more to be done. Under that relation then existing between the plaintiff and the defendant, the contract in this case was entered into between them, the terms of which it is unnecessary for me to discuss, as I entirely agree with the construction put upon the limitation of the defendant's liability therein by my brother Bramwell. The intention of the parties may fairly, I think, be supposed to have been that the defendant should be responsible for breakages only, and only to the limited extent mentioned in the contract. With respect to the liability of carriers of goods under other circumstances, I abstain from expressing any opinion. Our judgment in this case should, I think, be for the defendant.

BRAMWELL, B.-My brother Amphlett, before he left the court just now, desired me to say that he fully concurs in our judgment.

Rule absolute (a). Attorneys for the plaintiff, Wedlake and Letts, for J. and R. Edmonds, Plymouth. Attorney for the defendant, G. Davis.

Tuesday, June 8.

HAYWOOD AND ANOTHER v. SAINT.

The Mayor's Court of London Procedure Act 1857 (20 & 21 Vict. c. clvii., s. 48)—Judgment obtained in action in Mayor's Court-Removing same into Superior Court-Execution issued out of Superior Court-Increased costs thereby-Right of plaintiff to remove judgment—Practice-Procedure.

Under sect. 48 of The Mayor's Court of London Procedure Act 1857 (20 & 21 Vict. c. clvii., local and personal) a plaintiff who has recovered a judgment, in an action in the Mayor's Court, against a defendant having goods within the jurisdiction of that court, is entitled, as of right, to remove such judgment into one of the Superior Courts, and to issue execution thereout against the goods of the defendant; and such execution will not be set aside as an abuse of the process of the court, notwithstanding that execution could have been issued out of the Mayor's Court with as full effect as out of the Superior Court, and that the only object of removing the judgment into the Superior Court may have been to obtain the increased costs of such execution.

So held by the Court of Exchequer (Bramwell, Cleasby and Amphlett, BB.).

In this case the plaintiffs had brought the action against the defendant, originally in the Mayor's Court of London, and judgment was signed in such action in that court on the 26th May 1875, for 51. 13s., the amount of the debt, and 51. 78. 2d. for costs of the action. That judgment, however, was on the 28th May, before execution had been issued out, removed from the Mayor's Court for the purpose of execution, into the Court of Exchequer, under sect. 48 of the Mayor's Court of London Procedure Act 1857 (20 & 21 Vict. c. clvii., local and personal), which enacts that:

In every case where final judgment shall have been obtained in the Mayor's Court, and also in every case where any rule or order shall have been made by the court, whereby any sum of money, or any costs, charges or expenses, shall be payable to any person, any writ of

(a) The plaintiff has appealed from this decision, and the case now stands for hearing in the court of error.

[Ex.

execution upon such judgment, or any rule or order so made by the court, shall be sealed by the sealer of writs of any of the Superior Courts, upon a præcipe of the same being lodged with him, together with an affidavit verifying the jugdment or order, and that the same remain unreversed and unsatisfied, and immediately thereupon such writ of execution, and such judgment, rule, or order, shall become and be of the same force, charge and effect, as a writ of execution or judgment recovered in, or a rule or order made by such Superior Court, and all the reasonable costs and charges attendant upon such sealing, shall be recovered in like manner as if the same were part of such judgment rule or order.

Execution was accordingly issued out of the Court of Exchequer, on the same last-mentioned day (28th May), and on the 29th May the Sheriff of London thereunder levied on the defendant's goods on his premises, No. 120, Bishopsgatestreet Within, in the City of London.

Before execution was issued, and at the time of the levy, the defendant resided and carried on his business within the City of London, and within the jurisdiction of the Mayor's Court.

Kemp, on the part of the defendant now moved on affidavit setting forth the above facts, for a rule nisi calling on the plaintiffs to show cause why the execution, issued out of this court and levied on the defendant's goods as above mentioned, should not be set aside on the ground that it was an abuse of the process of the court. [BRAMWELL, B. -Have you been to chambers?] No. It is contended on behalf of the defendant that the only object of the proceedings being removed out of the Mayor's Court into this court was to increase the costs, and the defendant in his affidavit swears that he has been advised, and believes that it was done with that sole intention. The defendant's property and goods are within the jurisdiction of the Mayor's Court, and execution against them could have been issued out of the Mayor's Court with as full effect and operation as out of this court, and no advantage to the plaintiffs has been gained by what they have done, except that of increasing the costs of execution, from a sum of about 13s. 6d., the costs of an execution in the Mayor's Court, to between 41. and 51. the costs of the execution issued out of this court. The object of sect. 48, under which this has been done, was to enable a judgment to be moved out of the Mayor's Court into the Superior Court, when a defendant had goods out of the jurisdiction, and so to enable the plaintiff to go against the goods and property of the defendant which he could not otherwise get at. But here that necessity did not exist, as the defendant's goods which have been seized in the present case were all within the jurisdiction of the Mayor's Court, and might have been taken in execution by a writ out of that court. This, he submitted, was not within the intention of the Act, and was an entirely unnecessary and vexatious proceeding, and an abuse of the process of the court, and had been taken solely for the sake of increasing the

costs.

BRAMWELL, B.-I am afraid, Mr. Kemp, that there must be no rule in this case. The judgment is moved out of the Mayor's Court into this court as of right, under the 48th section of the Act to which we have been referred. I have frequently had cases before me at chambers where the proceedings of an inferior court have been brought into the Superior Court for the mere purpose, apparently, of increasing the costs. But a plaintiff has a right, if he thinks fit, so to move them, and it gives him the right and the power to levy

An assessment committee made a poor rate upon the plaintiff's property in excess of the amount which the plaintiffs considered to be the rateable value. The plaintiffs gave notice of appeal. Both parties then agreed to refer the matter to arbitration, and to be bound by the decision of the umpire. The umpire did not make his award for three years, during which time the plaintiffs were compulsorily obliged to pay the poor rate. The umpire made his award and declared that the plaintiffs were overrated and that the defendants should repay to them the sums in excess which they had been obliged to pay under compulsion. The defendants refused to consider the award as valid, and when the next rate was made distrained upon the plaintiff company under a magistrate's warrant. The company replevied, and afterwards moved that the replevin bond might be delivered up. Held, that the proceedings of the defendants were against good faith, they having agreed to be bound by the award, and that the replevin bond might be given up at the plaintiffs' instance. London and North Western Railway v. Bedford (17 Q. B. 978), followed.

RULE calling upon the defendants to show cause why all proceedings should not be stayed, and why a replevin bond should not be delivered up to the plaintiffs or their attorneys. The facts were as follow:

The

The Leicester Waterworks Company having completed a reservoir and mains at Barrow-uponSoar, the overseers of the parishes in which the company had erected works, forwarded to the assessment committee a supplemental valuation list in which the company was assessed for poor law purposes at certain rates, which were considered by the company to be too high. company having given notice of appeal, the case came on for hearing on the 21st Nov. 1871, when it was resolved to employ a competent valuer to make a valuation of the works and mains. On the 12th March 1872, the waterworks company not being able to come to a satisfactory arrangement with the assessment committee, gave notice of appeal to the quarter sessions. The appeals were accordingly duly entered for hearing at the next general quarter sessions, and were respited. A meeting was afterwards held on the 8th June 1872 at the offices of the company to prevent, if possible, further litigation, and it was then resolved that all questions in relation to the rating of the

company's works and mains passing through the several parishes of the union, should be submitted to two arbitrators with a view to their adjusting the matters in dispute, and, in case of their failing so to do, with power to appoint an umpire whose decision should be final. On the 29th June 1872, an agreement of reference was accordingly entered into between the company and the assessment committee on behalf of the guardians, granting power to the arbitrators to call in an umpire in case of their disagreement, whose decision should be final; and it was also therein agreed that the parties thereto would severally observe, fulfil, perform, and keep the certificate or award of the arbitrators or umpire of and concerning the premises and matters referred to therein, and also it was agreed that the submission to arbitration should not be revocable by either party, and that it should be made a rule of court. The arbitrators accordingly entered upon the reference, and being unable to agree called in an umpire.

The umpire did not make his award until the 31st Jan. 1874, during which time the appeals were respited from session to session. In the meantime the company had invariably refused to pay the rates, and on each occasion the overseers were compelled to summon the company, when, an order having been made by the justices, the company paid the poor rate and took a special receipt.

By the award of the umpire dated the 31st Jan. 1874, he decided that the value of the premises of the company as then standing in the rate books should be reduced, and he gave directions that the rate books of the parishes should; be altered accordingly to make the rateable value correspond with the amounts awarded; and also he further determined that the company should be repaid by the overseers out of the next effective rate, the differences between the rates as assessed upon the amounts so awarded by him and the rates as assessed upon the amounts of rateable value heretofore entered in the rate book.

The next rate was made and published on 2nd May 1874, upon the reduced amount, and the overseers refusing to be bound by the award, or to repay the money due to the company as directed, issued a summons before the justices, and obtained a warrant of distress against the waterworks company. The goods having been seized, the company gave notice that they intended to replevy the same, and proposed in lieu of a replevin bond with sureties to deposit such amount as the Registrar of the County Court should deem sufficient to cover the rate and damage, and the probable costs of an action, on condition that they should at once commence an action in the Court of Queen's Bench against the overseers of the poor. A writ was accordingly issued, to which the defendants appeared; upon which the above motion to stay the action and deliver up the replevin bond was made last term by Alfred Wills, Q.C., against which

Joseph Brown, Q.C. with him W. Willis showed cause. The umpire has exceeded his authority. The question is whether the overseers are to give credit for sums of money overpaid before the award is made.

A. Wills, Q.C.-There is a case on all fours with this one, but curiously it is not referred to in the digests, nor could I find it in the text books. I refer to the London and North Western Railway Company v. Bedford (17 Q.B. 978).

BAIL.]

Articled clerk-Service under unstamped articlesEnrolment nunc pro tunc—6 & 7 Vict. c. 73, s. 8. The court will only allow articles of clerkship to be enrolled nunc pro tunc, and the service under them to be reckoned as from their date when the omission to stamp has been the result of some unforeseen and special occurrence. The mere promise of a brother to pay the stamp duty out of a legacy is insufficient.

Ex parte Blades (32 L. T. Rep. N. S. 32) dissented from.

Ambrose, Q.C., moved that the affidavit of the execution of the articles of clerkship of Henry Newton Bryan be enrolled nunc pro tunc, and the service be permited to count from the date of the articles, notwithstanding the stamp duty thereon had not been paid within the six months allowed by the 6 & 7 Vict. c. 73, s. 8.

From the affidavits it appeared that the applicant had been articled in Feb. 1870, upon the faith of a promise of a brother that he would immediately procure him the amount necessary to pay the stamp duty. The money was not obtained until Feb. 1871, when the articles of clerkship were stamped and the penalty paid, and by some mistake, an application being made to Lush, J., sitting at chambers, an order was granted

that the service should count from the execution of the articles.

The following are the material parts of the applicants' affidavits :

That on the 19th Feb. 1870, I entered into articles of clerkship upon the faith of a promise of a brother that he would procure me the stamp duty payable upon the said articles of clerkship immediately, and within the time limited for registration.

That immediately upon my executing the said articles as aforesaid, my brother instructed his solicitor to procure the amount required upon mortgage of a legacy left to him by a relative.

That my brother's said solicitor entered immediately into negotiation with different persons to procure the said loan, but much delay occurred in consequence of one of the trustees acting under the will of Faith Ann Bryan, my brother's said deceased relative, who had bequeathed him a legacy as aforesaid, refusing to give any information as to the funds or securities out of which the said legacy was payable, or to give any information or assistance to my brother's said solicitor in completing a mortgage of the said legacy.

That in consequence of the delays, as aforesaid, I, the deponent, did not receive the amount required until after the six months limited for registration had expired, but immediately upon receiving the same on the 16th

[ARCHES.

Feb. 1871, I caused the said articles of clerkship to be duly stamped, and the penalty of 101. incurred to be paid, and the articles of clerkship to be enrolled.

That the delay as before mentioned has been quite unavoidable on my part, and has been caused altogether by circumstances over which I had no control.

The case of Ex parte Blades (32 L. T. Rep. N.S. 33) recently decided in the Common Pleas, is almost similar to this, and there the court permitted that the service might count from the execution of the articles. [BLACKBURN, J.-I think the case of Ex parte Blades has gone a great deal too far, and I don't think we ought to grant this rule. If the Common Pleas are of a different opinion, we had better have a meeting of the judges to decide what is to be done.] The case of Ex parte Breden (12 C.B., N.S., 35) is also in favour of the applicant. The applicant had a right to expect that the money would be paid; he was acting bonê fide on a reasonable expectation that the money would be forthcoming, and this case may be said to fall within the category of an unforeseen emergency.

BLACKBURN, J.-As long ago as 1871 the applicant had somehow or another obtained at chambers a judge's order that the articles of clerkship should be enrolled nunc pro tunc, and on that special ground we will permit it in this case. I for one, however, am of opinion that the cases cited (Ex parte Blades, 32 L. T. Rep. N. S. 33; Ez parte Breden, 12 C. B., N. S., 351) should not be followed.

MELLOR, J.-I am of the same opinion. I should be glad of an opportunity in many cases of hardship to be able to relax the rule, but the statute is imperative and binding upon us, and unless special and unforeseen circumstances arise we can make no exception to the general rule. Rule accordingly.

Attorney for applicant, Orton.

ARCHES COURT OF CANTERBURY. Reported by C. E. MALDEN, Esq., Barrister-at-Law.

Aug. 6, Nov. 26, 27, and Dec. 7, 1874. MARTIN v. MACKONOCHIE.

(SECOND SUIT.)

Ecclesiastical law-Rites and ceremonies of Church -Lighted candles-Hymn during communionSign of cross-Practice-Personal answer-Reargument of points decided by Court of Appeal. It is unlawful for a clergyman of the Church of England, first, to use lighted candles on the communion table, or on a ledge above the same, during morning prayer, when such candles are not necessary for giving light; secondly, to cause the hymn called the " Agnus to be sung after the prayer of consecration, before the reception of the elements by the people; thirdly, to do any act of private devotion which either conflicts with a direct order of the rubric, or introduces any new rite or ceremony to the congregation. But to cross himself as an act of private devotion does not fall under either of these categories, and is not an ecclesiastical offence.

The law of evidence as formerly administered in the Court of Arches is modified by 18 & 19 Vict.

c. 41.

It is competent for the judge of a court of first instance, in his discretion, to have points decided

by a court of appeal reargued before him, when the judgment of such court has been delivered on the hearing of an ex parte case, is founded on a mistake of fact, and is irreconcilable with other decisions.

THIS was a proceeding under the Church Discipline Act (3 & 4 Vict. c. 86) against the Rev. A. H. Mackonochie, the incumbent of St. Alban's, Holborn, in the diocese of London. There had been former proceedings against him at the instance of the same promoter. (See L. Rep. 2 A. & E. 116; 2 P. C. 365; 18 L. T. Rep. N. S. 245; 19 L. T. Rep. N. S. 503).

The articles, omitting those which were merely formal, alleged :

4. The use of lighted candles on the communion table, or a ledge above the same, during morning prayer, when not wanted for the purpose of giving light;

5. Processions round the interior of the church, with candles, a crucifix, and banners;

6. Unauthorised elevation of the paten and cup during the communion service;

7. The wearing of unlawful vestments, namely, an alb, cope, chasuble, amice, maniple, stole, and girdle;

8. Standing on the west side of the communion table, with his back to the people, during the prayer of consecration;

9. The use of wafer bread at the communion;

10. Causing a hymn called "The Agnus" to be sung after the prayer of consecration in the communion service;

11. Making the sign of the cross;

12. Kissing the Prayer-book.

The defendant pleaded a responsive plea, that the churchwardens had never made any complaint against him to the bishop or archdeacon; that the bishop had never ordered or admonished him not to do any of the acts charged against him; that the present suit was promoted against him contrary to the wish and desire of the churchwardens, parishioners, and congregation of St. Albans ; that the promoter was not a parishioner, but was proceeding at the instigation and cost of a society called the Church Association, and was a violator of the peace and unity of the Church.

Aug. 6 1874.-W. G. F. Phillimore, for the defendant, moved the court to direct the promoter to file his personal answers to the responsive plea. He cited:

Farnall v. Craig (5 No. Ca., 557; 6 No. Ca., 682); Bishop of Norwich v. Berney (36 L. J. 8, Eccl.). B. Shaw, for the promoter, opposed the motion on the ground that the old practice with regard to personal answers was modified by the introduction of vicâ voce evidence, under the 18 & 19 Vict. c. 41. Sir R. PHILLIMORE.-I am of opinion that the 18 & 19 Vict., c. 41, does do away with a good deal of the law of evidence as formerly administered in this court, and it may be a question of doubt how far the old practice of the Ecclesiastical Courts in the matter of personal answers has been modified by recent legislation; but it is not necessary to express any opinion on this question until I have considered whether I ought to exercise my discretion in the promoter's favour. On consideration of all the circumstances, I am of opinion that I should refuse to grant the motion.

Nov. 26. The case came on for hearing. Witnesses were examined both for the promoter and the defendant. The counsel for the defendant proposed to put in evidence a memorial addressed to the Bishop of London by the congregation of St. Alban's, but the court held that it was inadmis

sible.

[ARCHES.

A. J. Stephens, Q.C., and B. Shaw, for the promoter, urged that the acts charged had been expressly or implicitly decided to be illegal by the decisions in

Sumner v. Wix, L. Rep. 3, A. & E. 58; 21 L. T.
Rep. N. S. 766;

Martin v. Mackonochie, first suit, ubi sup.;
Hebbert v. Purchas, L. Rep. 3 P. C. 605;

Elphinstone v. Purchas, 23 L. T. Rep. N.S. 446; L.
Rep. 3, A. & E. 66.

A. Charles, Jeune, and W. G. F. Phillimore, for the defendant, argued that as to some of the acts no decision had yet been given, and that as to the others the decision in Hebbert v. Purchas having been ex parte, and irreconcilable with Westerton v. Liddell (Moore's Special Report, 1857), and Martin v. Mackonochie (first suit), the Court ought not to decide against the defendant without hearing an argument. They cited

Peek v. Gurney, 25 L. T. Rep. N. S. 446; L. Rep.
H. L. 377;

Collins v. Lewis, L. Rep. 8 Eq. 708;

Dugdale v. Dugdale, L. Rep. 14 Eq. 234; 27 L. г.
Rep. N. S. 705.

Stephens, Q.C., in reply on this point.

On

Nov. 27.-Sir ROBERT PHILLIMORE.-The 7th, 8th, and 9th articles of charge relate to the use of certain vestments or ornaments, the position of the celebrant, and the use of wafer-bread. former occasions this Court has upon these subjects pronounced judgments favourable to the defendant, but the Judicial Committee of the Privy Council has overruled them. In this state of things an application is now made to me to hear an argument to show that the decisions of this court were right, and that those of the appellate court were wrong. The application is admitted to be unusual, but is said not to be unprecedented, and cases were referred to in support of it. It was urged, with considerable force, that the case came within the principle of these precedents because the judgments of the appellate court were delivered upon the hearing of an ex parte case, and have been conflicting and irreconcilable, and can be shown to be founded on mistakes of fact as well as of law. In these circumstances it would be competent, I think, to this court to allow these questions to be re-argued before it; but I am satisfied that such a course would, on the whole, be inexpedient. All these points inay be re-argued before the Privy Council, and, if there has been any miscarriage of justice, it is fully competent to it to rectify its errors. I think it is more consistent with the usual practice, and more proper, that the argument which it is now sought to address to this court should be addressed to the Privy Council. I therefore decline to hear it. Stephens, Q.C., and Shaw were then heard in reply upon the whole case. Cur adv. vult.

Dec. 7.-Sir ROBERT PHILLIMORE.-In this case the office of judge is promoted by letters of request from the Lord Bishop of London, presented by Mr. Martin, of 2, New-square, Lincoln's-inn, against Mr. Mackonochie, the incumbent of St. Alban's, Holborn, in the diocese of London. The defence set up for the practice charged in the fourth article was that these lights were not part of any ceremony, and were symbolical of nothing, but merely a permissible decoration constituting no ecclesiastical offence. I am unable to justify the legality of their use on this ground; they seem to me to fall within the general principle either of ceremonies additional to those ordered by

the Book of Common Prayer, or of ornaments not ordered, and not subsidiary to those that are ordered. I must pronounce this practice illegal, and this article proved. Two witnesses were examined on the 6th article by the prosecution, but upon the whole I am of opinion that the charge laid is not substantiated by adequate evidence, and I pronounce that it is not proved. The wearing of a biretta, as charged in the 5th article, was not illegal, but it was properly admitted by the counsel for the defendant that the whole ceremony, as laid in the article, and proved by the evidence, had been pronounced by me in Mr. Purchas's case to be illegal. I retain the opinion which I then expressed. I pronounce this article proved. The evidence proves that the hymn charged in the 10th article was sung after the consecration of the elements, but not during the reception of them by the communicants. It was contended that the singing of this hymn might be put on the same footing as the ordinary singing of a hymn before and after the sermon, or the singing of the "Gloria" before reading the Gospel. But looking to the history of the Prayer Book, and to the fact that this hymn is appointed to be said or sung in a later part of the Communion Service, I am not of this opinion, nor do I see any reason to alter the decision upon this subject which I have already delivered in Elphinstone v. Purchas (ubi sup.). I pronounce this article to be proved. It was properly admitted by the counsel for the defendant, that upon the subjects of the 11th and 12th articles generally I had given judgment in the case of Elphinstone v. Purchas, pronouncing the kissing the book and the making the sign of the cross to the congregation illegal. The evidence upon the 11th article went beyond this, and further proved that the defendant crossed himself during the performance of divine service. This latter act was said not to be illegal, as not being any part of the service performed by the minister as minister, but an act done by him in his individual capacity as one of the congregation. The adverse contention seems to be that the officiating minister is not allowed to divest himself during the whole time of performing divine service of his ministerial character; and, therefore, that an act which it would be competent to him as a member of the congregation to perform, is not permitted to him while officiating as minister. This proposition seems to me too wide. The more limited proposition would be that it is not competent to him to do any act of private devotion which either conflicts with a direct order of the rubric, or which introduces a new rite or ceremony to the congregation. But the minister crossing himself as a matter of private devotion does not seem to me to fall under either of these categories, but rather to be of the same character as covering the face with the hands during prayer, or crossing the hands over the breast, or spreading them out, or lifting them up, which could not reasonably be contended to be an ecclesiastical offence. I am of opinion that the legal offence is proved so far only as making the sign of the cross to the congregation is concerned. As to the 7th, 8th, and 9th articles, I have already during the course of this trial given my reasons for refusing to hear an argument from the counsel for the defendant as to the lawfulness of this position, the use of this bread, and the wearing of these vestments. To these reasons I now, without

[ADM.

recapitulating them, refer. They must be taken as part of my judgment. I pronounce that the charges laid in these articles are proved.

His Lordship then proceeded to sentence the defendant to suspension ab officio for six weeks, and condemned him in all costs of the suit except those incident to the 6th article, which he had pronounced not to be proved. He also admonished him to desist from the practices mentioned in the articles proved.

[N.B.-Notice of appeal to the Privy Council was given on behalf of the defendant, and a case was prepared and lodged; but it was withdrawn shortly before the appeal would have come on for hearing.]

Proctors for the promoter, Moore and Currey. Proctor for the defendant, Brooks.

COURT OF ADMIRALTY. Reported by J. P. ASPINALL, Esq., Barrister-at-Law.

Wednesday, Nov. 4, 1874.
THE MOSELLE.

Collision-Compulsory pilotage-Ship carrying cargo and passengers from Boulogne to London. A steamship carrying cargo and passengers from Boulogne to London is not bound under the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), to employ a pilot whilst navigating the river Thames, the general exemption continued from 6 Geo. 4 c. 125, sect. 59, and the order in council of 18th Feb. 1854, by the Merchant Shipping Act 1854, sect. 353, not being overriden by sect. 379, relating to Trinity House pilotage and exempting such a ship only when not carrying passengers. Reg. t. Stanton (8 Ell. & Bl. 445), and The Earl of Auckland (Lush. 164, 387), followed

THIS was a cause of collision instituted on behalf of the owner of the dumb barge Alice against the steamship Moselle, her owners the General Steam Navigation Company intervening. The cause was originally instituted in the City of London Court, and was transferred into the High Court by order of that court.

At the time of the collision the barge was moored alongside a sailing ship called the Eliza beth, in the Cherry Garden Pier, Rotherhithe, in the River Thames. This pier is a usual place for vessels to lie and unload into barges, and the Alice was wholly out of the usual course of navigation and was properly moored. The Moselle was charged by the plaintiff with neglecting to keep ont of the way of the barge.

The collision was admitted by the defendants, and it was alleged in their answer that the Moselle was proceeding up the River Thames in charge of a duly licensed Trinity House pilot, at the rate of about 6 knots an hour; that just before the collision the helm of the Moselle was, by order of her pilot, starboarded to pass to the southward of a sailing barge which was driving up ahead of the Moselle; that by order of the pilot the helm of the Moselle was then put hard a port and her engines stopped, but that she with her stem and port sponson struck the barge Alice, lying in the Cherry Garden Pier. The answer then contained the following allegation:

4. The said collision was caused by the fault or incapacity of the said pilot, and not by any neglect or default on the part of the master and crew of the Moselle;