1842. CAMERON v. FRASER. the estate and the property of minors, have a right to be considered as having a preferential claim against the whole property of Lewis Cameron, who was one of the persons against whom that suit was brought, and who appears to have intromitted with that estate, and it must be taken, upon the face of those proceedings, to have appropriated thereby to his own use the property belonging to the minors. Assuming that this argument is to all intents and purposes correct, and that in virtue of the decisions of the Court below, and of this Court, the Respondents would be generally entitled to have such a lien, or tacit hypothec, as it is called, from the date and period of the commencement of their guardianship, their Lordships are of opinion that that circumstance in no degree whatsoever militates against the claim of the present Appellant, because in looking at this case, in the first place, their Lordships see that the Court below, if they had been disposed to pronounce for the tacit hypothec, has not considered that circumstance, as in any degree pre-empting the present Appellants from having their claim under the deed of April 1819, for the repayment of the purchase-money and interest, and their Lordships are clearly of opinion, that if that tacit hypothec form no objection to the Appellants' receiving their purchase-money and their interest under that Deed, such tacit hypothec, if it exist, is equally inoperative as a bar or objection to the Appellants' right to the damages which they considered a part of the purchase-money and interest. This then disposes of the first objection which has been raised, and there appears to be only one other matter which requires any notice by their Lordships. It has been contended in this case that the Appellant is pre-empted from his Appeal in consequence of not Now then, first, it is clear that according to every construction which possibly could be put upon the passage which I have read, this Order of the Court did not purport to be a definitive sentence; and then the next question would arise, that if not a definitive sentence, whether it was an interlocutory order, having the force or effect of a definitive sentence, and supposing it to have such force and effect, whether the consequence would be, that not having appealed from it, the Appellant would now be pre-empted from asserting this Appeal. Their Lordships are of opinion in the first place, that there is nothing to induce them to come to the conclusion that it can be called an interlocutory order, having the force or effect of a 1842. CAMERON v. FRASER. 1842. CAMERON v. FRASER. definitive sentence. The meaning of those words perhaps it is unnecessary to enter into, particularly upon the present occasion; but the real purport and effect of them must be to all intents and purposes as conclusive of the whole rights of the parties as a definitive sentence itself, to the extent it goes, and their Lordships see no reason to think that upon the present occasion any such interpretation can be put upon it. But there is also another part of the case, which is one of very great importance. It does not at all follow with respect to those Appeals that come from Courts practising according to the Civil Law, that because you have a right to Appeal from an interlocutory order or Decree, that therefore you are bound to avail yourself of that right of Appeal, and it would be attended with very great inconvenience if the contrary rule was established, because the evil of it would be, that in all those cases of the description of which this is, upon every little order being made which possibly might have the effect of ultimately concluding the case, you would have an Appeal here, and the delay that would interpose would perfectly frustrate all the purposes of an Appeal. Upon these grounds, then, their Lordships are of opinion, that they must reverse the sentence of the Court below, and pronounce for the Appeal; but they are desirous, in order to prevent any further difficulties arising, that the Counsel should submit to their Lordships a minute of what they desire to be done, to enable them to make the Order as clear as possible. In accordance with their Lordships desire, the Appellant's Counsel submitted the minutes of the Order, wherein, after the reversal of that part of the sentence of the Court below, which rejected the further claim and demand of the Appellants, they suggested a reference of the accounts to the sworn Accountant of the district of Berbice, to settle and adjust the balance due to the Appellant under his mortgage-deed, including the bills in question, with damages, charges and interest; such damages to be computed at the rate of twelve and a-half per cent.,—which, being approved by their Lordships, was ordered accordingly. 1842. CAMERON v. FRASER. ON APPEAL FROM THE HIGH COURT OF s. 55, does not owners and THIS was originally a cause of damage, civil and 11 Feb. 1842. maritime, promoted in the High Court of Admiralty of The 6th Geo. England, by Richard Isemonger, the Respondent, the IV., c. 125, sole owner of the schooner Littlehampton, against James exempt the Stuart, the Appellant, the owner of the ship Diana, masters of arising from the collision of the Diana, when on her vessels having voyage from Barbadoes to London, with a cargo of sugar, having Richard Russell, a duly-licensed Cinque Port pilot, on board, with the Littlehampton, when on * Present: Lord Wynford, Lord Brougham, Lord Campbell, and Mr. Justice Erskine. incompetency, or incapacity of the pilot. a licensed pilot on board, from liability in respect of damages done by their ves sel, unless the damage was solely caused by the neglect, default, Where, therefore, it was proved that the accident happened through the carelessness of the master and crew, as well as the pilot, in not keeping a good look-out; the Judicial Committee of the Privy Council held, affirming the sentence of the Admiralty Court, that the civil liability of the owner in respect of damages continued. 1842. STUART v. ISEMONGER. The Diana. her voyage from Sunderland to Worthing, with a cargo of coals. The collision occurred in that part of the Channel called the Gull Stream, between Ramsgate and Broadstairs, on the morning of the 5th of September 1838, whereby the Littlehampton sustained so much damage that she shortly after sunk. The act on petition alleged that the accident was wholly occasioned by the fault of the Diana, in not altering her course, and in not keeping a good look-out. In reply to the act, it was denied by the owners of the Diana, that no good look-out was kept on board their vessel, and insisted that the damage was occasioned by the Littlehampton; and that even if the accident had been caused by the neglect or incapacity of any one on board the Diana, that the same was and could only be attributable to the pilot, inasmuch as the Diana at the time was in the sole charge of a duly-licensed pilot, and that all his orders were duly obeyed by the man at the helm and the rest of the crew; that the said pilot, having been taken on board under the provisions of the Act 6 Geo. IV., c. 125, by reason of the premises, the owners of the Diana were not answerable for the damage. The Judge of the Admiralty Court (the Right Hon. Dr. Lushington), assisted by two Trinity Masters, by his sentence (a), bearing date the 12th of February 1840, decreed for the claim of the Respondent, on the grounds that the accident was solely occasioned by the fault of the persons on board the Diana, and that, as the accident was occasioned by the joint misconduct of the pilot and crew, that the liability still attached to the owner of the Diana. From this sentence the present Appeal was brought. (a) Reported 1 W. Robinson's Adm. Rep. 131. |