The pilot-schooner "3. C Farsutaar" v, the steamer " Crosapes.""
Mr. W. V. Droamoxp appeared on behalf of the S.C. Farnlumn, Mr, &. Roprxsox Drummond on behalf of the S. C.
his wag an application, by motion for leave the appeal to Her Majesty in Council against the decision in this case, whereby the Farnham was held wholly to blame for the collision and each party ordered to pay their own coats, Mr, Drumaoxp, in support of the motion, ointed out that the amount claimed was "im, 1,000, for which security had been given by the Crusader, and iv Amount was under $2500, the wae made under the 137tH Artiely and not under the 13lat, In accordance with the reading of the 137th Article, he presumed it twas only for luan to eatialy the Court that an appeal was just or expedient, In the first place lie would mention that th plaintiff, or rather the plaintiff who was most intereated in the was a pilot belonging to thie port—be was' a young m do:
ded on hie akill and ability as w pilot for ally living, and his future career was very noriously afte of this sort,
against him—that he, " pilot of this port, was a matter always standing on recor lad brought an sotie: wor to recover damage sus by collision, not with a steamer of which ho hai the charge, but his own pilot-bent, and the Court had beld that he was wholly to blame, It was a matter importance to it mi mental to apprehension ow the Court had b deration all the evidence on each side. hind hold, rightly or wrongly, that be at liberty to uso all the evidence given by the plaintiff in adjudicating on the case, If all the evidence had boon considered, it would have been purely a question of credibility, and the plaintiff, as it was urged on hit behalf, would have been fortified by the improbability of his rushing into danger, and further fortified by the account defendant himself gave of the' accident as being impossible Mr. Droamtox said unfortunately the outside public would not look at the case in the ame way as his Lordship did. They would simply form their judgment on the terse but expressive woutence in his Lordship's judyment—I think the schooner is wholly to sy would not consider the whole evidence, or the decision, or the circumstances which caused his Lordship to come to that decision, His Lonosuir failed to see that the pilot's character was involved for want vf skill. Lhe decision was given onl; on the evidence the Court felt itevif at liberty to Mr. Dawacronn said his second point in support of an appeal being granted was with regard to the construction placed on the plain-Preliminary Act by his lordship, whereby 'a great deal of evidence had been eliminated and the ea Lordship bad just said, without that evidence. 'This was purely a legal point, and one be thought his Lordship would' be disposed to g fan appeal upon. Ho pvinted out that t was no authority for the finding, and expressed his boliet that it was not the pro-or construction to pat on the Frelimivary 'Act. If that decision was reversed, the evi ence that had leon eliminated in' the ca would be stated, and the case the tried on an entirely foo ing. Then thers sor. fully explained in the judgmwut, bad decid that the'steamer was wholly to blame for the whereas his Lordship, on the felt at liberty to use, overruled that opinion and found the schooner wholly to blame, The Court was divided, and he thought Ulus was another reason why an appeal should be granted.
Bie. Rosixsos, in opposing the motion, oon-tended that nothing could be clearer than the decision his Lordship had given in the case. But he wished to point out that the amount claimed for damage was, according to the rvidenes, about Tis, 300, whereas the amount fixed for apy the 13lst Article was $2,500, he argued that not of sufficient i fy an appeal, nor was t vol submitted that it nts should be put to the expense of an appeal, but assuming that his Lordship should be inclined to grant one, that it should bouponterms, and the terms he would suggest were;—tirat, that the defendants may be at liberty, op the hearing of the appeal, to dispute that part of the judgment which condemns them to pay their own costs, without presenting x eross-petition com, that security be given by fall amount required by il, namely $2,500; third, that as soon as the' plaintiff's security was ould be at liberty prepare the plaintiff not prosecuting the appeal they should be ordered to pay the costs thus i by thi fants; fourth, that the tiffs should pay the coste of this applica.
Th Court then adjourned till Monday morning.
12th Jan.
The Court re-assembled this moraing, when Mr. Drosacoxp replied to the argument advanced by Mr, Robinson. He pointed out that us the ence now stood the plaintiff had ited in the Court $900 and the defendant 1,000. Practically there was no deere yo be suspended or executed, ands his Lordship did not grant an appeal det could apply for his security and offer no objection. Ho submitted question now before the Court was simply an appeal er no appeal, and that when that was decided the i were to be Lordship or the Regis rar. the ter suggested by Mr. Robinson as most novel and original, and maintained that they could not he granted.
His Lorvsate, in giving judgment, said this was tion for to appeal under the Order io dispute in the in whioh have regan of right—the order would then have followed as a matter of right upon the application to appeal. Under section 137 the Court had power in oases where the sum in dispute did not atnount to $2,500 to grant Teave to appeal if it just or expedient to do #0. The question then for her it was either just or expedient that to leave to appeal should be granted in this case. The application was need upon three grounds. In the order he would take them, but not as they were put before the Court, the first ground was to be put on the words course continued" in the Proliminary Act in, lhe thought, the answer to the twelfth enquiry the second ground. was that there was a difference of opinion between the Court and and the thied, that the decision volved t was of very rear imp to the plaintiff, namely, character as a skilful pilot. As to ti iret ground it seemed to him the argument was the thi tated on s former occasion, that each enquiry in the Proliminary Act was independent of the other, that they did not hinge one upon another, ai when the words "course continue:
din the answer to the 12th eng meant the course upon which the going at the n, and that they had no reference to the course mentioned to a previous enquiry. It there was here a qi of law to be decided as to.the contract tion to be put upon the Preliminary Act. Upon that ground, and upon that ground alone, he thought that leave to appeal ought to be granted. As to the question of the difference of opinion between the Court and the Assessor, he might say that the differ-of opinion was not upon question of navigation, because as to that he should not have presumed under ordinary circum. stances,—certainly in this he should not have presumed to have given an opinion adverse to the opinion of the Assessor; but it seemed to him that the differ ico of opinion between himself and the As was a difference of opinion upon thee character of the plaintiff.
ory well and that the plaintiff might have considered the decision of the Court—and non-professional people 0 have thought that the decision of the Court affected his character ae a skilful pilot. Bat, as ho wald the other day, by the view the Court took of the construction it felt it ought to put on the Prelimiuary Act, great portion of the evidence was entirely: out out from the cou: ion of the Court Court felt that a grant portion of the evidence was useless, having duo regard to the decision giv the Prelimi Act. Whether the decision than given Was right or not would remain to. be ultimately seen; but there it was, that having regard to the census which considered ho was bound by, and having regard to the construction he put on the words "course continued," he felt he was actually debarred from n_of the evidence on bel wsinuch as it by' being contradictory to what tioned in the Preliminary Act, and that ho was, in fact, driven to outsider the ease fon very little more than the evidence given on belait of the defendant, He thought it right to say this on behalf of the plaintiff, that the decieto sion of the Court, as he bad anid before and ho thought any' lawyer would jane, was such that it did not affect art Was pre. portion of idence. Of it had considered that portion of the evidence there would have boon anth again oath, and the whole of the evidence would then have been considered. Under those circumstances, if the Court had decided against the plaintiff his character would have ery impeached, and doubly impeach!
veracity would' have been im, and his skill os navigator would have been impeached; but as the matt otood, the Court had to oot had said before, upon the evidence for the dofendant, and Having regard to the evidence of the defendant, the Court felt i the evidence of the plaintiff having been cut out from the consideration of the Court, to come to the conclusion it did, Mr, Robinson had resisted the pz tion on different grounds.
8 of the decision of the regard to the amount in dispute jing too trifling jow of an appeal. Where the Court considered that the question to be ultimately decided was a point of law, it did not pay much attention to the eum that was in debate between the parties. There was a question of some importance to be considered in the present aso upon the construction of Preliminary Acts. Then as to the terms Mr. Robinson suggested upon above leave to appeal should be granted, first term was thet the defendant should be at liberty to a the decree or order as is costs, without p to Her Majesty in Council. This him impossible. It appeared to him that if he was to grant leave to appeal on such a condition it would be unbecoming, at least it would be a miatale to attempt to prescribe tie terms upon which their Lordships should hear the appeal; therefore if leave to appeal were granted it' would not be granted on thi terms, The only question was whether pi giving an undertaking not to he should grant it on the terms of the
object to' the defendant disputing—that portion of the decree which deprived him of costs. Upon consideration he came to the conclusion that was a term which should
Text read from the printed page and cleaned; old type leaves the occasional error.