralty, for the purpose of satisfying his debt and costs, the ship cannot be taken from him by any proceeding in this Court, and he is entitled to retain the ship as a security for the full amount of his loss as well as his costs.

The general scope of the Merchant Shipping Act is sufficiently clear. Following the provisions of many previous Acts, from about the time of George the Second downwards, but in some respects deviating from those provisions, and leaving to this Court a larger discretion with respect to the orders it might make, the Legislature, by this Act, intended to provide that in no case should the shipowner, unless there were personal default on his part, be liable for more than the value of his ship and freight, in respect of any losses which might be occasioned by the circumstance of his ship having run down or injured other ships. Those pro-[450]-visions are very clearly and explicitly contained in the 504th section of the Act, which says distinctly that this shall be the limit of the owner's liability. Then, in order to secure to shipowners that limitation of liability, and to obtain for them the full benefit of having the whole case settled at once, on their placing themselves in a position to pay or to secure, as the Court may direct, the value of the ship, the 514th section provides, that in cases where any liability has been or is alleged to have been incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats or goods, and several claims are made in respect of such liability, there, subject to the right thereinbefore given to the Board of Trade for other purposes, it shall be lawful for the Court of Chancery to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability, subject as aforesaid, and for the distribution of such amount rateably amongst the several claimants, with power for the Court to stop all actions and suits pending in any other Court in relation to the same subject-matter.

It was contended, on the part of the Defendant, Logan, first, that the action in the Court of Admiralty was not a "pending action" within the meaning of the 514th section, inasmuch as he had obtained a definitive sentence therein; and, secondly, that the object of the Act was not to deprive the persons injured of any remedy which they might have in rem, and which they might assert in the Court of Admiralty, but only to protect the owner from personal liability; and therefore, that the Defendant having obtained this judgment, he is not to be deprived of the fruits of it. The case, it was said, was a casus omissus in the Act; the owner, therefore, must be left to the liability which the ship is now under, and the only protection he can claim is against what Mr. Cole termed his "personal liability."

[451] Now, I apprehend that the argument of personal liability, as contradistinguished from the liability of the ship, is one which cannot be maintained. The liability of the ship-that is, the liability of the shipowner to have his ship confiscated for the purpose of making good the damage inflicted-is a liability to which the owner is exposed; and it never could be contemplated by the Legislature that the owner should be liable to a suit which the Legislature must have known might at any time be instituted in the Court of Admiralty for the purpose of having his ship sold, and should after that be again liable to make good the whole value of the ship to any person who might sue him. There is no provision in the Act which in any way justifies the supposition that the Legislature had any such intention. It would be a very strange construction of the Act with regard to the liability of shareholders in joint stock banks—for instance, in the case of an Act providing that shareholders should be liable to the extent of their respective shares, and at the same time giving the directors a lien on those shares for debts of the shareholders-to say that if the directors, by virtue of such lien, were to sell the shares, the personal liability of the shareholders would still remain, ultra the shares, to the whole amount which they

might have subscribed. And again, in the case of a mortgage, with a contract that the mortgagor should be liable to the full value of the mortgaged estate, it would be a strange doctrine to maintain in this Court that, if there were a foreclosure and sale, the mortgagor would still continue liable in respect of the mortgage debt. That, therefore, is an argument which cannot be maintained by the Defendant, Logan; and, notwithstanding his judgment in the Court of Admiralty, the utmost to which he is entitled in respect of the loss he has incurred by the collision is to share rateably with the other parties in the value of the ship and freight.

[452] To a certain extent the Defendant, Logan, has obtained an advantage over his Co-defendants by means of the sentence of the Court of Admiralty, since that sentence has given him the security of the ship for his costs, and that security is one with which the Act does not enable me to deal. The Act enables the shipowner to protect himself from the costs of numerous actions, the 514th section providing that he may apply to this Court to stay such actions, and to have the amount of his liability ascertained; but as to any control to be exercised over the ship itself the Act is silent. And I apprehend this Court could not exercise any such control, except by way of annexing a condition in granting the relief sought. If the ship were still the property of the owner, and in the possession of the owner, and not subject to the process of the Court of Admiralty, it is possible this Court might have imposed some condition upon the owner, and declined to grant him the relief he has sought, except on the terms of his pledging the ship by way of security. But I do not see any way in which the Act has given this Court any control over the ship itself.

This circumstance removes the case from the application of any arguments from the analogy of the course of proceeding in creditors' suits. The truth is, there is no such analogy. In creditors' suits the ground upon which one creditor is enabled to stay proceedings by another after bill filed is that this Court retains the assets of the testator as a common fund, out of which all creditors ought to be paid rateably. A decree being once made for the administration of that common fund rateably, then, for the benefit of all the creditors, the other suits are stopped; so that it was at one time even doubted whether the executor could apply for an injunction, although it was afterwards determined that he could. But in this case there is nothing of the kind. Here the ship is not made a common fund out [453] of which the creditors can obtain payment of their debts, but the Act simply gives the owner the power of protecting himself, as provided by the 514th section. The argument, if any, from analogy, is all in favour of the Plaintiff; because, in a creditors' suit, if the judgment at law be only one which affects the goods of the testator, and not a judgment for satisfaction de bonis propriis, this Court interferes, and prevents the creditor from suing, just as much after judgment as in other cases before judgment. When the judgment is de bonis propriis, the Court does not interfere, because then the liability becomes the personal liability of the executor. But in truth there is no analogy whatever between that course of proceeding and the present.

All that I have here to consider is whether the circumstance of there having been a final judgment, a sentence pronounced by the Court of Admiralty prevents the exercise of the jurisdiction which the Act has given to this Court, of stopping "actions and suits pending in any other Court in relation to the same subject-matter.' (Sect. 514.) In reference to that question the case of Dobree v. Schröder (2 My. & Cr. 489) is an authority (although the point was not argued I suppose because no one thought the contrary could be successfully maintained) that, after judgment recovered at law, this Court will interfere. In that case two judgments had been recovered at law, and yet the jurisdiction was exercised by this Court. The course at law and I have looked at several of the cases at law for this purpose is this: After the judgment there is a writ of inquiry to ascertain the damages and, if necessary, the value of the ship. What would be the right course to be taken if the value of the ship had been realised is another question; but so long as that has not been done, it appears to me that it would be clearly a narrow construction of the word "pending," in [454] the 514th section of the Act, to hold that the owner is precluded from applying to this Court, under the Act, to prevent the ship from being disposed of in any other way than according to the Act, namely, so as to limit his liability to the amount of the value of the ship at the time of the collision and the value of the freight.

The question is what is to be done now that the ship is under sentence of the Court of Admiralty, and the Defendant, Logan, has obtained that security for his rateable share of the amount to be paid, and for the costs of his suit in that Court. And it seems to me that the right course to take is this: Regard being had to the position in which the ship now is, namely, that it is not in the control of the Plaintiff, and that it is not, as I conceive, under the control of this Court, but under that of the Court of Admiralty, the only restriction I can impose on the Defendant will be to take care that he does not realise more than he is entitled to realise in respect of his security, namely, the amount of his costs in the Court of Admiralty, and the amount of his share rateably with the other parties who have been injured in respect of the loss he has sustained.

Logan has a lien on the ship for the amount of his costs in the Admiralty Court, and those costs should be paid into Court, as well as the extra value of the ship at the time of the collision, for the benefit of the other persons who have incurred loss by the collision.

The Defendant, Logan, must be at liberty to sell the ship, and to retain out of the proceeds such costs as he is entitled to under the order of the Court of Admiralty ; and upon such sale being made, he and all other parties must concur in all necessary acts for the transfer of the balance into Court.

The Plaintiff must pay into Court the extra value of the ship at the time of the collision, as compared with the pre-[455]-sent value, the estimated costs of the Defendant, Logan, in the Admiralty Court, and the value of the freight. There will then be precisely the same inquiry as to the value of the ship as in the case of The African Steam Ship Company v. Swanzy (2 K. & J. 660). Then an injunction restraining the Defendant, Logan, from proceeding in the Admiralty Court, subject to his being at liberty to sell the ship, and to retain out of the proceeds such costs as he may be entitled to retain under the order of the Court of Admiralty. And an injunction restraining the other Defendants from proceeding in the Admiralty Court until further orders; with liberty to any party to apply.

Decree accordingly.

[455] In re HUNGERFORD'S TRUST. July 4, 1857.

[See In re Gore Langton's Estate, 1875, L. R. 10 Ch. 333.]

Practice. Railways.

Lands Clauses Consolidation Act. 8 & 9 Vict. c. 18, s. 79.
Incumbrances. Service of Petition.

Upon a petition for payment to the Petitioner of the income of a fund arising from the sale of land to a railway company, the Petitioner being in possession at the time of the sale as tenant for life, subject to mortgages created by himself, the Court will make an order without requiring the mortgagees to be served with the Petition.

But, semble, such service could not have been dispensed with, in case the tenant for life had been out of possession at the date of the sale.

Petition for payment to the Petitioner of the income of a fund arising from the sale of lands to a railway company.

At the time of the sale the Petitioner was in possession of the lands as tenant for life, subject to certain mortgage debts created by himself.

The company objected that the order could not be made unless the mortgagees were first served with the petition.

Mr. Schomberg, for the Petitioner, submitted that service on the mortgagees was unnecessary.

[456] THE VICE-CHANCELLOR Sir W. PAGE WOOD thought that, if the Petitioner had been out of possession when the land was sold, the incumbrancers ought to have been served; but inasmuch as they had allowed him to be in possession, such service was unnecessary. It was their business to look after their own security.

[456] In re MORTLOCK'S TRUST. July 4, 1857.

[S. C. 26 L. J. Ch. 671; 5 W. R. 748. See Freeland v. Pearson, 1867, L. R. 3 Eq. 662; Humble v. Bowman, 1877, 47 L. J. Ch. 64.]

Will. Construction. Absolute Gift. Power.

Bequest to two persons "in two equal parts, each for his and her sole use and benefit, and to be disposed of as each of them pleases, at their death, or if not so disposed of, to be equally divided at their deaths between their children:" Held, an absolute gift of the principal.

Mary Anne Mortlock, by her will, dated 1850, after directing all her property to be converted into money, bequeathed one-fifth part thereof "to the Rev. Charles Mortlock and to Mrs. Rawlins" (meaning the Petitioners), "in two equal parts, each for his and her sole use and benefit, and to be disposed of as each of them pleases at their death, or if not so disposed of, to be equally divided at their deaths between their children as they respectively attain the age of twenty-one years."

A sum of £1158, 19s. 3 per cents. having been paid into Court by the executors in respect of this bequest, the Petitioners prayed that the same might be sold and the proceeds paid to them in equal moieties.

Mr. H. Stephens, for the Petitioners, contended that this was an absolute gift of the fund to them, citing Hales v. Margerum (3 Ves. 299), In re Yalden (1 De G. M. & G. 53), and the cases there cited, and Tomlinson v. Dighton (1 P. Wms. 149).

Mr. Martindale, for the executors and for children of the Petitioners, contended that, having regard to the terms of the bequest and the gift over, the Petitioners took, not an [457] absolute interest, but each of them a life interest only, with a power of disposing of the principal; subject to the exercise of which power the children were entitled.

A reply was not heard.

VICE-CHANCELLOR Sir W. PAGE WOOD. The rule is that, where there is an absolute gift by will, followed by words sounding like a power, with a gift over if it be not exercised, there the Court gives effect to the absolute gift as such, and the gift over is held inconsistent with that absolute gift, and therefore void.

The only question that could arise is whether a like construction would be put upon a bequest where the exercise of the power is required to be by will, or whether, in such a case, the bequest would not be cut down to a life interest in the donee, with a power for him to appoint by will. But the question, how such a bequest might be construed, does not arise here, for here the words are "to be disposed of as each of them pleases at their death," words which would be satisfied not merely by an appointment by will, but by an appointment by instrument inter vivos, to take effect at the death.

That being so, the bequest is in truth nothing more than that which came before the Lords Justices in Re Yalden (1 De G. M. & G. 53), where the words were "by will or otherwise," which could admit of no doubt.

I must, therefore, hold that the Petitioners took absolute interests in the fund in question. (Vide Barton v. Barton, infra, 512.)

[458] JOEL v. MILLS. HARVEY v. MILLS. June 26, July 3, 1857.

[See In re Landon's Trusts, 1871, 40 L. J. Ch. 371; In re Dugdale, 1888, 38 Ch. D. 181; In re Nettlefold's Trusts, 1888, 59 L. T. 317; In re Parsons, 1890, 45 Ch. D 59. For subsequent proceedings, see 30 L. J. Ch. 354.]

Devise.

Equitable Life-Estate. Proviso for Cesser. Restraint on Alienation. Appointee.
Equity to secure Fund. Trustees. Discretion.

A direction in a will, that an equitable life interest in real estate thereby devised shall cease and determine if the devisee should attempt to alienate it, is valid, whether there be a gift over of his interest on that event or not.