four years, but the petitioner objected to the intro- will assume that the petitioner knew that the respondent could grant a lease only under certain restrictions, and it will not give the relief sought for, Lewis v. Bond (18 Beav. 85.) No specific performance will be granted of a written agreement altered in accordance with a parol variation-Stangroom v. The Marquis of Townshend (6 Ves., 328); Robson v. Collins (7 Ves. Jr., 132); Gervais v. Edwards (2 Dru. & War., 88); Squire v. Campbell (1 Myl. & Cr., 480); Downs v. Collins (6 Hare, 437); Clowes v. Higginson (1 Ves. & Bea., 524); Martin v. Pycroft (2 De G., M. & G., 785. THE LORD CHANCELLOR.-I think the petitioner is entitled to have his agreement carried out. The respondent has failed to prove satisfactorily to my mind that any abandonment of the agreement ever took place, and I cannot reconcile the account of the alleged destruction of the agreement with the reference to it in subsequent letters; then it was said that the effect of what took place at the meeting between the parties in August, 1859, was to vary the written agreementI do not think so; I look upon the terms agreed upon then as only an arrangement how the old agreement was to be carried out; first, the exact amount of the rent was fixed, then, as part of it, a right of way was given, and as the specific object of the allowance for repairs was that new doors and windows should be put into the house by the petitioner, it was considered that an amount sufficient for that purpose would be allowed to the petitioner in four years. As to what covenants, if any, should be inserted in the lease there has been no evidence laid before me, or what covenants the respondent wishes to have inserted. The rental of the lands issued by the Incumbered Estates Court has not been produced; but the Master will settle what covenants are proper. As to the waste alleged to have been committed by the petitioner, this court will always protect ornamental timber, but I think it is too strong to say that a tenant is to lose the benefit of an agreement for a lease, if he cuts down a small tree some miles from a dwelling-house. Refer it to the Master to settle a lease. COURT OF ADMIRALTY-1860. also alleged, that when the petitioner disputed the [Reported by WM. G. CHAMNEY, Esq., Barrister-at Law.] terms of the agreement, he considered that the petitioner had waived the agreement, and consequently wrote to his solicitor to destroy the. original agreement, which he believed to have been done. A. Brewster, Q.C., (with him J. Corry Lowry) appeared for the petitioner. J. E. Walsh, Q. C. (with him Trevor for the respondent. Mr. Scott has a right to refuse to execute a lease unless all the covenants in the head lease are inserted in it. It has been sworn that the printed rental of these lands was lying upon the table when the agreement was signed, and the petitioner must have seen that the respondent held under a lease, and that he was bound by several covenants: if so, this court THE FORTUNA. Bottomry-Motion to lodge freight-Stipulation for Cargo-Costs. The law as administered by the Court of Admiralty in bottomry suits where two bonds have been executed, gives priority to the last dated, but it will render every facility to the prior bondholder to realize the amount of his security, and for that purpose will order the consignees to bring in and lodge in registry a certified statement of the value of the cargo, and enter into a stipulation for such amount as may be reasonable, to abide ditional order in question, the freight and cargo being the result of the two suits. by the terms of both bonds pledged equally with the In making such an order, if the bottomry suits have have in the power of the court sufficient funds for that The object was to vessel for the payment of them. not been brought to issue, and the validity of the purpose. The consignees of the cargo, Messrs. Cooke bonds thereby ascertained, the court will sus- and Messrs. Corscaden, are, it appears, the owners of pend the issuing of its monition to enforce its it in moieties, the latter being also the holders of the order until after their termination, and, if advisa-bottomry bond last executed, and the petitioners in the ble, until after the sale of the ship; and it will only then be issued if the circumstances of the case render it absolutely necessary. The court will also make an order directing the certified amount of the freight to be brought in forthwith, and lodged in court to the credit of both suits. THIS was a cause of bottomry, in which two suits had been instituted upon the part of two several holders of distinct bottomry bonds, against the galliot "Fortuua " of Riga. A conditional order had been obtained in the first of these suits, on the 14th of May, 1860, directing that the consignees of the cargo should bring in the freight, and enter into a stipulation for the value of the cargo to abide the result of that suit. Affidavits on the part of the consignees were then filed as canse against the conditional order. The facts appear fully in the judgment of the court. Doctors Gibbon and Elrington for the conditional order. Doctors Townsend and Chatterton, Q. C., contra. JUDGE KELLY.—A conditional order was obtained in this cause upon the 14th of May, 1860, directed to the consignees of the cargo of this Russian vessel, admonishing them to bring in and lodge in the registry of the court, the freight of a cargo of flaxseed, lately on board of her, and a verified account of the value of that cargo, and to enter into stipulation, in such sum as the court should direct, to abide the decree of the court in respect to that cargo. That order was obtained by the petitioner in this cause, Bartholewey M'Corkill, of Londonderry, merchant, the holder of a bottomry bond for the sum of £236 9s. 7d., secured upon the vessel, her cargo, and freight, and executed at Wisbey, February 9, 1860, and a warrant was issued against the ship and eargo, but the ship alone was arrested, the consignees having removed the cargo before the execution of the warrant. After the arrest and before the date of the conditional order a second action was instituted at the suit of James Corscaden and Co., of the city of Londonderry, merchants, holders of another bottomry bond, for the sum of £498 15s. 3d., also secured upon this vessel, her cargo and freight executed the 21st April, 1860, the ship alone being made amenable to this action also. The law as administered in this court, in suits of bottomry bonds, giving priority to the one last executed, and the value of the ship being the sole fund in court to meet the two bonds in suit against it, the holder of the bond of earlier date, apprehending that that value would not be sufficient to pay both, and that he thereby would be a loser, obtained the con second suit. They have in their affidavits filed as cause against the conditional order, furnished an account of the freight, namely, a sum, less by advances, of £170 5s., and of the value of the cargo a sum of £1124 7s. 3d. They submit that the amount of the freight should be lodged to the credit of the two suits jointly; and in respect of the cargo simply affirm, that it never had been arrested under the warrant of the court, and was all discharged before the bonds were due. This being the state of facts, the court is called upon to make the conditional order absolute. The jurisdiction of the court to proceed against ship, freight, and cargo is not denied; but it has been argued, and with a full admission that the cargo was amenable te the process of the court whilst on board, that, being now removed and in the possession of its owners, it cannot any longer be made amenable. That argument, if good, would have been an equally good reason on the part of these consignees against bringing in the freight, and yet that freight, although not made amenable in the first instance, is now ready to be lodged by them, in obedience to the monition. But, in support of this proposition, no authority whatever has been cited, and it is admitted that none could be found. The argument against the order rested solely on the ground that the motion was both unusual and inconvenient. Authorities, however have been cited, and are to be found, in support of the motion, which show that in principle and practice it is one which must be entertained. The motion, it is to be borne in mind, is not that the Marshal of the Court should obtain liberty now to pursue into the hands of third parties, and there take a cargo, which had he found on board the vessel where he arrested her, he had full authority to seize then and in the first instance. It is quite distinct from that-it is a motion calling upon the owners of a cargo, pledged as a security for the payment of a special debt, to enter into stipulation to abide the order of the court with regard to it. It is simply calling upon the court in a cause of admitted jurisdiction to make the subject matter of that cause amenable to it by one of its known and usual process in place of by another-by its writ of monition, instead of by its warrant of arrest. The objection is, that the proceedings in a bottomry suit being in rem, a proceeding in personam cannot be resorted to. But in salvage cases which are also proceedings in rem, and therefore precisely alike in principle, when a similar objection was taken to the proceeding by monition, the court overruled that objection, and entertained the suit. The cases of the Hope and the Trelawny (3 Chris. Rob., 215 and 216), and of the Meg Merrilies and the Rapid (3 lag., 346 and 419), leave no doubt whatever on the subject. The case of the Rapid is remarkable. It was a motion for a monition against the owners of the Rapid, and the owners and consignees of the carge, the latter being no fewer than thirteen distinct and different individuals; yet that mo- | There is no doubt as to the power of a master of tion was granted, and the monition served on the se- a vessel to bind the owner with respect to all reveral parties, and returned. That case appears to be pairs necessary for bringing his vessel to its a very full answer to the observations used as an argumentum ab inconvenienti against the issuing of the port of destination. He has also power, as inciwrit where possibly the cargo might be scattered dental to his appointment, to borrow money, but amongst many different possessors. The case of the only in cases where ready money is absolutely Prince Regent now requires to be considered. In that necessary that is to say, where certain payments case, which was like the present one, a suit of bottomry, a motion was made for a monition against the must be made in the course of the voyage, such as owner of the freight to bring it in; that motion was the payment of port dues, or lights, or any dues made by the owner of the cargo, the bond in suit which require immediate cash settlement. being against the ship and cargo only, not mentioning the freight, that is, to use the words of the learned THIS was a cause of materials, brought against the judge, who referred to the case of the Dowthorp-proceeds of this vessel, remaining in the registry of the The owner of part of the property under hypotheca- court, to recover moucys advanced and materials suption prayed a monition against a part of the property plied for the use of the schooner in the months of not specially made liable by the bond; an act on pe- March and April, 1859. The petitioners were three tition was brought in, and the owners of the freight in number-one of them, John Atwell, of the city rested their defence upon the ground that the freight of Cork, claimed a sum of £146 12s. 5d.; another, was not bound, not being named in the bond, and James Harris, of the same city, for £1 15s. 11d.; the that it had not been arrested at the suit of the bond- third, James Bogan, rope and sail maker, also of holder, as he had not proceeded against the freight, that city, a sum of £18 9s. 11d. By an order of but against the ship alone." That was a strong case, court, the several claims were consolidated in one peand yet Lord Stowell overruled those objections-ob-tition, with separate and distinct schedules. The owner jections far more grave and far more important than those made in this case. Where the property sought to be affected is made liable by being named in the bond-where the action has been commenced against it by the bondholder himself, and where he seeks only by the means of a milder species of writ, security for that property which the consignees removed, and retain with a full knowledge of that liability-under all these circumstances, and upon those authorities, the court considers that it is acting altogether within its jurisdiction in disallowing cause shown, so far as to make the conditional order absolute that the consignees bring in and lodge in the registry a certified statement of the value of the cargo, and enter into a stipulation for such amount as may be directed by the court to abide the result of the two suits. But as these suits have not yet been brought to issue, and, consequently, as the validity of the bonds, the subject matter of them has not yet been ascertained, the court will suspend the issuing of its monition to carry out this absolute order until after their termination, and JUDGE KELLY. In this case the following facts are until after the sale of the ship, should that step then established:-The Hemisphere Borealis, of Nova Scobe found necessary. The monition shall then issue tia, a colonial schooner, 83 tons per register, bound or not, as the circumstances shall at that time jus-on a voyage under charter at £80 per month, from tify or require. The court allows the cause shown as to the freight, and directs the sum of £170 5s., its certified amount, to be lodged to the credit of both suits accordingly. THE HEMISPHERE BOREALIS. Materials-Consolidation of suits-Costs. The master of a vessel has no authority to borrow money after work has been done, for the purpose of paying the debt due for it, unless a very strong case of necessity exists which may justify him in doing so. of the vessel, the defendant in the cause, did not appear; but, by feave of the court, Messrs. O'Connor and others, tradesmen of Cork, who had in September 1859, obtained a decree to the amount of £108 6s. 11d. against the schooner, on the foot of demands for materials, also intervened to defend the suit, on the ground of interest, as the schooner had been sold under their decree, and the full amount of sales brought into registry, there to remain until all the outstanding claims for payment were fully brought before the court for adjudication. The facts of the case appear fully in the judgment of the court. (See previous report, ante, page 180. Doctors Townsend and Elrington for the petitioners. They cited The Alexander (1 W. Rob., 346), and The Sophie (1 W. Rob., 368). Doctor Gibbon for the creditors under the decree, cited Beldon v. Campbell (6 Ex. Rep., 886). Newfoundland to Cork and back, arrived at the latter port about the 14th of March, 1859, with a cargo of fish-her return cargo specified to be salt. Having encountered severe weather on that voyage, and lost one of her crew overboard, she was, immediately on her arrival, placed in the hands of certain shipwrights and others to be refitted. Subsequently, although bound by charter to return to Newfoundland, the master of the schooner, of his own act, and unsolicited on their part, paid off and discharged the crew, then but in the middle of their voyage, and having drawn in Cork the sum of £80, on account of freight, in addition to £50, which he had received in advance, at the commencement of the voyage, commenced an action against his owner's vessel, in this court, on the 17th day of May, 1859, to recover the wages due to claim of the petitioners, so far as it seeks repayment of moneys advanced to the master to enable him to pay the debts contracted on account of the ship, for want of evidence of an existing necessity, and relies upon the case of Beldon v. Campbell (6 Ex. 886). On the other side the case of The Alexander (1 Wm. Rob. 346), and of The Sophie (ibid. 368), are cited to show that in a Court of Admiralty at least the rule prevails that money advances are to be considered as binding charges on the ship in favour of the lender. The objection thus taken and met the count will proceed to consider; but, first, it feels called upon to disembarrass itself of the supposition that upon such a subject matter the law is to be administered upon principles different from those which, under the like circumstance, would guide a court of common law. Upon so important a point this court will best and most forcibly express its own opinion by using the very language of the learned judge of the English Court of Admiralty, namely, "I believe that upon this subject there is no real di-tinction between the common the owners of a foreign ship liable for the supply of any articles for which, under similar circumstances, they would not be responsible for in a court of common law.” him elf as master, causing the vessel to be arrested and detained by the court, to meet, by its sale or otherwise, the suit so instituted by him. That suit came on for hearing on the 3rd of June following, and was an undefended suit, the owner not having appeared; and on the 6th of June this court, by its decree, dismissed it. During the progress of these proceedings the shipwrights and tradesmen who had been employed by the master to repair the vessel, intervened for the recovery of their demands in the suit so instituted by the master, and whilst the vessel was still under arrest; and on the 9th of September, 1859, some of them having proved their case, obtained a decree against her for a sum of £108 6s. 11d., with costs. To this interventional suit of these creditors, no more than to the original suit of the master, did the owner make any appearance or make any defence; yet all the due forms of law to obtain an appearance had been ob served. The owner was ascertained to be Mr. William C. M'Donnell, a merchant, residing at Georgetown, Prince Edward's Island. The court, conceiving such a duty to be cast upon itself under the circum-law and the law maritime. This court must not make stances, directed a full and explicit statement of all the proceedings already had, and also of other procedings then showing in the distance, and likely to be brought forward, to be communicated to that gentle-Acting under such a conviction, then, the court will man, in order that, thus informed and pre-informed, he might protect his own interests. That communication reached him, and was in due course acknowledged by him. The scruples of the court upon that hed are, therefore, at rest, although no appearance has up to this day been entered by him. In November last the vessel, condemned to meet the claims of the creditors, was sold by order of the court by public auction in Cork, and realized a sum of £370, being £70 over her appraised value. As the anticipated suits on behalf of the other creditors were at the time of this sale actually pending, the proceeds of it were, by direction of the court, lodged in the registry, there to abide its final order of distribution amongst such of the many creditors as should succeed in establishing their claims. Under these antecedents the present petitioners appear, three in number, but with their several claims consolidated in the one petition; these claims are, respectively, £146 12s. 5d., £18 9s. 11d., and £1 15s. 11d.-the first being for moneys advanced by the petitioner to the master, to enable him to pay off the debts he contracted for repairing the vessel and the wages of the crew; the se coud, partly for the former, and partly for materials directly supplied; and the last for provisions for the vessel, all alleged to have been given on the faith and credit of the ship alone, and none other, and for her necessary use. In support of these several claims many witnesses have been examined, and the case of the petitioners closed. As already stated, the owner of the vessel has not appeared to defend these suits, but those creditors who obtained the decree in September, and the sale of the vessel to meet that decree in November, have been permitted to appear as defendants on the ground of their own interest, the court hoping by such means also to take some care of the interests of an owner who neglected that duty for himself. The advocate for these permitted defendants having spoken to evidence, now calls upon the. court to dismiss the examine how far the objection taken holds good as to the claim of the petitioner Atwell, whose demand is altogether affected by it. His case is, that all the money, with the exception of one item of £9, was lent to the master of the vessel at different times to enable him to pay the various tradesmen to whom he was indebted for materials supplied to the vessel, and the wages of the seamen whom he had dismissed. It is clear then that this is the case, not of the tradesman himself who supplied the materials, or of the shipwright himself who performed the work, or of the seaman himself who gave his services, and who, accordingly, each in their own right, sue the vessel, which was legally bound to them for the payment of their several demands, but the case of a third party, who, by paying off these demands, seeks to transfer their rights to himself. The case of the petitioner Atwell is not this alone. It is more, for it is a case of money borrowed, and therefore lent, without the slightest pressure of necessity being proved, either that the seamen threatened to sue the master for their wages, or the tradesmen refused to supply the materials, or the artizans their work for the vessel, and that the return voyage being thereby prevented, the master was forced to borrow at all hazards. All the evidence is that the work had been done, the labour had been completed, and the seamen had been discharged without necessity by the master, of his own act and at his own times, before he contracted the new obligations to pay off them the older ones. Such being the evidence in the petitioner Atwell's case, it cannot be denied that whatever necessity it has shown for the original debt, it has failed to establish any necessity for borrowing these several sums to pay them off. Now, that is the case of Beldon v. Campbell already referred to; and the very circumstances which have been pointed out in the present case existed there also, and formed the ground of the judgment of the court. Baron Parke, in delivering judgment, says the owner. THE IRISH JURIST. Proctor for the petitioners-The Queen's Proctor. THE JACOB. Collision-Both vessels in dock-Costs. "There is no doubt of the power of the master, by opinion now expressed, namely, an item of £9 for law, (but some, as to what extent it goes,) to bind the master's board with the petitioner Atwell, but that He has perfect authority to bind his prin-item must fall, through its own weakness, it being cipal, the owner, as to all repairs necessary for the impossible to contend that such an item could consti purpose of bringing the ship to its port of destination, tute a charge ag inst the ship, or be considered in any and he has also power, as incidental to his appoint- other light than as the master's own personal debt. ment, to borrow money, but only in cases where ready There is no authority, whatever, for any other view money is necessary, that is to say, where certain pay-of the point, and principle is against it. This petition, nients must be made in the course of the voyage, and therefore, so far as regards Atwell's claim, must be An instance of dismissed. The petition of Bogan, so far as it refor which ready money is required. The rethis is port dues or lights, or any dues which require gards three several sums of £6, £5. and £1, must be immediate cash payments." Now, in that case, the al-o dismissed, and for the same reasons. master had been towed by a steam-tug into the Tyne. maiader, however, of his claim, and the entire of and a few days after had, of his own motion, borrowed Harris's all for materials and provisions supplied money to pay for that service, the steam-tng not hav- directly by themselves, as tradesmen, to the ship and on its security, and the evidence with regard to them, ing objected to tow the master's vessel without any previous payment. Mr. Baron Parke's words upon is sufficient to satisfy the court that they were necesthat are We think that under those circumstances sary supplies. Let a decree, then, be for the amount the master had no power to borrow money in order to of Bogan's claim, reformed on the items pointed out,. pay a debt for which the owner of the vessel was al- with his costs, and also for the amount of Harris's ready responsible by the original contract;" for it was claim, with his costs. admitted that the hiring of the steam-tug was an act within the province of the master. The learned baron then concluded "that that payment was not of necessity, nor did it fall within the authority which the master has by the general law to bind his owner by the contracts which he enters into." Baron Martin adds "The true principle is, that the master has not authority to borrow money after the work has been done for the purpose of paying the debt due for it." Now, the case of The Alexander, although a much earlier case, cited on the part of the petitioner, does not militate against the principles laid down in this case from the Exchequer. The learned judge of the Court of Admiralty in England, in the case of The Alexander, says "What, then, is the distinction between the two cases of necessaries furnished and of money advanced? In both cases I apprehend it is equally incumbent upon the party setting up the claim to establish the existence of a necessity, the only difference is in the extent of the proof required." The law, in casting the onus probandi upon the plaintiff in such cases, is founded upon great and important principles of justice, and the rules resulting from it are framed with wisdom, to remedy great and possible abuses. Acting upon these principles, the court accordingly in that very case of The Alexander, dis missed the petitioners, because they had failed in establishing a case of necessity-that suit being also for materials supplied merely, and requiring a less stringent extent of proof than a case, as the present one is, of money advanced. The case of The Sophie, also referred to, is to the same effect, and equally strong, for in it the same learned judge refused a motion for the sale of the vessel, although before trial and judgadvanced money ment, until proof were given in that the to the master, who was also a part owner, had been advanced for the necessary purposes of the ship. On consideration, then, of all these authorities, this court must hold that none of these items of Atwell's demand are payments of necessity, or falling within the authority which the master has by law to bind the owners. One item of the demand only, as in the early part of this judgment mentioned, has been untouched by these observations, and is not, therefore, included in the It is a settled principle of the Admiralty law, that When a vessel is lying on the shore, or in dock, and If a vessel has been moored in dock under the orders of the harbour master, and another vessel takes up a position next to her of her own motion, and without any direction from the harbour authorities, and a collision occurs, in which the latter vessel sustains damages, she will not be entitled to recover the amount of her loss from the vessel which was regularly moored; and if a suit is instituted in such a case, it will be dismissed, with costs. THIS was a suit of collision instituted by John Callaghan, of Ballyvaughan, in the County Clare, owner |