from particular average, is not liable for a partial loss upon the whole consignment, Arnould, sect. v. 1038. 2nd. If so, the plaintiffs have no locus standi under the statute, because they are claiming, not for goods which were carried into England, but for goods which were not. The section must be construed strictly. In The Kasan, 1 N. R. 246, it was held that the words "breach of contract" The Ironsides, 1 Lush. 458, Damages received by any ship," 3 & 4 Vict. c. 65, s. 6, and "damage done by any ship," 24 Vict. c. 10, s. 7, refer to damages the result of collision exclusively. "Claim in respect of towage," 3 & 4 Vict. c. 65, s. 6, means claim for towage rendered, not claim against the owner of the towing vessel for breach of contract. This was a cause of damage instituted by the owners "Robert Pow," and her owners. related back, and must be in respect of "goods carried of the bark "Ilma" against the steam-tug, the into any port of England or Wales." "Carried' The petition alleged as follows:-that, on the 13th of May last, the does not mean "to be carried." In "Robert Pow" was engaged to tow the "Ilma" to Shields, and thence to one of the docks; that the "Ilma" took on board a licensed pilot to give directions; and that, owing to these directions being disregarded by the master of the "Robert Pow," the "Ilma" got aground in the Tyne, and suffered damage. the Court disclaimed jurisdiction over a claim against a vessel, which ultimately reached England, for nondelivery of goods which had been shipped on board of her, on the ground that such of the goods as were delivered had been transhipped on the voyage, and reached England in another vessel. Lopes, in reply. There is prima facie evidence that the goods were carried into a port in England. The bill of lading states the goods to have been shipped, and then the vessel makes good her voyage to a port in England. The defendant cannot impeach the contents of his own bill of lading, 18 & 19 Vict. c. 111, s. 3. DR. LUSHINGTON.-The construction claimed by the defendant would, in the majority of cases, denude the statutory provision of its efficacy. I think that the remedy given by this section against a vessel, the owner of which is not domiciled in England or Wales, is open to a consignee in the case of his goods not being duly delivered, subject only to this conditionthat the ship in which the goods were agreed to be carried, and on which they were shipped, reaches an English port without the goods having been transshipped. In the case of The Ironsides, this condition was not satisfied. The fourth paragraph of the defendant's answer must be expunged. Before the Right Hon. Dr. LUSHINGTON. Jurisdiction-Towing Vessel-Breach of Contract-"Damages received by any Ship," "Claim in respect of Towage," 3 & 4 Vict. c. 65, s. 6—“ Damage done by any Ship," 24 Vict. c. 10, s. 7. A vessel in tow is run aground by the unskilfulness of the master of the steam-tug. The Court has no jurisdiction to entertain a suit for redress, the damage not having been occasioned by any collision with another vessel. Clarkson, for the defendants, now moved to reject the petition. The Court has jurisdiction only under a. 3 & 4 Vict. c. 65, s. 6, "The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to, or damage received by, any ship or seagoing vessel, or in the nature of towage, whether such vessel may have been within the body of a county, or upon the high seas, at the time when the services were rendered or damage received." b. 24 Vict. c. 10, s. 7, "The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship." Both these enactments refer only to damage from collision. Lushington, for the plaintiffs, in support of the petition, relied on The Nightwatch (unreported); The Julia, 1 Lush. 224. If a steam-tug can claim for towage, it would be inequitable for the vessel towed to have no claim against the steam-tug for towing improperly. The expression in the 3 & 4 Vict. c. 65, s. 6, "damages received by any ship," and the expression in 24 Vict. c. 10, s. 7, "damage done by any ship," each refer to damage the result of collision with another vessel. Here there was no collision. And the expression in the former Act, "claim in the nature of towage,” means claim for towage rendered, not claim by the ship towed against the tug and her owner for breach of contract. I dismiss this petition with costs. - Master Jurisdiction Wages—“. "Earned on board" Disbursements 17 & 18 Vict. c. 104, ss. 181, 191–24 Vict. c. 10, s. 10— Mortgagee. A master is entitled to sue for his wages within the 10th sect. of the Admiralty Court Act, 1861, if he has been engaged and acted as master, although during his service he lived on shore, and the vessel never sailed. In the same case he is entitled to his disbursements. The claim of a master for wages and disbursements is anterior to that of mortgagee. A mortgagee stands in no better position than the owner. A purchaser of a vessel by registered bill of sale is held to have continued the engagement of the master, if he does not discharge him, and allows him to perform his duties. The facts of the case were as follows: On the 20th of March, 1862, "The Chieftain," a vessel of the Port of Greenock, Donald McLarty being the registered owner, went into the yard of the Thames Graving Dock Company (Limited) to undergo repairs. On the 26th of May the plaintiff was hired as master. On the 25th of November "The Chieftain" was taken out of the yard of the Thames Graving Dock Company into the Victoria Docks. On the 15th of January, 1863, Messrs. Redfern & Co., being mortgagees, entered into possession of the vessel. On the 21st of January, the Thames Graving Dock Company took a second mortgage of "The Chieftain" to secure their debt on account of repairs. On the 14th of February the plaintiff arrested the vessel for his wages and disbursements, and the Thames Graving Dock Company appeared and gave bail. On the 13th of March, Messrs. Redfern & Co., by a bill of sale subsequently registered on the 30th of the month, sold "The Chieftain" to Mr. Wilson, and after paying themselves handed the residue of the purchase-money to the Thames Graving Dock Company (Limited), who applied part of the proceeds to pay seamen's wages, and retained the balance, which they alleged was insufficient to cover their mortgage debt. On the 24th of March the plaintiff was dismissed from his office of master by Mr. Wilson, the registered owner. The plaintiff then re-arrested the vessel. There were thus two actions by the plaintiff: the first against "The Chieftain," McLarty, and the Thames Graving Dock Company (Limited), to recover what was due to him for wages and disbursements as from the 26th of May, 1862, to the 14th of February, 1863, the date of the first arrest of the vessel; the second against "The Chieftain" and Mr. Wilson for his wages and disbursements as from the 14th of February, 1863, to the 24th of March, 1863, the date of the plaintiff's dismissal. It appeared that throughout the period of his service-namely, from the 26th of May, 1862, to the 24th of March, 1863—the plaintiff lived and slept on shore, but that in all respects he had acted as master. He had seen to the repairs of the vessel, according to his engagement, whilst she was in the Thames Graving Dock, and when she came out very leaky, he had employed pumpers and had paid them; then, in the Victoria Docks, he had superintended the shipping of a cargo on board of her, under a charterparty to Singapore, and had signed bills of lading for the same, and had paid the crew, and the only reason why she had not sailed was that the mortgagees would not let her go. The defendants, however, in both suits contended that, as the plaintiff had lived on shore, he had not earned his wages on board, and, therefore, that the Court had no jurisdiction. The statutory provisions referred to as regulating the jurisdiction were as follows: Merchant Shipping Act, sect. 181. A seaman's right to wages and provisions shall be taken to commence either at the time at which he commences work, or at the time specified in the agreement for his commencement of work or presence on board, whichever first happens. Sect. 191. Every master of a ship shall, so far as the case permits, have the same rights, liens, and remedies which, by this Act, or by any law or custom any seaman, not being a master, has for the recovery of his wages. Admiralty Court Act, 1861, sect. 10. The High Court of Admiralty shall have jurisdiction over any claim by a seaman of any ship for wages earned by him on board the ship, whether the same be due under a special contract or otherwise, and also over any claim by the master of any ship for wages earned by him on board the ship, and for disbursements made by him on account of the ship. Cleasby, Q.C., and Lushington, for the plaintiff. 1st. As to wages, the Court has jurisdiction under both statutes. The second statute is an enabling one; it gives new rights to seamen to sue under a special agreement, and new rights to masters to sue for disbursements. It was not intended to introduce any restriction by the insertion of the words "earned on board." Besides, these wages were earned on board. 2nd. As to disbursements, the Court has jurisdiction under the second statute. 3rd. The plaintiff, as master, has priority over the defendants in the first suit, the mortgagees, The Caledonia, Swab. 17; The Salacia, 1 N. R. 194. Karslake, Q.C., and Clarkson, for the defendants, in both suits. 1st. As to wages, the 2nd statute supersedes the 1st, and advisedly limits the right of master to wages earned on board. These wages were not earned on board; the plaintiff lived on shore. 2nd. The claim for disbursements stands or falls with that of wages. He cannot sue for these wages, therefore not for disbursements. 3rd. As to the claim in the second suit, the original contract for the engagement of the plaintiff was personal with McLarty. The plaintiff must show a continuance of the old contract, or the creation of a Wilson had nothing to do with the new one. plaintiff. DR. LUSHINGTON.-The plaintiff clearly was engaged as master on the 26th of May, 1862, and performed the duties of master until the 24th of March, 1863. He performed them none the less because he lived on shore. A master is often necessarily on shore: he has duties before the ship sails, and these do not consist only of duties on board. I should throw the whole matter into confusion, if I made it doubtful when a master's right to wages commences. The plaintiff is entitled to his wages; and, if so, to his disbursements also. And his right is anterior to that of the defendants in the first suit. A mortgagee is in no better position than the owner. As to the question raised in the second suit, the defendant Wilson might have discharged the plaintiff. He did not, but suffered him to continue his duties; and he must now pay him his wages and disbursements. The plaintiff must have his costs in both suits. VOL. II. X Privy Council. 27, 28 JUNE, 22 JULY, 1863. EQUITY. ADVOCATE-GENERAL OF BENGAL, Appellant, v. RANEE SURNOMOYEE, Respondent. Present― THE LORD KINGSDOWN, SIR E. RYAN, SIR J. T. COLERIDGE, SIR L. PEEL, SIR JAMES W. COLVILE. Criminal Law in India. Felo de se For have been set up by the East India Company on behalf of the Crown, and very large sums were from time to time, by the order, or with the consent of, the Indian Government, paid over to the widow in the years 1846 and 1847. A portion, however, of the rajah's personal estate, amounting to between 6 and 7 lacs of rupees, was secured in the Supreme Court, in order to provide for feiture Right of the Crown to goods of a the payment of life annuities to two ladies, both then native Hindu, who committed suicide. When Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live among them, and become members of their community, become also subject to the same laws. But this was not the nature of the first settlement made in India, where European settlers were permitted to use their own laws, though those laws were not extended to the natives. The subsequent acquisition of sovereignty by the English Crown, made no alteration, but left the native laws unchanged, unless by express enactment. The English law, civil and criminal, has been made applicable to natives since 1726. But this is subject to the qualifications required by the habits of the people. Therefore the law of forfeiture upon a person found by inquisition a felo de se, has never been expressly introduced into India, and cannot be inferred indirectly to exist there in the case of native Hindus. living. The existence of these charges seems to have been the only reason why this fund was not transferred to the widow with the rest of the estate. One of the annuitants was lately dead, and the fund reserved to answer her annuity set free. This fund was now claimed by the Indian Government under the finding on the inquisition of 1844. Forsyth, Q.C., and Melville, for the appellants. 1st. The law prescribing the forfeiture of the goods and chattels of a felo de se, is part of the Common Law of England, and the Supreme Court of Calcutta is bound to administer the Common Law as it prevailed in England in the year 1726, unless it has been subsequently altered by statutes extending to India, or by Acts of the Legislative Council of India. See Bac. Abridg. "Forfeiture " B.; 2 Steph. Blacks. Com. 495 (5th ed.). The English Criminal Law was applicable to natives as well as Europeans within Calcutta when the death Semble, the law of forfeiture of the goods of a felo of the rajah took place, the sovereignty of the English de se, does not extend to Europeans in India. The question upon this appeal arose on the claim of the Crown to a portion of the personal estate of Rajah Christenauth Roy Bayadoor, who destroyed himself in Calcutta on the 31st of October, 1844, and was found by inquisition to have been a felo de se. The rajah had a residence in Calcutta, though his raj or zemindary was at some distance from that city. He was a Hindu both by birth and religion. On the morning of the day on which he destroyed himself, he made a will, by which he left a large portion of his property to the East India Company, for charitable purposes. This will was disputed by his widow, successfully, and the Indian Government acquiesced in the verdict. The inquisition had found that the goods and chattels of the rajah, when he committed suicide, amounted, within Calcutta, to 987,063 rupees, and, without the town of Calcutta, to 289,500 rupees; and it stated, that all this property was claimed by the widow. No claim to any part of it appears, at that time, to Crown being at that time established. The English settlers, when they first went out to the East Indies, in the reign of Queen Elizabeth, took with them the whole law of England, both civil and criminal, except so far as it was inapplicable to them in their new condition, and it therefore became part of the law of the country. 2nd. English law was introduced into the East Indies by the charter of Charles II. in 1661, which authorised the governors appointed by the company to judge all persons according to the laws of England, and by the charter of 13 Geo. 1, in 1726, this was made distinctly applicable to all natives within the limits of Calcutta. 3rd. The law of forfeiture as entailed by felony has been held applicable to India, Advocate-General v. Richmond, Perry's Or. Ca. 566, where the goods of a felon convicted in Bombay, were held to belong to the company, Govinda Laba's Case, 1 Strange Sup. Ct. of 4th. Forfeiture for felony is part of the prerogative of the Crown, and attaches to all persons within the jurisdiction of the Supreme Court. Bovill, Q. C., and Cave, for the respondents. 1st. The charters and Acts applying to India, all reserve the native rights and customs under their own established law. There is no native law in India by which property becomes forfeited on suicide. By both the Mahommedan and Hindu laws suicide is not a crime- it is at most a sin-and is not punishable by the civil tribunals, held nearly twenty years previously, and having been till now acquiesced in by the Government. 22 JULY, 1863. The opinion of the Committee was delivered by LORD KINGSDOWN, who said : It was impossible not to feel some surprise at the present demand, and if the Committee differed from the Court below, it would deserve much consideration whether a claim which was abandoned in 1844 by the acts of the law agents of the Government could now be entertained. There might possibly be circumstances Institutes of Menu, sect. 203, et seq. (ed. Sir W. with which they were unacquainted to account for the 2 Strange's Hindu Law, 259. In many cases suicide is held laudable by the native Sohawan's Case, 1 Nizam Adawlut Rep. 221; course taken by the Government, and they thought it better to dispose of the case on the merits. The only question was, at what time, and in what manner, did the forfeiture attached by the law of England to the personal property of persons committing suicide in that country become extended to a Hindu committing the same act in Calcutta? The answer to the contention of the appellant, that the law of felo de se was part of the criminal law Santumnah v. Tippunnah, 2 Strange's Hindu Law, carried out by the original settlers was this, that when 259; Rex. v. Chundichurn, Morton, Rep. 357. In these cases, abetting suicide, carnal knowledge of a female child, &c., were not punished according to English law. 2nd. The prerogative of the Crown when the sovereignty was established in India, did not of itself make suicide a felony, nor subject the offender to forfeiture. Forfeiture is part of the feudal law, and not part of the original Common Law, and is not such a part of the law as can be carried by settlers into any country irrespective of its conditions and circumstances, 1 Chalmers' Opinions, 195; 1 Reeves' History of Common Law, 9; Spelman on Tenures, 53; 1 Co. Litt. 41 a. Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them, and become members of their community, become also partakers of and subject to the same laws. But this was not the nature of the first settlement made in India; it was a settlement made by a few foreigners for the purpose of trade in a very populous and highly civilised country, under the government of a powerful Mahommedan ruler, with whose sovereignty the English Crown never attempted nor pretended to interfere for some centuries afterwards. If the settlement had been made in a Christian country of Europe, the settlers would have become subject to the laws of the country in which they settled. It was true that in India they retained their None of the English penal laws relating to Popery own laws for their own government, within the extend to India, D'Conto v. Da Costa, Morton, Rep. 356. 3rd. This law of forfeiture could only have been introduced into India by express enactment, but none of the Acts or charters refer to it, factories which they were permitted by the ruling powers of India to establish; but this was not on the ground of general international law, or because the Crown of England or the laws of England had any proper authority in India, but upon the principles See East India Charters, 1661, 1726, 1727, 1774; explained by Lord Stowell in a very celebrated and beautiful passage of his judgment in the case of The Indian Chief (3 Rob. 28). The laws and usages of eastern countries where Christianity did not prevail, were so at variance with all the principles, feelings, and habits of European Christians, that they had usually been allowed by the indulgence or weakness of the potentates of those countries to retain the use of their own laws, and their factories had for many purposes been treated as part of the territory of the sovereign from whose dominions they came. But the permission to use their own laws by European settlers did not extend those laws to |