Ex. CH.]

surety, against whom an action is brought for the payment of the debt due from the principal, the surety may in all reason be justified in defending such action at the cost of the principal, or in calling on the latter to do so. The cases, however, which have been cited on the present occasion are, with one exception, cases of indemnity, and such cases do not apply to a case like the present, where there were two separate, distinct, and independent contracts, each containing very different conditions and stipulations from the other of them. It would, I think, be highly unreasonable were the court to hold the plaintiffs at liberty to impose on the defendants against their consent, the costs of an action brought by Harding upon a contract between him and the plaintiffs to which contract the defendants were not parties, and of the terms of which they were in entire ignorance, and with which they had no concern whatever. But if it is not a case of a contract of indemnity, is it one of proximate damage? This is not a case in which the relation of principal and surety exists; and the only ground on which these costs could possibly be recovered by the present plaintiffs is that they are the natural, reasonable, and proximate consequence of the defendants' breach of contract within the wellknown rule laid down in the case of Hadley v. Baxendale (9 Ex. 341; 22 L. J. 179, Ex.). I am of opinion, however, that they do not and cannot come within that rule; nor can I see the slightest connection between these costs and the defendants' breach of contract. If the defendants had undertaken to defend Harding's action, then, according to the principle of the cases cited in the notes to the case of Lampleigh v. Braithwait (ubi sup.), an action for money paid, at request of the defendants, might have been maintained. But, according to the facts here, the defendants, from first to last, declined to have anything to do with the action, and repudiated all liability with respect to it. Of all the cases cited on the part of the plaintiffs, the only one that has any application to the present case is that of Mors Le Blanch v. Wilson (ubi sup.), and that is a case on the authority of which they were, I think, justified in relying in the court below, nor can I see any distinction between it and the present case. plaintiffs, the charterers in that case, upon action brought by the shipowner, gave notice of it to the defendants in order that they might defend the action; but, just as the defendants did in the present case, the defendants there declined to interfere in the matter. As here, too, there were there two separate and independent contracts, and, with deference to the opinion of my brother Lush, I do not think that the assessment of damages against Mors Le Blanch, the charterer, in the first action was at all binding on or conclusive against the defendant Wilson in the second action, in which Wilson was at liberty to set up a different defence. Sitting here, we are not bound by the authority of that case, which seems to have been decided upon a mere dictum of Parke, B., in the case of Tindall v. Bell (11 M. & W. 228, at p. 231; 12 L. J., N. S., 160, Ex. at p. 261), and I concur with my Lord Chief Justice and my brother Keating in thinking that it was wrongly decided.

The

ARCHIBALD, J.-I also am of opinion that the defendants are not liable to pay these costs. It cannot be contended that they gave any authority,

[RAIL. COM.

express or implied, to the plaintiffs to incur them, for, on the contrary, they were holding the plaintiffs at arms' length from the beginning to the end of the case. Then comes the question whether the plaintiffs were compelled to incur them by reason of any default on the part of the defendants; or, in other words, were they the natural and necessary consequence of such default? In my opinion they certainly were not. The contracts between the plaintiffs and Harding and the plaintiffs and the defendants respectively were wholly independent of each other, and the damages recovered by Harding against the plaintiffs were not necessarily the same as those which the plaintiffs might recover against the defendants; nor was it needful for the plaiutiffs that the damages in Harding's case should be assessed in order to enable the plaintiffs to recover against the defendants. It might be very prudent, and necessary even, for the plaintiffs, and for their benefit, that they should have the damages so assessed, but it could in no shape be conclusive against the defendants, because the two contracts were quite distinct and independent. I confess that I am unable to see any distinction between the present case and that of Mors Le Blanch v. Wilson (ubi sup.). My brother Lush, however, has pointed out what, in his judgment, he considers to be one, though I am unable to see it myself. I cannot see why the damages assessed against the plaintiffs in that case furnished a conclusive test or measure of those which they could recover in the action against Wilson. The contracts there, like those in the present case, were distinct and independent, and Mors Le Blanch might have brought an action at once against Wilson before he had himself been sued, which would have settled the question of demurrage; and so in the present case, the plaintiffs might at once have sued the defendants, who, if they had defended the action, would have done so at their own peril, and the costs of ascertaining the value of the pictures would have fallen upon them. If it is necessary for me to pronounce an opinion on that case of Mors Le Blanch v. Wilson, I would say that I think it is open to the same objection as the decision of the court below in the present case, which I am of opinion ought to be reversed for the reasons which have been given.

Judgment reversed. Attorneys for the respondent plaintiffs, Uptons, Johnson, Upton, and Budd.

Attorney for the appellant defendants, T. C. Church.

COURT OF THE RAILWAY COMMISSIONERS

Reported by WILLIAM EVANS, Esq., Barrister-at-Law.

Jan. 4, 5, and 8, 1875.

THE BRISTOL AND EXETER RAILWAY COMPANY v. THE SOMERSET AND DORSET RAILWAY COMPANY. Failure of consideration-Application to set aside agreement - Breaking ground. The S. Company having obtained power to make the C. railway from Y. to W., transfers the powers to the B. Company, which is at the same time authorised to run through and use the station W. of the S. Company, so as to have free communication with the E. S. R. The consideration to be paid for these rights was fixed

RAIL. COM.]

at 4001. per annum. This agreement to pay was to take effect from the time that the B. Company should begin to break ground within six feet of any of the sidings in the W. yard. Ground was broken in 1870:

Held, that the words "to break the ground" mean "to commence work," and do not include preparations for the execution of work: Held, further, that inasmuch as the payment of the rent was made to depend upon the happening of a certain event, there was no room to modify the agreement to pay, by a reference to considerations upon which payment was not dependent. THIS was an application by the applicants to be released from the payment of a certain annual sum to the Somerset and Dorset Railway Company. The grounds of the application will be seen from the arguments of counsel and the judgment of the court.

By an Act of Parliament passed in 1864, a line of railway known as the Cheddar Valley Railway, was authorised to be constructed from Yatton to Wells, to which as it was likely to prove of assistance to the applicants in establishing communication with East Somersetshire, they obtained power to subscribe 100,000l., and in 1865 took the whole business into their own hands, and with it all the rights, privileges, and powers belonging to the original company. At the same time an agreement was made between the two contending parties, by which the Bristol Company was bound to pay to the Somerset Company an annual sum of 4001. for the use of Wells Station and all servants and appliances there, in return for which the former were to receive from the latter free and unrestricted communication for all purposes of traffic between Yatton and the East Somerset line. Of this sum one half was to be considered as payment for rent, the other for services rendered, and the agreement was to be held binding from the time when the Bristol Company broke ground within six feet of the sidings of the Somerset Company. In 1870 that ground had been broken according to the strict letter of the law.

Rodwell, Q.C. and Saunders for the applicants.The ground had been broken in 1870 only to effect a junction at Wells Station. This was necessary to the through communication, for which only the Bristol Company had taken the line into their hands, and to facilitate which the Somerset Company had bound themselves by the same agreement. This breaking of ground consisted only in the removal of rails belonging to the Somerset Company's line by that company, but at the applicant's expense, to facilitate the broad gauge communication which was considered necessary. To effect that communication it was found inevitable that the Cheddar valley line should cross a goods siding belonging to the Somerset Company by means of a level crossing, but the Board of Trade had refused to grant the necessary certificate. In consequence of that refusal, though the line had been ready practically for use since May 1870, the Bristol Company had hitherto been unable to make any use of it, and had reaped as yet none of the advantages which they had expected to obtain from the construction of the Cheddar Valley line. But, although the Bristol Company had made no use of the Wells Station, or the servants and appliances there, the Somerset Company claimed the 4001. annually since 1870. This was unreasonable. Why should the Bristol Company pay for an

[RAIL. COM.

easement they had never used and for services which had never been rendered? It was true that the ground within the prescribed distance had been broken, but even if the court should rule that thereby the agreement should be held in force, at least by the same agreement the Bristol Company was entitled to compensation for the losses they had sustained by their inability to avail themselves of the advantages that were to accrue to them from that agreement.

Field, Q.C. for the respondents.-The applicants deny that either at law or in equity any rent was due by the original terms of the agreement, because they had never as yet enjoyed the benefits they were by the same agreement to receive for the rent. They had also laid considerable stress on the alleged fact that they had been debared from these benefits by reason of the defective nature of the plans which had been originally deposited before Parliament. But reference to the agreements will show that the rent was due, that the applicants were acquainted with the posiand accomodation of the goods station at Wells, for 'some time before the first deposit of plans. They never had complained of these plans before the present application. Again the rent was claimed and again denied, on the ground that the primary object of removing those sidings was to effect the necessary crossing, and therefore did not come under the sense implied in the words of the agreement. But the primary object could not affect the actual fact that ground had been literally broken, with what purpose was immaterial.

The following judgment was delivered by the CHIEF COMMISSIONER (Sir Frederick Peel). — In 1864 the Somerset and Dorset Railway Company obtained powers from Parliament to make the Cheddar Valley Railway from Yatton to Wells. In the following year the powers were transferred to the Bristol and Exeter Railway Company, and in order that there might be a free communication at Wells between that railway and the East Somerset Railway, the Bristol Company were authorised to run through, as well as to use, the intervening passenger station of the Somerset and Dorset Company. In anticipation of the Act passing, an agreement, afterwards confirmed by the Act, was made between the two companies in March 1865, and one article provided that the Bristol Company should for ever pay to the Somerset Company, as compensation or rent for the easement of running powers and for the use of the passenger station, 400l. a year, to take effect from the commencement of any works under the agreement, meaning works on the passenger or goods station of the Somerset Company at Wells, required to establish the through communication. The railway generally was completed and opened for traffic early in 1870, but at the inspection on behalf of the Board of Trade, before the opening, objection was made, in advance, to the mode in which the junction at Wells was about to be formed, by level crossings over various goods lines in the Wells station yard of the Somerset Company; and the result was that the extension of the railway to that company's passenger station was not carried out, nor was through communication made with the East Somerset line. Express powers for the level crossings were obtained from Parliament in 1873. The Somerset Company made a claim for rent in 1869, but the Bristol Company denied that works had then been commenced, and on the

10th Feb. 1870, it was agreed between them that the Somerset Company should waive all claim for rent till the Bristol Company should begin to break ground within 6ft. of any of the sidings in the Wells yard. It is admitted that ground was broken some time in 1870, but the Bristol Company maintain that, through a default of the Somerset Company, they have been prevented making any use of the Wells Station or of their acquired right to pass through it, and that so long as they have not that use, the rent promised in contemplation of their having it does not become payable. This difference between the two companies is referred for our decision. It appears that the plans of the Cheddar Railway deposited by the Somerset Company for the Act they obtained in 1864 did not exhibit the goods lines in their Wells Station intended to be crossed on the level, and that when the railway was inspected previous to opening, the inspecting officer drew attention to the proposed level crossings in the station, and intimated that they would be objected to and would not be held to have received an implied Parliamentary sanction from the general power given by the Act of 1864 to make the railway in accordance with the line and levels shown in the deposited plans and sections. The officer who inspected for the Board of Trade was Colonel Yolland, and the Bristol Company lost no time in communicating with him as to his remarks on the crossings, and their correspondence on the subject was put in at the hearing. By the agreementof the 10th Feb. 1870, it was provided, inter alia, that the Somerset Company should waive all claim to rent for the Wells yard until the Bristol Company, in the construction of their Cheddar Railway, should begin to break ground within 6ft. of the sidings in that yard, and that the Somerset Company, moreover, should offer no objection to any application the Bristol Company might make to Parliament for express sanction to cross the goods lines in the yard in the manner contemplated in the agreement of 1865. The date and the contents of the agreement of 1870 show conclusively that the Bristol Company entered into it with a full knowledge of the difficulty with the Board of Trade and of the possibility of an application having to be made to Parliament to overcome that difficulty. The rent itself was the subject of re-arrangement on that occasion, and it might have been made dependent upon the issue of the suggested application to Parliament, but both parties agreed instead that the new starting point for the rent should be the happening of an event of another kind, and which could only happen by the Bristol Company's own act-namely, their beginning to break ground within certain parts of the Wells yard. Surely, after this agreement was made there was no longer any room for modifying its effect by considerations drawn from circumstances of which the parties had not only a full previous cognizance, but which furnished one motive for their entering into it, and we can come to no other conclusion than that the impediments to the completion of the line, of which the Bristol Company had notice in Nov. 1869, to whatever causes they may have been attributable, must be altogether excluded from having any bearing on the question of that company's liability for the rent, and that the Somerset Company are entitled to their rent from the time when ground was first broken. The rent of 4001. I

[ADM.

to costs.

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

Master's wages ·

Thursday, Feb. 4.

THE DUNMORF.

Disobedience to instructions — Error of judgment-Forfeiture-Deduction. Where a master receives instructions to take the balance of freight due at the end of a voyage in cash, or by bank bill upon London, and, without sufficient inquiry, but without mala fides and rather through error of judgment, he takes a bill which he believes to be (but which is not) a bank bill, and which is afterwards dishonoured, causing loss to his owners, this negligence or disobedience, not being wilful, does not work a forfeiture of his vages, nor can the owners claim to deduct the amount of their loss from his wages.

THIS was an appeal from a decree of the City of London Court (Admiralty Jurisdiction) in a cause of wages instituted by John Harwood, master mariner, against Messrs. Adamson and Ronaldson, shipowners in the City of London, the owners of the ship Dunmore.

The plaintiff was engaged on the 19th March 1872 by the defendants to act as master of the Dunmore, at "fifteen pounds per month," then lying in the river Tyne, under charter to carry coals from the Tyne to Buenos Ayres. By this charter-party, dated the 18th March 1872, the ship was to load a full cargo, and to proceed therewith to Buenos Ayres and "deliver the same, always afloat into craft alongside steamer or depôt ship there, as may be directed by the consignee, being paid freight at the rate of 358. per ton of 20 cwt.;

the freight to be paid, one third on sailing, less 5 per cent. for all charges, and balance on delivery of the cargo in cash at current exchange, or by good and approved bill on London at sixty days' sight, at captain's option. The captain has

ADV.]

[ADM.

to receive 51. gratuity. . . . The ship to be addressed at the port of discharge inwards only, to the freighters' agent free of commission. . . . The owners of the ship to have an absolute lien on the cargo for all freight, dead freight, and demurrage." This charter-party was entered into between the defendants and Gustav Hermanni, of Hamburgh. The ship duly loaded her cargo in the Tyne, the charterer being the shipper; and the master, on the 4th May 1872, signed a bill of lading for 654 tons llewt. of coal, "shipped in good order and condition by Gustav Hermanni, Hamburgh," and "to be delivered in the like good order and condition, at the port of Buenos Ayres, unto Messrs. Lamb Brothers, or to their assigns, they paying freight for the said coals, and all other conditions, as per charter-party." The bill of lading was indorsed with a receipt by the master for the sum of 5811. 16s. 5d., the amount of freight agreed by the charter-party to be prepaid at Newcastle.

On the 2nd May 1822 the defendants wrote to the plaintiff at Newcastle, as follows:

Dear Sir,-We have no letter from you this morning, but we hope you will get away to-morrow. The ship is consigned, as you will see by the charter, to charterer's agent at Buenos Ayres, inwards only. We do not know their names yet, but shall have them in a day or two, and we will have letters awaiting you at their office. As there is no chance of your loading out again at Buenos Ayres, we do not appoint any agents for the vessel there. All that will have to be done is to collect the balance of inward freight and disburse the ship, remitting us what money then remains. The ship is free of commission to charterer's agents, and you will see it is at your option to take the balance of freight in cash at current exchange, or by approved bill on London. You must do which you deem best; but if you take a bill, it must be a bank bill, it being a rule with us that all remittances are to be made by such drafts. Always send remittances your. self; first of the draft by one mail, and second by mail following. Our idea of further employment, &c. (The rest of the letter is immaterial to the present case.)

The ship duly sailed with her cargo, and arrived in Buenos Ayres all safe on or about the 15th July 1872. The master at once applied to Messrs. Lamb Brothers, the consignees named in the bill of lading, for instructions as to delivery of the cargo; and he was referred by them to a Mr. Haase, the manager of the River Plate General Trading Company in Buenos Ayres, to whom Messrs. Lamb said the cargo belonged. The master applied to Mr. Haase, and was by him informed that his papers relating to the cargo (including the bill of lading) had not arrived from England, but that he would clear the ship at the Custom House. Mr. Haase accordingly cleared the ship, and the master commenced discharging cargo. Mr. Haase advanced money to the master to the amount of 1401 for disbursements, but would not pay the whole amount of freight until the cargo was wholly discharged. When it had all been delivered, the balance due for freight was 550l., including 51. gratuity due to the master. The master applied to Mr. Haase for the money in cash, but Haase offered bills drawn by himself upon The River Plate Trading Company (Limited), No. 1. Leadenhall-street, London. The master told Haase that he wanted a bank bill, and Haase said that "The bill is on my bank in London." The master went to the British consul to inquire about the credit of the River Plate Trading Company, and was informed by the consul that " they were a new firm, and he knew nothing against them, but they were honourable people.' The master thereupon took the bill offered for the balance of freight, and re

mitted it to his owners, believing it to be a bank bill, and calling it "a bank draft" in his letter to them. He then, in accordance with his instructions, sailed for the Mauritius, where he arrived on the 12th Nov. 1872. Whilst there he received letters from his owners, inclosing a printed form of instructions, which they were in the habit of issuing to all their masters, and in which it was said, Make all remittances by bank bills, and where practicable send remittances yourself, rather than leave agents to do so. The only exception to our request always to remit by bank bills is in the case of the port of New York. From there we tal:e the drafts of first-class houses on their branches here." He left the Mauritius with his ship, and arrived in Calcutta on the 12th Jan. 1873.

66

The bill was received by the defendants on the 30th Sept. 1872, and was immediately presented to the River Plate Trading Company for acceptance, but they refused to accept, saying that Haase had no authority to draw. Proceedings were taken against them, but without effect, and the bill was then sent out again to Buenos Ayres for presentation to Haase, but at the time of the commencement of this cause nothing had been recovered on it.

On the 25th Oct. the defendants wrote to the plaintiff at Calcutta, acknowledging the receipt of his letter inclosing the draft, and saying:

In your letter you call it a bank draft, but it is no such thing. It is on a trading company, who refuse to honour it, and, as far as we can see at present, we will lose the whole of the money. By your charter-party you were to get bala ce of freight in cash, or by an approved bill, at your option. Your duty then was clearly to have got the hard cash, gone to the best bank in Buenos Ayres, and have bought a bill there. That would really have been a bank bill, in accordance with our printed instructions, so plainly set forth; and how in the face of the same you send us such a draft, we are quite at a loss to conceive.

On the 18th Dec. the defendants again wrote to the plaintiff a letter, which was sent by a Captain Mitchell. The plaintiff was therein informed that he must hand over his command to Capt. Mitchell, and proceed at once to London in order that the plaintiff might see the defendants' solicitor, and give the latter a "detailed account of the whole of the circumstances connected with the 5501. draft which the plaintiff took and advised to the defendants " as a bank bill." The plaintiff was asked to keep down his travelling expenses, as all the extra expense of bringing him home was "clearly traceable to his not having attended to the defendants' instructions." The master received this letter two or three days after his arrival at Calcutta, the former letter having been there on his arrival. The plaintiff at once left for London, where he arrived in the first week in March, and at once put himself in communication with the defendants for the purpose of making up his accounts and assisting them in recovering on the 5501. draft. The plaintiff applied for his wages, and the defendants gave him 101. ou account.

On the 27th March 1875, he delivered them an account showing wages to be due to him amounting to 110l. 158. 3d. The defendants refused to pay this amount, because they said that the plaintiff was indebted to them for the 5501. in consequence of his negligence in the matter.

On the 7th April the plaintiff had an interview with the defendants' manager, when he again applied for a settlement of his account, and for a testimonial they had promised him, and for his

discharge. The defendants' manager said that the plaintiff could not have a settlement of his account unless he signed a letter then submitted to him, and that he would not get his money until the money on the bill had been paid. The letter submitted to the plaintiff was as follows:

London, 34, Leadenhall-street, E.C., 7th April 1873.

Messrs. Adamson and Ronaldson.

Gentlemen,-With reference to the balance of my account as master of the ship Dunmore, which I have rendered to you; as also to the supplemental statement made out by you, and showing 721. 6s. 9d., as due to me, I hereby agree to the correctness of the same, and furthermore I abide unconditionally by your requirement, that I shall await your paying me the same until you receive 208. in the pound on the 5501. draft drawn by Mr. Haase, which has been dishonoured, and which I sent to you, believing the same to be a bank bill; and if you do not get 20s. in the pound, then I shall have no claim whatever upon you in respect of the said balance of 721. 6s. 9d.

This letter the master took till the next day to consider about, and then went to the defendants' office, and the defendant Donaldson signed the testimonial in the plaintiff's presence, and offered it to him if he would sign the letter. The plaintiff declined to sign the letter, and was consequently unable to obtain either the testimonial, his wages, or his discharge. The testimonial was as follows:

We hereby certify that Capt. John Harwood has had the command of our ship Dunmore for twelve months, ending March last. We have found him strictly honest and sober, and fully believe he would do his utmost to give satisfaction to his employers. Capt. Harwood was relieved of the command of our ship in consequence of his having made us a remittance quite contrary to our instructions, but we fully believe he did so from want of knowledge and good judgment, and that the like would not happen again; and we sincerely trust his future prospects may not be prejudiced by his having lost command of the Dunmore.

ADAMSON AND RONALDSON.

The plaintiff then went for another voyage in other employ, and on his return in Sept. 1874 instituted the present suit.

The cause came on for hearing in the City of London Court (before R. A. Fisher, Esq.), on the 29th Sept. 1874, and on the following day a decree was given for the plaintiff, the court holding that "It appeared from the charter-party and bill of lading that the captain had an option in collecting the freight. Although the subsequent letter of the defendants limited the consideration, yet it was so large that, unless mala fides was shown on the part of the captain-and this the defendants had not shown-the captain was justified in the course he adopted. In the case of The Atlantic (Lush. 565; 7 L. T. Rep. N. S. 647; 1 Mar. Law Cas. O. S. 274), Dr. Lushington held that dilatory conduct did not forfeit wages, unless mala fides was proved. The printed instructions showed that the defendants meant that when the captain received cash for freight he should remit it by bank bill, and not by buying a bill. An approved bill was a bill to which no reasonable objection could be taken: (Smith's Mercantile Law, 511.) No error of judgment works a forfeiture of a master's wages so long as he remains in command of the ship: (The Camilla, Swabey, 312.) The question of wages would be referred to the registrar to ascertain the amount due up to the 7th April; the amount claimed in the plaint not to be increased, and the master not to be allowed the 51. gratuity included in the 5501. bill. The proposed testimonial of the defendants showed that they at the

[ADM.

time viewed the conduct of the plaintiff as an error in judgment."

From this decree the present appeal was brought by the defendants.

Butt, Q.C. and Webster (A. Cohen, Q.C., with them), for the appellants (defendants below).. -The plaintiff has been guilty of a wilful disobedience to the orders of the owners, which has caused loss to his owners, and has in consequence forfeited his wages. The amount of damage caused to owners by an officer's or seaman's negligence may always be deducted from his wages:

The New Phoenix, 2 Hagg. 420;

The Roebuck, 31 L. T. Rep. N. S. 274; 2 Asp. Mar,
Law Cas. 367.

[Sir R. PHILLIMORE.-Does such conduct as this master is accused of work a total forfeiture of wages? In The Thomas Worthington (3 W. Rob. 128, 132), speaking of the forfeiture of wages for misconduct, Dr. Lushington says: The principle applies not merely to contracts between masters and owners, and between owners and mariners, but it pervades all other contracts of service and hiring; and the only difference between this court and other courts of law in adjudicating upon such contracts is, that in this court, under ordinary circumstances, where any loss has been sustained through the negligence or misconduct of the mariner, the amount of the loss is alone deducted from the wages of such mariner, whereas in other courts no wages would be recoverable at all. Cases, indeed, may occur, even in this court, where the misconduct may be of so gross a description that, independent of any actual loss sustained by the owners, the entire forfeiture of wages would ensue; as, for instance, if a master had attempted to commit barratry; or if, throughout a voyage, he had shown gross incapacity, or had been constantly drunk. In either of these cases would this court be justified in pronouncing for any part of his wages under the contract? Unquestionably not, and if any such case came before me I should not hesitate for a single moment in rejecting his claim in toto."] We do not put the caseas one of gross misconduct, but as one of disobedience to orders leading to loss. By the old law, freight was the mother of wages, and, although the law is now altered, still how can a master recover his wages when he by his own negligence destroys the very fund out of which his wages would most naturally be drawn? But, even if the court should hold that there was no wilful disobedience, the defendants are still entitled to set-off or make a counter claim in respect of their loss, under the Merchant Shipping Act 1854 (17 & 18 Vict. c 104), sect. 191. At common law a set-off must be a liquidated sum, but it has always been the prac tice of this court and in the Admiralty Registry to allow deductions from wages in respect of negli gence resulting in loss; a fortiori, we are entitled to deduct losses arising from direct disobedience to orders. [Sir R. PHILLIMORE.-You must carry your argument to the extent that an honest mistake enures to a forfeiture of wages.] It is not necessary to contend that, because there is here a disobedience, whether wilful or not. [Sir R. PHILLIMORE.-Disobedience to orders must be either wilful, or done through ignorance and hence a mistake. If it is wilful, it works a total forfeiture of wages; there can be no partial forfeiture in such a case. But if, on the other hand, the disobedience was a mere mistake, made without mala fides and