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with the coals, Jones & Co. requested the master to sign a draft-a copy of which is set out in the judgment of the Court-to pay for the cargo, which they told him had been MISTLETOE. purchased on ship's account. He signed the draft, as requested. The owners, it appeared on the trial, had sent Jones & Co a draft for £300 to pay for the cargo, but this fact was not known to the master. Jones & Co. shortly after became insolvent, and the draft signed and given them by the master was paid by the owners of the ship through the managing owner, who was arrested for it in Liverpool, and allowed judgment to go by default. The defendants filed a counter-claim against the plaintiff for the amount of the draft he had signed, and certain expenses connected therewith, and on the trial insisted that the amount should be charged by way of set-off against the master. The defendants also contended that they only purchased the cargo for a coal merchant at St. John, receiving a certain freight per ton, and that the cargo could not therefore be considered as on ship's account. The contention of the defendants, however, was rejected by the Court, and judg ment was given in favor of the master for the full amount of his claim, $634.08, and with costs. A point of practice of considerable importance as to giving security for costs, on the part of the plaintiff, arose during the pendency of the suit. Plaintiff's counsel, on September 8, 1887, on motion asked that a day be fixed for the hearing of the cause, and the judge fixed October 3, 1887, as the time for hearing. The defendants, on September 10, 1887, filed in the registry a notice of motion for September 12, 1887, supported by affidavits, calling upon the plaintiff to show cause before the judge in Chambers, on the last named date, why he should not give security for the costs of suit, on the ground that the plaintiff resided at Yarmouth, N. S., outside the jurisdiction of the Court. This motion was opposed by the plaintiff on the ground set forth in his affidavit filed-that he was a stranger in the province and could get no one to go his security; that ever since the commencement of the action he had been a resident of the province, with the exception of a few days, and that he intended to continue a resident

C. A. Palmer for the vessel and owners.

The following judgment was delivered by

WATTERS, J. This is a suit brought by the master of the Mistletoe for wages and disbursements in which plaintiff claims a balance of $634.08. The claim is opposed by the owners of the ship who have appeared to the action, who set up against plaintiff's claim the amount of a bill of exchange given by plaintiff to T. C. Jones & Co., of Liverpool, without instructions from owners, and for which judgment has been recovered at Liverpool by the holders, the Lancashire Colliery Association, whereby the owners allege they have suffered loss and damage.

On the hearing it appeared that the ship of which plaintiff' was master arrived at Liverpool from Manila with a cargo of hemp and sugar; that Messrs. T. C. Jones & Co., of Liverpool, under instructions from the owners at St. John, to whom plaintiff was directed to report the ship, looked after the business of the ship at Liverpool, and collected and received the inward freight; that whilst at Liverpool, Messrs. Jones & Co., under instructions from the owners, purchased a cargo of coals, with which the ship was loaded and sent to the owners at St. John.

No correspondence passed between the plaintiff and the owners whilst the ship was at Liverpool, the business of the ship being attended to by Messrs. Jones & Co. On the 10th February, 1887, after the ship was loaded, and the day before she sailed for St. John, Jones & Co. presented to the plaintiff for his signature the following draft, which plaintiff signed and left with Jones & Co.:

£319 17s. 9d.

LIVERPOOL, 10th February, 1887. Forty-five days after date pay to the order of the Lancashire Colliery Association (limited) three hundred and nineteen pounds, seventeen shillings and ninepence, value received in cargo coals per bark Mistletoe. T. H. CORNING,

(Signed)

To Messrs. T. C. Jones & Co.,

30 Chapel street, Liverpool.

Master.

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The defendants contend that the plaintiff has forfeited all claim to his wages by his signing this draft without any authority or instructions from them, and by his neglect and MISTLETOE. omission to notify the owners concerning said draft, etc. It appears that before the owners had any knowledge of the draft they had placed funds in the hands of T. C. Jones & Co. to pay for the coals, which Jones & Co. failed to pay over, and that the draft came to the hands of the vendors of the coal, who have instituted proceedings against the owners of the ship upon it. As to the law on this subject, in Maud & Pollock, vol. 1, it is said: "As the consideration for the master's wages is the performance of his duty, if he is guilty of any gross misconduct, as barratry or habitual drunkenness, or if he exhibit gross incapacity, it seems that an entire forfeiture of his wages will ensue; but circumstances seldom occur to call for the enforcement of this extreme rule, and when the master, by his neglect or misconduct, has occasioned loss to the owners of the ship, he is liable to compensate them for such loss, and in a suit for wages instituted by the master, the owners may claim to deduct from his wages the amount of such loss."

In considering the acts of the master, it must be remembered that nothing more can be required from him than the honest exercise of his own discretion, according to the degree of ability and experience in business which such an officer may fairly be supposed to possess, and that a mere error of judgment on his part, free from guilty intention or corrupt motive, cannot be regarded as neglect or misconduct. In the case of The Thomas Worthington (1), where the master's claim for wages was opposed by the assignee of the owner on the ground that the master had forfeited his wages by wilful departure from the instructions and by collusion with the agent in a foreign port, it was held that conduct merely erroneous and not tainted with guilty intention will not work a forfeiture of wages, and that more is not required of a master than the honest exercise of a sound discretion proportioned to the degree of ability and knowledge of business which a master may be fairly supposed to

possess.

(1) 3 W. Rob. 128.

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In the case of The Camilla (1), it was held that neither error of judgment or seamanship, nor neglect to communiMISTLETOE. cate to Lloyd's agent the stranding of the vessel, nor neglect to sign a bottomry bond, works a forfeiture of wages.

The case of The Sir Charles Napier (2), cited by Mr. Palmer, the defence was that the master had so neglected his duty as master of said vessel, and conducted himself so negligently, that by his negligence the ship was wrecked and totally lost, but the case was decided on other grounds raised on the pleadings.

In the present case the business of the ship at Liverpool was, by the instructions of the managing owner, placed in the hands of T. C. Jones & Co., who were also directed to purchase a cargo of coal, which they did, and, as plaintiff swears, informed him that the coal had been bought on ship's account. The plaintiff, just before sailing, signed the draft for the price of the coal, the draft being drawn on Jones & Co. in favor of the vendors of the coal; the plaintiff appears to have done this in good faith, believing, as he swears, that it was his duty to do it.

No wilful neglect, corrupt motives, or collusion with the ship's agents are charged against him, and I certainly cannot, under the evidence, impute any such misconduct to him; first, because he signed the draft by the direction of the ship's agents; secondly, because he believed at the time of signing the draft that the coals had been purchased on the ship's account; and, thirdly, because he had the coals then actually on board of the ship. And neither does blame attach to plaintiff for not communicating to the owners the fact that he had signed the draft, that being the duty of the ship's agents when reporting to the owners their dealings and transactions for the ship.

For these reasons I pronounce for the plaintiff's claim, and with costs, and assess the damages at $634.08.

(1) Swa, 312.

Decree accordingly.

(2) 5 P. D. 73.