The Irish Jurist

Ales, so positively sworn to as to the actuality of and by the confession itself being made immediately the danger at the time. That he should have after the success of the stratagem, and to a party refused to produce Ales seemed not to be surprised disinterested in the matter one way or other-cau at. He had, as sworn to by the appellants' agent, leave no doubt whatever that, in place of this towage gone over to them, and given a circumstantial having been an act of salvage rendered to the account of the smack's danger and of the steam- smack, it was an act of deception practised upon tug's salvage; but he was offered to the app llants, the steam-tug-a deception for which, or on account and they were called upon to examine him. This of which, no responsibility can in any way attach offer the appellants declined, although they had his to the owner of the smack. For all those reasons, testimony in their favour on the written paper; then, I dismiss this appeal, affirming thereby the and his oral testimony now was the only evidence decision of the court below. One question only required to set up their own witnesses, who had now remains to be disposed of—namely, the costs deposed to the same state of facts, above and of the proceedings in this court. The general rule beyond all exception, and to overcome the pre- of law is, that costs should follow the decree. Dr. sumptive and inferential evidence of the respondent. Hayes, on the part of the respondent, urging the A very material witness was, however, at this adoption of that rule in the present case, has juncture, produced by the respondent, Johnston, referred to that of the Greyhound, tried in Novem one of the two boatmen whom the master of the ber last, in which it was deviated from, observing, steam-tug had put aboard the smack. This witness that although peculiar circumstances may have gave the following 'remarkable testimony:-Taat, justified that deviation, none such existed in the after the snack was taken in tow, Ales said to him, present instance. In the case of the Greyhound, "It was all untrue what he had said about the the question was, were the salvage services rendered smack having been in a sinking state; that, on the in pursuance of an agreement, or not? The court contrary, she was in no danger whatever. But that upheld the agreement, and dismissed the salvors, he, being frightened at being left alone in a strange but gave no costs, because that, on the evidence, lough, on a stormy night, in the small smack, was it appeared that the acts of both the parties, with determined to get back to Belfast; and that, for regard to it, give rise to doubt-neither the one the purpose of attracting the notice of the steam- nor the other of them being explicit, or free froin tug, and to get her to tow the smack there, he had what was equivocal. The court distinctly stated hoisted the ship's colours as high as the halyards, this in its judgment, and also referred to the cases which were short, would allow, and which was not of the True Blue, 2 William Rob. 79; and the as high as the masthead, and told the steam-tug Repulse, 2 William Rob. 396; in both of which that she must tow him into a place of safety, as she the Admiralty Court of England acted similarly, was sinking. That when Johnston told him he or rather went farther, as in both of these cases would get three months for so doing, Ales replied, the agreement had been in writing, and admittedly he did not care if he got six months, as if the tug so. In the case now before me, there are again had not come to him he would have run the smack peculiar circumstances, but circumstances leading ashore, and that the master would be glad to see to a very opposite conclusion, indeed. From the the smack back in Belfast, as the towage would evidence of Johnston, and of Alexander, the com not cost 30s. or £2." Johnson added his own pany's agent at Belfast, there is not the least doubt opinion, that the smack was in no danger of sink of two things: first, that four days before they ing whitever; that the pump sucked after four or brought the summons before the magistrate, the five minutes, and that there was no mark of water appellants were ma le fully aware of the device by on the floor of the forecastle. This evidence which which Ales had obtained the assistance of their tug, if true, would go to the very foundation of the and that there had not been any danger whatever appellant's case, it now came out had been, for some likely to occur to the smack; secondly, that they time in the possession of the appellants themselves believed fully that that device had been played upon -for Johnson swore that he had, in three or fuor them, as, neither in Belfast, nor yet in this court, days after the occurence, told their agent the whole did they attempt to make Ales their witness, story, and that they had taken it down in writing. although having all through his (Ales's) written Ales himself was now produced, the advocates at declaration to the contrary. Was it becoming, both sides yielding, at the suggestion of the court, then, in a great company, with the full knowledge to the propriety of the step, as the ends of justice that their tug had been tricked into the per required it. They consented that he should be exa-formance of this small service by an unauthorised mined, and by his evidence, in all respects, confirmed that given by Johnson, and was a full and nnhesitating disclosure, that he had done and said, as the appellants' witnesses had sworn, merely as a stratagem to get back to Belfast, and that the smack had been in no danger whatever. This evidence, then-borne out, as it is, by that as to the sound state of the smack-the absence of water in her hold-her easy draught when being towed

boy, to apply to the collector at Belfast to detain the respondent's smack, when on the very point of his sailing with his cargo to the destined market, as in a claim of salvage, and to harass him, upon false pretence, then before the local tribunal, and now before the High Court of Admiralty of the country. The court avails itself of its power to mark its own sense of those proceedings, and accordingly awards the respondent his full costs.

END OF VOLUME X.

DIGEST OF THE CASES

DECIDED IN THE

COURTS OF LAW AND EQUITY

In Ireland,

AS REPORTED IN THE TENTH VOLUME (3 JURIST, N.S.) OF THE IRISH JURIST AND IN THE SIXTH VOLUMES OF THE IRISH COMMON

LAW AND CHANCERY REPORTS.

JOHN BLACKHAM, ESQ., BARRISTER-AT-LAW.

DUBLIN:

EDWARD J. MILLIKEN, 15, COLLEGE-GREEN,

at.

Ales, so positively sworn to as to the actuality of and by the confession itself being made immediately the danger at the time. That he should have after the success of the stratagem, and to a party refused to produce Ales seemed not to be surprised disinterested in the matter one way or other-can He had, as sworn to by the appellants' agent, leave no doubt whatever that, in place of this towage gone over to them, and given a circumstantial having been an act of salvage rendered to the account of the smack's danger and of the steam- smack, it was an act of deception practised upon tug's salvage; but he was offered to the appellauts, the steam-tug—a deception for which, or on account and they were called upon to examine him. This of which, no responsibility can in any way attach offer the appellants declined, although they had his to the owner of the smack. For all those reasons, testimony in their favour on the written paper; then, I dismiss this appeal, affirming thereby the and his oral testimony now was the only evidence decision of the court below. One question only required to set up their own witnesses, who had now remains to be disposed of—namely, the costs deposed to the same state of facts, above and of the proceedings in this court. The general rule beyond all exception, and to overcome the pre- of law is, that costs should follow the decree. Dr. sumptive and inferential evidence of the respondent. Hayes, on the part of the respondent, urging the A very material witness was, however, at this adoption of that rule in the present case, bas juncture, produced by the respondent, Johnston, referred to that of the Greyhound, tried in Novem one of the two boatmen whom the master of the ber last, in which it was deviated from, observing, steam-tug had put aboard the smack. This witness that although peculiar circumstances may have gave the following 'remarkable testimony-Taat, justified that deviation, none such existed in the after the smack was taken in tow, Ales said to him, present instance. In the case of the Greyhound, "It was all untrue what he had said about the the question was, were the salvage services rendered smack having been in a sinking state; that, on the in pursuance of an agreement, or not? The court contrary, she was in no danger whatever. But that upheld the agreement, and dismissed the salvors, he, being frightened at being left alone in a strange but gave no costs, because that, on the evidence, lough, on a stormy night, in the small smack, was it appeared that the acts of both the parties, with determined to get back to Belfast; and that, for regard to it, give rise to doubt-neither the one the purpose of attracting the notice of the steam- nor the other of them being explicit, or free from tug, and to get her to tow the smack there, he had what was equivocal. The court distinctly stated hoisted the ship's colours as high as the halyards, this in its judgment, and also referred to the cases which were short, would allow, and which was not of the True Blue, 2 William Rob. 79; and the as high as the masthead, and told the steam-tug Repulse, 2 William Rob. 396; in both of which that she must tow him into a place of safety, as she the Admiralty Court of England acted similarly, was sinking. That when Johnston told him he or rather went farther, as in both of these cases would get three months for so doing, Ales replied, the agreement had been in writing, and admittedly he did not care if he got six months, as if the tug so. In the case now before me, there are again had not come to him he would have run the smack peculiar circumstances, but circumstances leading ashore, and that the master would be glad to see to a very opposite conclusion, indeed. From the the smack back in Belfast, as the towage would evidence of Johnston, and of Alexander, the com not cost 30s. or £2." Johnson added his own pany's agent at Belfast, there is not the least doubt opinion, that the smack was in no danger of sink of two things: first, that four days before they ing whatever; that the pump sucked after four or brought the summons before the magistrate, the five minutes, and that there was no mark of water appellants were male fully aware of the device by on the floor of the forecastle. This evidence which which Ales had obtained the assistance of their tug, if true, would go to the very foundation of the and that there had not been any danger whatever appellant's case, it now came out had been, for some likely to occur to the smack; secondly, that they time in the possession of the appellants themselves believed fully that that device had been played upon --for Johnson swore that he had, in three or fuor them, as, neither in Belfast, nor yet in this court, days after the occurence, told their agent the whole did they attempt to make Ales their witness, story, and that they had taken it down in writing. although having all through his (Ales's) written Ales himself was now produced, the advocates at declaration to the contrary. Was it becoming, both sides yielding, at the suggestion of the court, then, in a great company, with the full knowledge to the propriety of the step, as the ends of justice that their tug had been tricked into the per required it. They consented that he should be exa-formance of this small service by an unauthorised mined, and by his evidence, in all respects, confirmed that given by Johnson, and was a full and nnhesitating disclosure, that he had done and said, as the appellants' witnesses had sworn, merely as a stratagem to get back to Belfast, and that the smack had been in no danger whatever. This evidence, then-borne out, as it is, by that as to the sound state of the smack-the absence of water in her hold-her easy draught when being towed

boy, to apply to the collector at Belfast to detain the respondent's smack, when on the very point of his sailing with his cargo to the destined market, as in a claim of salvage, and to harass him, upon a false pretence, then before the local tribunal, and now before the High Court of Admiralty of the country. The court avails itself of its power mark its own sense of those proceedings, and accordingly awards the respondent his full costs.