286

HOUSE OP LOEDS

[1897]

[HOUSE OF LORDS.]
H.L.(E.)

1897
April 8.

COBY BKOTHEBS AND COMPANY,) .

LIMITED
} APPELLANTS;
AND

THE OWNEBS OF THE TURKISH) ._

STEAMSHIP " M E C C A " . . . . } ^ ^ N D B N T S .
THE "MECCA."
Debtor and CreditorAppropriation of PaymentsBight to Appropriate
Intention of Creditor.
When a debtor pays money on account to his creditor and makes no
appropriation to particular items, the creditor has the right of appropriation
and may exercise the right up to the last moment, by action or otherwise ;
the -application of the money is governed, not by any rigid rule of law,
but by the intention of the creditor, expressed, implied or presumed.
The rule in Clayton's Case, (1816) 1 Mer. 585, does not apply to a case
where there is no account current between the parties, nor where from
an account rendered or other circumstances it appears that the creditor
intended, not to make any appropriation, but to reserve the right.
The decision of the Court of Appeal reversed.

THE'following statement of the facts is taken front the judg

ment of Lord Macnaghten.
In April, 1894, the appellants were the holders of four dis
honoured hills of exchange accepted by, or on behalf of, a.
Turkish company called the Hamidieh Steamship Company.
The bills had been given in payment for necessaries supplied.
in Egypt by the appellants, or their agents, to the steam
ships Mecca and Medina. The first bill, due April 7, was for
267Z. 14s. on account of the Medina ; the second, due April 26,
for 176?. 5s. on account of the Mecca. The other two both fell
due on the 27th of the same month. One was for 194Z. 8s.
on account of the Mecca, and one for 630Z. on account of
the Medina.
Money was coming to the Hamidieh Company, as owners of
the Mecca, from underwriters in England for salvage services
to the Medina, and it was arranged that Messrs. H. E. Moss

A. C.

AND PRIVY COUNCIL.

'

& Co., who were acting for the company in London, should
pay a share of the amount, when collected, to the appellants,
on an undertaking by them not to enforce their claim against
the two vessels for three months. The undertaking was given
by letter of J u n e 22.

287
H. L. (B.)
1897
c 0RY
BR T
2 n,fiS
v.
O W N E R S C\W

On August 15, 1894, the sum of 9001. was accordingly paid

to the appellants by H . E . Moss & Co. The appellants gave a
receipt for that sum expressed to be on account of moneys
owing them by the Hamidieh Company, adding, " t h e drafts
embodying this amount being in Egypt, we cannot now return
them, but herewith agree to take no further action in connec
tion therewith during the period agreed upon between us."
On August 22, 1894, a letter was written on behalf of the
appellants to the manager of the company acknowledging the
receipt of the 900/. The writer expressed a hope that it was
the company's intention to remit at once the balance due,
" namely," he says, " 401?. 2s. 9d., as per statement herewith
. . . . and thus obviate the necessity of our taking further
steps to secure it."
The statement which accompanied the letter of August 22,
was headed :
" August 22nd 1894.
" Messrs. The Hamidieh Company, Constantinople, in
a/c with Messrs. Cory Brothers & Co., Limited."
Then followed particulars of., the four bills with notarial
expenses added. The bills were entered in order of date, but
the Medina bill for 630?. came after the Mecca bill of the same
date. A charge of 11. 2s. 5d. for telegrams on August 22, and
an item " to interest to date at 5 per cent., 201. 6s. id.," which
was the last item in the account, brought the total up to
1301/. 2s. 9d.; then a line was drawn, and the sum of 900/. was
deducted from the 1301/. 2s. 9c/., thus shewing the balance of
401/. 2s. 9c/.
The period of grace having expired, the present action in
rem was brought against the Mecca, which was found at
Cardiff in the beginning of October, 1894. The action was
brought to recover the moneys due in respect of the necessaries
supplied to the Mecca, and an account was delivered appropriating
3

X 2

TURKISH
MEO^

~
"MECCA."

288

'

HOUSE OF LOEDS

[1897]

H. L. (B.) the 9001. to the Medina bills and legal expenses in connection
1897
with that vessel.
j^v
I n addition to other defences which failed, the respondents
BR T
!S
& CO'
P^ e a ^ e ^ t h ^ P a r * f t n e money paid to the plaintiffs by H . E .
.
Moss & Co. " was in respect of the whole amount sought to be
TmixraH recovered by the plaintiffs " in the action.
MK?
^ *^ e ^v^ ^ e defendants' counsel relied on the statement

of account of August 22,1894, as an appropriation by the plain"MBCUA." tiffs of the 900Z. towards the payment of the four bills in the
order in which they were entered in the account, and contended
that by such appropriation the Mecca bills had been paid.
Bruce J. held that the payment was, by law, appropriated to
the earlier items in the account, and gave judgment for the
defendants. The judgment was affirmed by the Court of
Appeal (Lord Bsher M.E., Kay and A. L . Smith L . J J . )
The plaintiffs brought the present appeal.
1896. March 2, 3. Sir Walter Phillimore (Buchiill Q.C.
and Gerard Ince with him) for the appellants. Where a debtor
pays money to his creditor without appropriation the creditor
has the right of appropriation and may defer the right till the
jury have to give their verdict. The presumption, that when
an account is made out by the creditor and no appropriation is
expressly made the law appropriates the payments to the
earliest items in point of date, is a mere presumption that the
creditor so intended it, and like other presumptions may be
rebutted. W h a t ground is there for supposing that the appel
lants intended to appropriate the 9001. to the Mecca items ?
Their interest clearly was to make no appropriation until they
knew to which vessel to appropriateuntil they could effect a
seizure. The statement of August 22 was not intended to act
as an appropriation or in any other way than as a memorandum.
Clayton's Case (1) has no application: there was no debit and
credit account, no entry of items as in a banker's books,
nothing to raise the presumption that the first payment in was
to be appropriated to the earliest debits. Moreover " earliest"
in the rule in Clayton's Case (1) means earliest in d a t e ; the
(.1) 1 Mer. 585, COS.

A. C.

AND PEIVY COUNCIL.

289

rule cannot apply to a case where (as here) two of the items H. L. (B.)
are of the same date. One must be entered before the other :
1897
it is a mere accident which is put first. The authorities do not
CORY
support the decision appealed from. The most important B B ^Q R S
v
points established by Clayton's Case (1) are the right of the
*

if

creditor to appropriate when the debtor pays money without

OWNERS OF

TURKISH
KTFAMRHTP

appropriating, and that the intention of the creditor is the "MECCA."

governing principle. Mere entries in the creditor's books do not
"^T
prove appropriation; it is not complete till communication to " MECCA."
the debtor: Simson v. Ingham. (2) The presumption that
payment is to be appropriated to the earliest items may be
rebutted by evidence of the real intention: City Discount Co.
v. McLean (3) ; Henniker v. Wigg. (4) The creditor may
appropriate at any time before the jury have to decide : Philpott v. Jones. (5) And see Lindley on Partnership, 5th ed.
p. 231.
Pyke Q.C. (A.E. Nelson and H. S. Q. Henriques with him)
for the respondents. The statement of account of August 22
was intended to operate, and did operate, as an appropriation
to the items in the order of their statement. If it was not
so intended and there was no appropriation by the creditor a
presumption of law arose to the same effect: Clayton's Case (1);
Hooper v. Keay. (6):^The principle applies even where there is
a change in the firm: Bodenham v. Purchas. (7) The same
principle was applied in Ashby v. James (8), so as to take a debt
out of the statute which would otherwise have been barred. I n
the case of In re Sherry (9) Lord Selborne says that when a
creditor enters payments into a particular account in his books
he prima facie appropriates to that account, and the effect is
that the payments are appropriated according to priority in the
entries. There is here no evidence of an intention contrary to
the prima facie presumption. The ignorance of the parties
that the effect of the account was an appropriation to the
(1)
(2)
(3)
(4)

1 Mer.
(1823)
(1874)
(1843)

585, 608.
(5) (1834) 2 A. & E. 41, 43.
2 B. & C. 65.
(6) (1875) 1 Q. B. D. 178.
L. E. 9 C. P. 692.
(7) (1818) 2 B. & Aid. 39.
4 Q. B. 792.
(8) (1843) 11 M. & W. 542.
(9) (1884) 25 Ch. D. 692, 702.

290

HOUSE OF LOBDS

[1897]

H. L. (E.) earlier items does not prevent the operation of the rule in
1897
Clayton's Case (1); Merriman v. Ward. (2) The rule in
COEY
BR

& T C<T

Clayton's

Case (1) therefore applies.

BuekniU Q.C. in reply.

0.

OWNERS OF
TURKISH
STEAMSHIP
A

The House took time for consideration.

J^ '
1897. April 8. L O B D H A L S B U E Y L.C. (after stating the
ac s :
"MEorA " f * ) M y Lords, it is said that the account dated August 22
brings the question within the authority of Clayton's Case (1),
and, in order to see whether this is so, it is necessary to con
sider what Clayton's Case (1) was, and the reasons given by
Sir William Grant, who decided it. That learned judge says :
where an account current is kept between parties as a banking
account, " there is no room for any other appropriation than
that which arises from the order in which the receipts and pay
ments take place and are carried into the account. Presumably,
it is the sum first paid in that is first drawn out. I t is the
first item on the debit side of the account that is discharged
or reduced by the first item on the credit side ; the appropria
tion is made by the very act of setting the two items against
each other."
This rule, so formulated, has been adopted in all the Courts
in Westminster Hall (see Field v. Carr (3)). I t is to be remem
bered, however, that on more than one occasion it has been
pointed out that this is not an invariable rule of law; but the
circumstances of a case may afford ground for inferring that
transactions of the parties were not so intended as to come
under this general rule, and if it were necessary to decide it
I confess I should have great doubt whether the transactions I
have described would not themselves negative the application
of such a rule. The letter of June 22 shews that the parties
intended that the right of arresting the ship should be preserved,
and that it was only to be suspended for the three months, and
I cannot think that, knowing perfectly well what they were
about, either of the parties could have supposed that the pay(1) 1 Mer. 585, 608.-

(2) (1860) U . & H. 371.

(3) 5 Bing. 13.

A. C.

AND PEIVT COUNCIL.

291

ment was to be so appropriated as to release the Mecca from H. L. (E.)

the liability to arrest; but, in truth, I think this case is not
1897
within the rule at all. This is not an account current; there is
c 0BT
no setting one item against another; credit is given for the BR 2 T ^ iRS
9001. at the end of all the items. They are all separate trans
.

OWNERS OF

actions, and, although on one piece of paper, seem to represent TUBKISH

only historically the transactions as they occurred. How the MECCA."
principle of Sir William Grant's decision can apply to two
~
transactions of identically the same date I cannot understand. " MECCA."
There is in respect of these items no earlier date: it is the mere un HaiBbmy
fact that one precedes the other in its place on the paper. I
think it would be extremely inconvenient in business to draw
inferences from the shape or order of accounts, and I think it
would be an altogether novel application of a principle which
has been established so long that I should feel great reluctance
to engraft a new application upon it.
I n this case it appears to me that the letter and account
negative any appropriation of the 9001. to any particular part of
the indebtedness, and, as the plaintiffs were entitled to appro
priate, I think they have done so by this action; and I there
fore move your Lordships that the judgment be reversed and
judgment be entered for the plaintiffs for 401Z. 2s. 9d.
L O E D H B E S O H B L L (after stating the facts (1)):My Lords, it
was held by the Courts below that the first three items in the
account dated August 22 must be treated as discharged by the
payment made, and that there was consequently nothing due in
respect of the Mecca at the time this action was commenced.
I t is contended on the part of the appellants that inasmuch
as the payment was not appropriated by the debtors it was open
to them to make any appropriation of it they pleased, and that
not having prior to bringing the action made any other appro
priation, they were entitled to treat the payment as made
on account of the Medina items, and thus to maintain the
action against the Mecca.

The case was treated in the Court of Appeal as governed by

(1) This judgment was in the absence of Lord Herschell read by Lord
Macnaghten.

292

HOUSE OP LOEDS

[1897]

H. L. (E.) Clayton's Case. (1) No appropriation of the payment having

1897
been made at the time, it was held that it must be attributed
^^Y
as a matter of law to the first three items of the account, and
BROTHERS t n a t ^ e items relating to the Mecca must therefore be treated
o.
as paid. I do not think the present case is governed by
TURKISH
Clayton's Case. (1) I t was there decided that where there is a
^IECCA"" current account between parties, and payments are made
~
without appropriation of them, they are to be attributed in
"MECCA." point of law to the earliest items in the account. I n the
Lom Herecheii. present case, at the time the payment was made no account
had been delivered by the appellants to the respondents. The
debts in respect of the two vessels arose from transactions
which were entirely distinct; they had never been brought
into a common account. An account comprising all the items
was for the first time made out and transmitted by the appel
lants to the respondents after payment was made. I n the
account thus made out oredit was given for the 900Z. which
had been received. At the time of the payment, therefore,
there was no account to the items of which the payment could
by operation of law be appropriated. The question to be
determined is what was the effect of the transmission to the
respondent's of the statement of account of August 22. I t is
clear that if the appellants had merely entered in their own
books an account such as was transmitted, it would not have
amounted to any appropriation by them, and they would still
have been at liberty to appropriate the payment as they pleased.
I t is equally clear, however, that when once they had made an
appropriation and communicated it to their debtors, they would
have no right to appropriate it otherwise. W h a t , then, was
the effect of bringing the items of debt into a single account,
and transmitting it to their debtors in the manner they did ?
I have had some doubt whether it might not be regarded as
indicating to the debtors an appropriation of the sum paid to
the earlier items in the order in which they appear in the
account. B u t upon a consideration of all the circumstances,
including the correspondence between the parties, I have come
to the conclusion that the appellants did not intend to make
(1) 1 Mer. 585, 608.

A. C.

AND PEIVY COUNCIL.

293

any such appropriation, and that the respondents were n o t ' H. L. (E.)
entitled so to regard it.
1897
(after stating the facts given above) :
My Lords, I have some difficulty in following the reasoning of the
L O E D MACNAGHTBN

CORY
BROTHERS

v.
OwNKRH OB*

learned judges in the Court of Appeal. There seems to be an

error in the shorthand notes, because the Master of the Eolls is
made to say that the account came in the first instance from the

TURKISH

^^Q
THE

company. But, if I understand his meaning aright, he does say " MECCA."
that the account passing between the parties did not of itself
operate as an appropriation, or afford any indication of an
intention to appropriate i t : it was as if each party in turn had
said, " Here is the account. I do not appropriate." Kay L . J .
treats the case as governed by Clayton's Case (1), to which the
Master of the Eolls also refers. " I cannot see any reason,"
Kay L . J . says, " why Clayton's Case (1) does not apply to the
facts before us." Later on, after stating the facts as they
appeared to him, " That is," he observes, " the very case to
which Clayton's Case (1) would apply." A. L . Smith L . J .
seems to take the same view as the Master of the Eolls.
" Neither party," he says, " appropriated the payments to any
thing." Then he adds: " t h e 9001. by the law goes to the
earlier items." If what occurred in August did not amount to
an appropriation, it is difficult to see why the appellants were
not at liberty to make their election in October, when they
found the Mecca at Cardiff. And certainly I am at a loss to
understand what bearing the doctrine of Clayton's Case (1) can
have upon the question.
Now, my Lords, there can be no doubt what the law of
England is on this subject. W h e n a debtor is making a
payment to his creditor he may appropriate the money as he
pleases, and the creditor must apply it accordingly. If the
debtor does not make any appropriation at the time when he
makes the payment the right of application devolves on the
creditor. I n 1816, when Clayton's Case (1) was decided, there
seems to have been authority for saying that the creditor was
bound to make his election at once according to the rule of the
(1) 1 Mer. 585, 608.

294

HOUSE OF LOKDS

[1897]

H. L. (E.) civil law, or a t a n y rate, w i t h i n a reasonable time, w h a t e v e r

1897
that expression in such a connection may be taken to mean.
0^Y
But it has long been held and it is now quite settled that the
cre
BH
&'COEB
^ i * o r h a s the right of election " up to the very last moment,"
.
and he is not bound to declare his election in express terms.
\ }\FTCTTP ftfl OTT

TBBKIBH
"'MECO

"MECCA."

Loid

H e may declare it by bringing an action or in any other way

^ a t m a k e s his meaning and intention plain. Where the
election is with the creditor, it is always his intention expressed
or implied or presumed, and not any rigid rule of law that
governs the application of the money. The presumed intention

Macnagbteu.

of the creditor may no doubt be gathered from a statement of

account, or anything else which indicates an intention one way
or the other and is communicated to the debtor, provided there
are no circumstances pointing in an opposite direction. B u t
so long as the election rests with the creditor, and he has not
determined his choice, there is no room, as it seems to me, for
the application of rules of law such as the rule of the civil law,
reasonable as it is, that if the debts are equal the payment
received is to be attributed to the debt first contracted. Now,
Clayton's Case (1) was this. Clayton had a current account
with a firm of bankers. One of the firm died. Some time
afterwards the bank failed. The customer's account was kept
from first to last as one unbroken account. At the date of the
death of the deceased partner the customer had a large balance
to his credit. Afterwards he drew out sums which in the
aggregate exceeded that balance. On the other hand, moneys
were paid in from time to time to his credit, and at the date of
the failure the balance in his favour was rather larger than it
was at the date of the death. H e claimed to attribute his
drawings after the death to subsequent payments in. B u t
Sir W . Grant said, No. H e distinguished the case from
authorities which had been cited in favour of the claimant by
saying : " They were all cases of distinct insulated debts
between which a plain line of separation could be drawn; but
this is the case of a banking account where all the sums paid
in form one blended fund, parts of which have no longer any
distinct existence ; neither banker nor customer ever thinks of
(1) 1 Mer. 585, 608.

A. C.

AND PEIVY COUNCIL.

295

saying this draft is to be placed to the account of the 5001. paid H. L. (E.)
in on Monday, and this other to the account of the 5001. paid
1897
in on Tuesday. There is a fund of 1000Z. to draw upon, and
Qonr
that is enough. I n such a case there is no room for any other
^^of"
appropriation than that which arises from the order in which

OWNBBS OP

the receipts and payments take place and are carried into the TUBKIBH
account. Presumably it is the sum first paid in that is first MBOOA."
drawn out. I t is the first item on the debit side of the account
7j^
that is discharged or reduced by the first item on the credit " MECCA."
side. The appropriation
is made by the very act of setting the
Lorf
r r
r
.

two items against each other. Upon that principle all accounts
current are settled, and particularly cash accounts."
The facts of the present case are very different. There is no
current account between the parties here. There was no
account between them at all until the bills were dishonoured.
The debts were distinct. B u t it is, I think, important to
observe that even in cases prima facie falling within the doctrine
of Clayton's Case (1) the account between the parties, however
it may be kept and rendered, is not conclusive on the question
of appropriation. I n a case in the Exchequer Chamber in 1874
(City Discount Co. v. McLean (2)), where there was a current
and unbroken account between the parties, Clayton's Case (1)
was pressed upon the Court. " I quite agree," said Bramwell B., " with the principle of the cases cited such as Clayton's
Case (1) and Bodenham v. Purchas (3), and I think we ought
to follow them when applicable. . . . But we must decide every
case according to its own circumstances." " The true rule,"
added Blackburn J., " is that laid down in Henniherv. Wigg (4),
which is that accounts rendered are evidence of the appropriation
of payments to the earlier items, but that may be rebutted by
evidence to the contrary." The rule in Clayton's Case (1) was
very much considered in Hallett's Case in 1880 (5) by the Court
of Appeal, consisting of Sir George Jessel M.E. and Baggallay
and Thesiger L . J J . " I t is a very convenient rule," said the
Master of the Bolls, " and I have nothing to say against it
(1) 1 Mer. 585, 608.
(3) 2 B. & Aid. 39.
(2) L. E. 9 C. P. 692.
(4) 4 Q. B. 792.
(5) 13 Ch. D. at pp. 728, 738.

Macnagbten.

296

HOUSE OF LORDS

[1897]

H. L. (B.) unless there is evidence either of agreement to the contrary or

(897
of circumstances from which a contrary intention must be
CORY
presumed, and then of course that which is a mere presumption
B >

& (X) ERS

OWNERS OF

TURKISH
"MECCA."

~^~
" MECCA."
Lord;
Macnaghten.

^ ^ a w i v e s w a y * those other considerations." " Clayton's

Case " (1), observed Baggallay L.J., " was decided upon the
.

& 6

*;

principle that m the absence of any expressed intention to the

contrary or of special circumstances from which such an intention could be implied, the appropriation of drawings out to the
payments in, as adopted in that case, represented what must be
presumed to have been the intention of the parties concerned;
.

and so viewed the decision is quite consistent with the like

presumption being rebutted or modified in another case in which
the circumstances were such as to negative any intention to
make such an appropriation of the drawings out to the
payments in."
Now, if the rule in Clayton's Case (1), which certainly at one
time was considered to be a rule of such force and stringency as
to interfere even with the equity of following trust moneys into
the bank account of a fraudulent trustee, is to be accepted with
this qualification, and if an account stated between the parties
is only evidence of appropriation of payments, it seems to me
that, in order to determine the question at issue on this appeal,
it is necessary to consider the circumstances of the .case more
closely than they were considered in the Courts below. If you
look at the position of the parties when the payment of the
9001. was made, and the purpose for which the statement of
account of August 22,1894, was sent, and examine the terms of
the account itself, and the letter which accompanied it, it is, I
think, impossible to suppose that the appellants could have
intended to appropriate the 9001. in a manner inconsistent with
the rights which they asserted when they arrested the Mecca.
I t is, I think, equally impossible to suppose that they could
have intended to renounce or waive their privilege of election.
I t is quite clear that when the bills were dishonoured the
appellants were alive to their rights. They intimated very
distinctly that they were prepared to seize both the vessels
which were then lying at Suez. I t was this threat that brought
(1) 1 Mer. 585, 608.

A. C.

AND PRIVY COUNCIL.

297

the company to terms. F o r some time the appellants could H. L. (E.)

not obtain any satisfactory assurance from H . E . Moss & Co.
1897
The Hamidieh Company put them off with empty promises.
oOBY
But at last the company got frightened, and on June 15, 1894, BI^THEBB
they wrote to H . E . Moss & Co., referring to the steamers

O W N E R S OF

and saying, " As Messrs. Cory Brothers & Co. threaten to take
proceedings against both the above-named steamers if they will
not promptly receive from us a satisfactory assurance that they
will soon be paid, we beg you will not delay to give them such
an assurance, otherwise the results will be very detrimental
.

to the Hamidieh Company and to our Mr. Constantme

A. Theodoridi." So on June 22 H . E . Moss & Co. gave the
required assurance, on an undertaking by the appellants that
they would not, for three months from that date, arrest any
of the property of the Hamidieh Company, either in this
country or abroad, unless meantime the amounts to be received
from the salvage claims on underwriters should fall short of the
amounts of the bills held by them. Now, after that I rather
doubt whether it would have been right for the company to try
and steal a march upon their creditors by attempting to appro
priate the money so as to release any part of their property.
However that may be, the receipt which was given on August 15
seems to shew that the intention of the parties was that at the
expiration of the period of grace the appellants should be
remitted to their original rights, giving credit on general account
for any sums received. Again, it seems to me that the letter of
August 22 conveyed a distinct intimation that the appellants
would exercise their rights unless the balance were paid. I t
was for the purpose of shewing what the balance was, and for
no other purpose whatever, that the account was made up. I t
is impossible to suppose that the appellants, while looking
forward to exercising their rights in case of default, would have
made up an account with the intention of releasing one of the
two vessels when they could not tell upon which of the two
they might be able to lay their hands. Then it seems to me
that the very frame of the account affords some indication that
it was not intended to apply the payment in discharge of the
first three bills, for the interest on those bills is the very last

TURKISH
"MEOOA^

~z
" MEOOA."
Lord
Macnaghten.

298

HOUSE OF LOEDS

H. L. (E.) item in the account.

1897
CORY
B

TcHoERS
v-

O W N E R S OF

TUEKISH
" MEOOA!"

-^
"MEOOA."

Lord

[1897]

If the intention had been to discharge

bills w h i c h carried interest, it surely would h a v e been i n t e n d e d

a

* * n e same time to discharge the accrued interest on which no

i 1 1 ^ 6 8 * would be payable. If the company thought that the
appellants intended to discharge the Mecca bills, why did they
,

not, when they received ;the account, ask for their return ? I
cannot help thinking that if they had made such a request they
would have received a very indignant reply. The result might
have been the return of the cheque and* immediate seizure of
the two vessels, (which would hardly have answered the

Mocnagbten.

company s purpose.
I n the result I am of opinion that it was competent for the
appellants to arrest the Mecca in October, 1894, and at that
time to appropriate the money which they had received from
H . E . Moss & Co. to the Medina bills.
I think that the appeal ought to be allowed.
LOED MOBRIS.

My Lords, I am of the same opinion.

Order of the Court of Appeal reversed with costs

here and below; judgment to be entered for the
appellants for 401Z. 2s. 9d.; cause remitted to
the Admiralty
Division.
Lords' Journals, April 8, 1897.
Solicitors for appellants : Ince, Colt & Ince.
Solicitors for respondents : Lowless & Co.