ship, and the proceedings were in rem, they would have no defence to the action. It was said that it was unreasonable that the defendants should be compelled to pay damages occasioned by persons for whom they were not legally responsible without a remedy over. It is not necessary for me to decide now whether a maritime lien attaches under the circumstances which have been suggested; it is enough for me to say that for the purpose of this summons I assume that the contention of the owners of the Jacob Christensen is right upon that point. They say that, "if we are obliged to pay damages to the Mid Surrey for the negligence of persons employed by Messrs. Edwards and Sons, we ought to have a right against Messrs. Edwards, so that we may recover from them those damages." With reference to that, the matter I have to consider is not whether there may or may not be a right of action on the part of the owners of the Jacob Christensen against Messrs. Edwards, but whether they are entitled to contribution or indemnity over against Messrs. Edwards within the meaning of Order XVI., r. 48. I have come to the conclusion that they are not. My decision is based upon the meaning of the word "indemnity" as used in the order in question; it has been held to mean indemnity arising out of a contract express or implied, and, without saying whether in the case supposed the owners of the Jacob Christensen would or would not have a right to sue Messrs. Edwards, there is nothing to create a right to an "indemnity" within the meaning of the word as used in the rule I have referred to. I think that rule means that the indemnity relied upon must arise out of some contract express or implied, and it is clear that the contract with Messrs. Edwards was not a contract which involved an indemnity. For the convenience of the parties it was agreed that, if I arrived at that conclusion, I should set aside the order made to bring in Messrs. Edwards as third parties, because it is useless to continue them as third parties unless some direction is given to determine the mode of proceeding. In the result, therefore, I affirm the registrar's refusal to give directions, and set aside the order making Messrs. Edwards third parties.

Solicitors for the plaintiffs, Waltons, Johnson, Bubb, and Whatton.

Solicitors for the defendants, Thomas Cooper and Co.

Solicitors for the third parties, Hollams, Sons, Coward, and Hawksley.

May 27 and 28.

(Before BRUCE, J.)

THE HEREWARD. (a)

Ship-Co-ownership-Sale against majority of owners-Admiralty Court Act 1861 (24 Vict. c. 10), s. 8.

The majority of the co-owners of a ship, by constituting themselves a limited liability company, made it impossible for the ship to be profitably employed in the general interests of the owners, unless the dissenting minority of the owners consented to come in to the company.

On motion by the minority, in an action of restraint, for the sale of the ship,

(a) Reported by BASIL CRUMP, Esq., Barrister-at-Law.

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Held, that the majority of the owners had no right to change the character of the ownership without the consent of all persons concerned, and therefore the court would exercise its discretionary power under sect. 8 of the Admiralty Court Act 1861, and decree the sale of the ship.

MOTION.

In this case William Inglis and others, who were a minority of the owners of the ship Hereward and plaintiffs in an action of restraint against the majority of the owners of that vessel, moved for an order for the appraisement and sale of the Hereward. Mr. John Potter, managing owner of the ship and holder of thirty-eight sixty-fourth shares therein, died on the 13th Aug. 1894. In Feb. 1895 his executors, on behalf of the beneficiaries, formed the Hereward Sailing Ship Company Limited, and transferred the shares of the deceased to the company. The plaintiffs, who owned twenty-four sixty-fourth shares, alleged that the transfer had been made without their knowledge or consent, that their liability had been increased, their shares rendered unsaleable, and the profitable sailing of the ship in the interests of all parties made impossible.

Sect. 8 of the Admiralty Court Act 1861 provides that,

The High Court of Admiralty shall have jurisdiction to decide all questions arising between the co-owners, or any of them, touching the ownership, possession, employment, and earnings of any ship registered at any port in England or Wales, or any share thereof, and may settle all accounts outstanding and unsettled between the parties in relation thereto, and may direct the said ship, or any share thereof. to be sold, and may make such order in the premises as to it shall seem fit.

Aspinall, Q.C. and Laing in support of the motion on behalf of the plaintiffs.

The owner of the remaining two sixty-fourth shares was not represented.

Sir Walter Phillimore and Stokes for the company.

In addition to the cases cited in the judgment, The Marion (51 L. T. Rep. 906; 5 Asp. Mar. Law Cas. 339; 10 P. Div. 4) was referred to.

May 28.-BRUCE, J.-In this case I have come to the conclusion that I should decree the sale of the ship. I do so upon the ground that it seems to me to be beneficial to the interests of the parties generally that the ship should be sold. The majority of the owners have, by constituting themselves a limited liability company, made it impossible that the ship can be profitably employed in the general interests of the owners, unless the dissenting owners, the minority of the owners, agree to come into the company. In my opinion the managing owners of the ship, the majority of the owners of the ship, have no right thus to change the character of the ownership of the ship, except with the consent of all persons concerned. I am satisfied that the course taken by the majority must be ruinous to the interests of the holders of twenty-four sixty-fourths, unless they consent to come into the company. That the court possesses power to direct the sale is beyond question. It is true it has been given by a recent Act, but the reason why the power was given was because it was found that without that power the court was often unable to adjust disputes between

parties. No rules are given in the statute as to how this power is to be exercised. It is left entirely to the discretion of the court, but it is clear from the decision of Sir Robert Phillimore in the case of The Nelly Schneider (39 L. T. Rep. 360; 4 Asp. Mar. Law Cas. 54; 3 P. Div. 152), that that power may be exercised on the application of a minority of part owners, and it seems to me that, when part owners of the ship are unable to agree as to what is to be done with their common property, and there appears to be no way of preventing the sacrifice of the property except by a sale, then I ought to direct a sale. I was impressed by what Sir Walter Phillimore said as to the reluctance the court must always have in directing the sale of a man's property against his consent, and I agree that the court ought to be very reluctant in directing a sale against the majority of the owners; nor would it do so unless it were satisfied that it was to the interests of all concerned. In order to guide me in my discretion in this case I have tried to find some analogy in other branches of the law. One of the matters laid down by the statute which is to guide the discretion of the court is, that the majority of the owners are unwilling to purchase the interests of the minority. In the case of Pitt v. Jones (43

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L. T. Rep. 385; 5 App. Cas. 651) a sale was directed, and sanctioned afterwards on appeal by the House of Lords, on the application of only three-sixteenths of the owners of the property, on the ground that it was for the general interest. I do not mean to say that the case of the sale of real property is in all respects similar to the case of the sale of ships, but it has an analogy, and where I find that the statute has given general powers, I do not think I can be wrong in saying that the court may at least exercise that discretion where it is satisfied, as, in my opinion, in this case it is, that it is to the general interest of all persons that the property should be sold. At the same time, while I make such a decree, I think I might give time to see if the parties cannot come to terms. It may be that the majority of the owners may be willing to purchase the interest of the minority, and therefore I shall direct that the order lie in the registry for four days. Motion granted. Leave to appeal was given, but a settlement was afterwards arrived at.

Solicitor for the plaintiffs, Charles E. Harvey. Solicitors for the defendants, Downing, Holman, and Co.