necessary, to rely upon the evidence of possession at the earlier period of which we speak, and the evidence of ownership, which is prima facie, afforded with respect to that time by that possession. There are no grounds upon which the court can infer that Messrs. Fawcett, Preston and Company were owners at any earlier period than that which they say they were. There is evidence before the court of the building of the ship by the builders and the possession of the ship by the builders in their yard; and in that stage of the case evidence of what the builders admitted or said concerning that ship is surely, we submit, admissible. They are prima facie owners. It is not necessary, of course, that they should be so, because it is possible that the builders might have been under a contract which might have vested the property from time to time as the building proceeded; but it might not have been under such a contract. It is for those who affirm the existence of such a contract to prove it. In the mean time and until the evidence of such a contract and of such a vesting of title is given, it is not to be presumed or inferred against the evidence of possession; and an act by the builders themselves, so far as the evidence before your lordship goes with regard to a ship in their yard, and the intention and the purpose with which they were acting, is at this stage of the cause in itself material. I say, both with reference to their declaration and the purpose of their operations characterizing the res gesta of their yard, it is proper and right that this evidence should be admitted.

The QUEEN'S ADVOCATE. I am sure your lordship, in coming to a decision upon this very important question, will bear in mind the peculiar character of the proceedings in this case. You are aware that it is a proceeding in rem, and the object of the question is to ascertain what the character of the res is; and surely, my lord, that is a proper question to be put with reference to the builder at the time when he was in possession of the vessel and when he was giving orders for the superintending of its actual construction at the time. My lord, I can add nothing to that part of the argument which shows that the ownership of Messrs. Fawcett, Preston and Company does not exist further back than the time of the seizure. I can add nothing to the argument which my learned friend the solicitor general has used. But I submit to your lordship that to shut out this evidence before the prima facie ownership of Mr. Miller as the builder has been displaced by any evidence on the other side, would be to shut out one of the most material means of ascertaining what the real character of the res itself was. I therefore submit that your lordship should admit the evidence.

SIR HUGH CAIRNS. My learned friends who appear for the Crown have stated the grounds on which they support this question. I cannot help expressing some surprise at the extremely different manner in which they put forward their arguments, arguments which are perfectly antagonistic in their character. I will take, first, the attorney general. My learned friend, the attorney general, very fairly puts his argument in a way consistent with his opening, which those who followed him have not done. My learned friend the attorney general very fairly, I say, puts his argument in this way. He says there were certain gentlemen building a ship, acting, no doubt, merely as builders for others

Mr. ATTORNEY GENERAL. No.

SIR HUGH CAIRNS. My learned friend must not turn from his opening, for your lordship will remember what his opening was. He said, I will show you that Messrs. Miller were building that ship, but that the building of the ship was superintended and controlled by others, who were interfering and directing and giving orders, and the conclusion must be that they were the persons who were the organizers of the building of the ship for the purposes which they had in view. My learned friend, of course, cannot depart from the opening. Now, I want your lordship to consider simply the argument put forward. Is it now to be said, that if a builder is employed to build a ship, the extent of his agency being to do that which he is employed to do, and nothing more, if he chooses to say, from credulity or misapprehension or otherwise, in some gossiping conversation to any third party, while the ship is going on, "My notion is that that ship building will be employed in a particular way," that is to be evidence against those who ex hypotheci are employing him to build the ship? I think, if that is the argument now to be maintained, your lordship will not have much difficulty with it. I will now take the argument of my learned friend the solicitor general. The argument which he puts forward is upon a different ground. He says, supposing it was merely to identify the vessel; if it was merely to identify the vessel, you have a right to ascertain what the builder called her, or the manner in which he spoke of her. As to the way of identifying her, there is no doubt, first of all, with regard to identity, and there is no need to ask any question as to the identity of the ship. But, in the next place, I demur to the proposition. I say, if there were an issue as to the identity to be discussed, as to whether the vessel was or was not the identical one, a statement made by the builder in conversation could not affect a person who is admitted, for the purpose of this discussion, to be the real owner of the ship at the present time.

The next observation of my learned friend, the solicitor general, is this: He says, you find the ship in the possession, at a particular time, of Messrs. Miller. Possession is prima facie evidence of ownership, and the Crown are entitled to assume, for the pur

pose of letting in this evidence, that Mr. Miller was the owner at that time. In the first place, I deny that there is any presumption at all of ownership of the kind. There are certain rules of law with regard to the possession of landed property and freehold estate, saying that possession shall be prima facie evidence of ownership; but I say there is no presumption of this kind when you are dealing with the circumstance that a particular ship is in the hands of a builder, a builder by trade, whose trade is to build ships for other people; there is no presumption at all of ownership necessarily following from the possession-it may or it may not be-there is no presumption one way or the other. I ask you to see what is the consequence of the argument. What does my learned friend the Queen's advocate say? and there is no better way of putting it. He says, here is a proceeding by the Crown in rem, but the way in which it is tried is between the Crown and certain defendants-certain persons have come in and made an affidavit as to their being the owners of the vessel. And then I take the words of my learned friend the attorney general, who says that it must be admitted on this proceeding that Fawcett, Preston and Company are the owners of the vessel, as they allege they are.

Mr. ATTORNEY GENERAL. That is, at the time of the seizure.

SIR HUGH CAIRNS. That is, at the time of the seizure. Your lordship has very properly pointed out that it would have been improper and irrelevant for the affidavit to have stated anything more than the ownership at the time of the seizure. Now, it is admitted that Messrs. Fawcett, Preston and Company were, at the time of the seizure, the owners of the vessel. Now, take the case of some tobacco that is seized by the Crown as having been smuggled. A particular person comes in and defends, and is admitted to be the owner of the tobacco at the time of the seizure. Would anybody mean to say, for penalties or for criminal punishments, that you could give evidence by some former owner, or, I will say, holder. I will not use the word "owner," but, in order to make it more like the present case, I will say some former holder of the tobacco, some person in whose possession the tobacco was a year ago. If this person said this tobacco is tobacco which, according to my notion, will be smuggled hereafter, does anybody mean to say that the person admitted to be the owner at the time of the seizure is to be bound by a gossiping statement of that kind, of every person in whose hands that tobacco may happen to have been found for ten minutes since the time of its manufacture? I apprehend, my lord, that a more unsubstantial argument was never submitted to the court, and I hope your lordship will not accept it. LORD CHIEF BARON. It appears to me that I cannot receive the statement of the declarations or expressions of Mr. Miller, senior, for the purpose of producing any such effect as the object which is put forward. I think the question that has been raised about the rule of evidence in this case might be very shortly disposed of in this way: The present is a proceeding against one set of defendants. Now, neither Mr. Miller nor the sons of Mr. Miller are parties. Either, then, the evidence to be given would prove nothing against them or any one else; or if it would, it would be an admission by one man of another man's guilt, and I think that is not evidence that I can receive. But I do not think it right to leave the question merely in that dry and short way, but to notice the arguments that have been used on the part of the Crown. With respect to the ownership of the vessel, there can be no doubt that in one sense, while the ship was still in the hands of the ship-builder, and not yet perfect, the contract not being completed, in one sense it may be said to have been, and probably really was, the actual property of the builder. But inasmuch as the evidence before me now is that the defendants in this information claim that it was theirs at the time of seizure, I must take that prima facie to be true; and then I think it does not at all follow that they were not the persons who employed Messrs. Miller to build the ship; and though in one sense it might be said to be Messrs. Miller's property till they had parted with it, yet they were employed to construct the vessel on behalf of those who are now making the claim upon this information. Now, would a declaration of any sort, the tendency of which would be to produce an impression or to give a character to the vessel, would a declaration by the ship-builder at all be binding against the person who employed him to build the ship? "He is employed to build the ship; he is not employed to make any admissions or statements as to the nature of the ship; he is employed simply to build it. But now it might happen, and what was suggested in the course of the argument by the attorney general would be perfectly true. If some direction were given to build it in a particular fashion, and as the reason something were pointed out, that possibly might be evidence; but the officer who is now in the witness-box Ido not understand to have had anything to do with the building of the ship at all.

The QUEEN'S ADVOCATE. He is the watchman of the yard, my lord.. LORD CHIEF BARON. So he may be, but he had nothing to do with the actual construction of the vessel. Assuming, then, that the vessel was not the property of the Messrs. Miller, no declaration by them could at all affect their employers. We can put that certainly in a very intelligible instance. Supposing a housebreaker were to employ a shoemaker to make a pair of shoes to give facilities to his depredations by being perfectly noiseless, would the declaration of the shoemaker that he was constructing 2 A C-VOL. V

those shoes so as to make the least possible noise be evidence against the party employing him if he were charged with housebreaking? It would not. I think that is an illustration which to my mind clearly proves the present case, though it certainly has not the dignity which belongs to the present inquiry. It is my opinion, therefore, that I cannot receive this evidence. Before I finish my judgment upon the subject, I would wish to say that I extremely approve of the candor on the part of the counsel for the Crown in meeting the case fairly, and at once stating what is the object of the question and what is the conclusion which they propose to draw from it. My impression is, that, assuming that the answer would have some weight or effect in the present inquiry, I think it cannot be given in evidence against the present defendants. If the person who is supposed to make the statement made it from any knowledge, made it by any authority, and made it under circumstances that would give any weight to his opinion or to the expressions which he used, he might be called as a witness to say, "I gave it that character; I called it by such a name, because I knew by the intimations of A, B, C, D, or so on, that so and so was to take place, and therefore I formed that conclusion."

Mr. ATTORNEY GENERAL. My lord, I mention this now to avoid any misunderstanding on the part of your lordship. I shall feel it my duty to tender a bill of exceptions to your lordship upon the rejection of this evidence.

LORD CHIEF BARON. If you will allow me, I will speak to my brother Martin upon the subject. I assure you I believe I have decided according to the rule of evidence. I assure you I think I should very much endanger your proceedings if I were to admit the evidence.

Mr. ATTORNEY GENERAL. We have considered the matter, my lord, and of course we bow to your lordship's decision.

LORD CHIEF BARON. I think I should put in peril the whole proceedings if I were to admit the answer. If you wish me to do so, I will consult my brother Martin.

Mr. ATTORNEY GENERAL. I do not express any desire upon the subject. I only express the wish that it should not by any means surprise your lordship if, at the proper time, a bill of exceptions is tendered.

LORD CHIEF BARON. Can a bill of exceptions be tendered? I see under the new act that it may be so.

Mr. ATTORNEY GENERAL. It is your lordship's ruling, and of course we bow to it with every respect upon this matter of law.

QUEEN'S ADVOCATE (to the witness.) Do you know the firm of Fawcett, Preston and Company?—Yes.

Do you know any of the men whom they employ by sight?-No.

Do you know a person of the name of Hamilton, a Mr. Hamilton?—I have seen him. Have you ever seen him in Messrs. Miller's yard?-I have.

Have you ever seen him there during the course of the building of the vessel Alexandra?-Yes.

Have you seen him there more than once?—Yes.

Frequently?—Yes.

You say frequently?—Yes.

Can you tell at all how often?—Yes; once a week, or twice a week.

Did he take any notice of the Alexandra (I do not ask you what) when he came into the yard?-Yes, a little.

Did anybody come with him?—Yes.

On those occasions?-Yes.

Do you know the name of that gentleman?-Bulloch, I believe.

Did they ever look at the Alexandra together?—Yes.

More than once?-Yes.

Besides looking at her, did they do anything with respect to her?—No.

I do not ask you what; did they give any orders respecting her?-Not that I am aware of.

LORD CHIEF BARON. They did nothing but look at her; they gave no orders?—No. QUEEN'S ADVOCATE. Did you ever hear Mr. Hamilton speak to Mr. Miller upon the subject of the Alexandra? I do not ask what he said, but did you ever hear him?——Yes.

Did you hear him do that more than once?—Yes, once at least.

Did you ever hear this person of the name of Bulloch that you have mentionéd speak to Mr. Miller?-Yes.

Upon the subject of the Alexandra?—Yes..

Do you know a Mr. Mann ?-Yes, I do.

What firm does he belong to?-Messrs. Fawcett, Preston and Company.

Have you ever seen him on board the Alexandra?—I have.

When?-At different times.

While she was in course of construction ?-Yes.

Have you ever heard him give any orders respecting her?-No.

Did you say you had seen him more than once?-Yes.

How often do you think you have seen Mr. Miller on board the Alexandra ?—It might be three or four times.

That was while she was in course of building in the yard?—Yes.

When he came did he stay a short or long time when he was on board ?—Perhaps he would be an hour or half an hour.

On board the Alexandra?-To and fro.

Did you ever see him go on board any other ship when he was there?—I do not recollect it.

As to Mr. Bulloch and Mr. Hamilton, when they came to the yard, how did they get in ?-Through the yard gate.

Who let them in ?-Myself, for one.

LORD CHIEF BARON. You mean they got in exactly like other people ?—Yes, just so. QUEEN'S ADVOCATE. Did they have an order, or did they come in like anybody else?— They had an order from one of us.

Was that the order usually given to everybody, or was it a particular order ?—No. What was it ?—Generally an order for them to go through, that is all.

Was it the usual or was it a particular order?-Not a particular order.

LORD CHIEF BARON. Had the order anything to do with the Alexandra?—Not that I am aware of.

Was it merely to let them into the yard ?-To come into the yard.

The QUEEN'S ADVOCATE. When Mr. Mann came, did you see him go on board the Alexandra in company with Mr. Bulloch or Mr. Hamilton at any time?-No.

Cross-examined by Mr. KARSLAKE:

Let us understand what you were exactly; you were a watchman, were not you?-I was.

You had nothing on earth to do with building ships?-No.

I believe your duty was to stand at the gate ?—Yes.

And you continued that duty until you were discharged?—Yes.

When did Mr. Miller discharge you ?—I do not know.

You have not the least notion when that was?-No.

That you swear ?—Yes.

You are sure you were discharged?—Yes.

You tell those gentlemen that you have not the least notion when ?-No.
When, not why, is my question?-On the Thursday, perhaps it might be.
Last Thursday, was it ?-No.

When was it that you were discharged from Messrs. Miller's ?--I do not know.
When was it done?--When I was leaving the office.

How long ago?—That makes all the difference; perhaps six weeks.

After you left them what did you do?—Nothing at all.

And you have been doing nothing ever since ?-Yes, I have done something.
What have you been doing since?-Driving a car.

Driving a cab, is it?—Yes.

After you had left Messrs. Miller's, did you go and see a man called Barnes?—No. Did you see him?—I have seen him.

Did you take Barnes down to Mr. Maguire's ?—I did not.

Did you know that he went ?-No.

That you swear?—Yes.

You do?-Yes.

Did you take him to Cousins's, to a man called Cousins ?-No.

Did you see him there?-No.

Do you know Mr. Maguire ?—Yes.

What is he?-He is a detective.

Did you see Messrs. Duncan, Squarey and Company ?—I did not see them.

Did you go to the office?-No, not that I am aware of.

You are likely to know if you did go, you know?—Yes.

Did anybody from their office come to you?-Where is their office?

Never mind that. Did anybody from Messrs. Duncan and Squarey's office come to you?--I do not know anything about it.

How long after you had been at Mr. Miller's did you see Maguire?-A fortnight or three weeks, perhaps.

Mr. Miller has a considerable ship-building yard, has he not?—I believe so.

You are not prepared to swear that, are you?-No.

Although you were there many months?—Yes.

How many months were you there?-Twelve or fifteen months.

A good many people came to the yard on business ?-Yes.

A great many in the course of the day?—Yes; they do.

And your place was at the gate; not in the yard among the ships, was it?—No.

In the gate?-Generally.

You say you believe that Mr. Bulloch came ?-Yes.

What do you know of Mr. Bulloch? Did you ever see him? How do you know it was Mr. Bulloch, the person who came ?-He is a little man.

How do you know that it is Mr. Bulloch ?--I do not know that it is he.

It is easy to say Mr. Bulloch came there; how do you know it was Mr. Hamilton came ?-I saw him.

How do you know him?-I know him perfectly well.

How do you know him?-I know him.

Did you ever speak to him in your life?—Yes.

What did you say to him?-I do not know.

You let him through the gate and out again, did you?—Yes.

Is that what you know of him ?-Yes.

Is that all you know of him ?-Not exactly.

Did you ever speak to him except when letting him through the gate and out again? I have at other times.

When you went into the service as watchman, had you been in the police force ?- I had.

How long had you been out of the police force when you went as watchman ?-I cannot say.

Have you got the least notion ?-No.

Not the least ?-No.

Several years?—No.

Several months ?-Perhaps eighteen months, as near as I can state.

Re-examined by Mr. ATTORNEY GENERAL:

You mentioned a person of the name of Bulloch; was he called "Bulloch" in your hearing whenever he was spoken of?-I cannot say.

Did you ever hear him called by his name?-I do not know.

Did persons give any name when they entered the gate at your master's buildingyard? Yes.

Did you take their names ?-Sometimes they might and sometimes they might not. Sometimes the names were taken ?-Yes, some of them.

While you held your place, was any name given by this person whose name you say was Bulloch?

Mr. KARSLAKE. What do you mean by that?

Mr. ATTORNEY GENERAL. Given by Mr. Bulloch?

WITNESS. No.

Am I to understand that Mr. Bulloch never did to you give a name?-No.

Are you sure that he came with Mr. Hamilton ?--I have seen him with Mr. Hamilton. Can you describe the sort of man that you call Mr. Bulloch; what sort of man was he ?— A little man, with dark whiskers and beard.

LORD CHIEF BARON. A little man with short whiskers, is that what you said?—A little man, with dark whiskers.

Mr. ATTORNEY GENERAL. Was he dressed in any particular way that you can speak to-I do not know.

You cannot speak to his dress?-No.

The witness withdrew.

Mr. WILLIAM BARNES Sworn; examined by Mr LOCKE.

Do you live at No. 7 Longville street, Toxteth Park, Liverpool?—Yes.

Are you an engineer?-An engine-driver.

When did you go into Messrs. Miller's employment ?-It is turned four years since first I went into their employment.

Into their ship-building yard at Toxteth Dock?-Yes.

What employment had you there?—At driving Mr. Miller's engine.

When did you leave them?-It is nearly three months ago.

For what reason was it that you left them ?-I committed myself.

In what way did you commit yourself?-I got a sup of drink and went away from my work.

Do you recollect a steamship called the Oreto that was built in their yard ?—Yes. Was she built by Messrs. Miller?-Yes.

How long ago is that?-I think it would be about sixteen months since she went

away.

Was she launched about sixteen months ago?—Yes, I think so; I am not exactly sure. Do you recollect two gunboats called the Penguin and the Steady, being built in your yard?—Yes.

Were those built for the English government ?—Yes, I believe so.
Gunboats?--Yes; they were called gunboats.

The Penguin and the Steady?-Yes.

These were built by Messrs. Miller for the English government?—Yes.
About three years ago, was it?-Something about three years ago.