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![handle is hein.slavery/ssactsengr0288 and id is 1 raw text is: TOBIN V. THE QUEEN
defendants were not proved to have employed the tug in any way, and were not
responsible for damage caused by her,-fourthly, that, admitting the tug was in the
common employ of the plaintiffs and defendants, the defendants were not on the
above facts by law liable to the plaintiffs for an act of negligence committed by the
tug while in such common employ,-fifthly, that there was no evidence of the commis-
sion of any act of negligence or misconduct by any person, but the damage resulted
from pure accident,-sixthly, that the occurrence happened because and while the
defendants' vessel was obeying the directions of the harbour-master within the limits
of his jurisdiction, and that the defendants were not liable,-seventhly, that the tug
was the agent of the Venilla, and in her employ, and consequently the defendants
could not by law maritime be liable for the act of the tug, but that the damage must
remain where it fell.
The learned judge, however, refused to nonsuit, holding that, on the above facts,
the defendants were liable; and a verdict was given for the plaintiffs for the amount
claimed.
The question for the opinion of the court is,-whether the above facts disclose
any liability whatever against the defendants in the said action, or whether the judge
ought not to have nonsuited the plaintiffs.
Should the court decide that the plaintiffs ought to [504] have been nonsuited, then a
nonsuit was to be entered accordingly, with costs, including the costs of this appeal (a):
but, if the court should think that the defendants were liable, then the verdict was to
stand, and the appeal be dismissed with costs;
Philbrick, for the appellants, was stopped by the court.
Prentice, for the respondents. The only question is whether there was any evidence
which could be left to a jury of negligence on the part of the defendants, not whether
the evidence warranted the finding; for, that is not the subject of an appeal. It is
submitted that the bare fact of the defendants' schooner being with their permission
towed astern of the plaintiffs' brig, was strong evidence of negligence. The defendants
are not the less liable because the owner of the tug may be liable also.
ERLE, C. J. The learned judge of the county-court has left it to us to say whether
the facts stated in the case disclose any liability whatever against the defendants. I
am of opinion that they do not disclose any liability whatever. The facts are in sub-
stance these :-The plaintiffs' brig was being towed by a steam-tug into Faversham
Creek. The person in charge of the tug took another vessel in tow astern of the
plaintiffs' vessel. In going in, the plaintiffs' vessel by some means went aground; and
the defendants' vessel, which was five or six fathoms behind the plaintiffs' vessel,
struck against and injured her. I cannot say that this was the result of negligence
on [505] the part of the defendants, unless they omitted to do something which they
might and ought to have done to avoid the collision. I know of nothing they could
have done: and the learned judge of the county-court suggests nothing. The appeal
therefore must be allowed.
WILLIAMS, J. I am entirely of the same opinion.
WILLES, J. I am of the same opinion. If it was negligence to tow a second
vessel astern of the first, there is no statement in the case that the master of the
plaintiffs' vessel made any objection to its being done.
BYLES, J., concurred.
Judgment reversed, with costs.
TOBIN AND ANOTHER, Suppliants, v. THE QUEEN. June 11th, 1863.
[S. C. 32 L. J. C. P. 216; 8 L. T. 392, 730; 9 Jur. N. S. 1130; 11 W. R. 701, 915;
2 N. R. 359. For subsequent proceedings see 16 C. B. N. S. 310.]
It is competent to the Crown (without leave) to plead and demur to a petition of right
under the 23 & 24 Vict. c. 34,-there being nothing in that statute to take away
the prerogative right of the Crown to plead double.-And the whole of the allega-
tions in the petition may be put in issue by a general traverse,-though, semble that
(a) These in this court follow the event: see Schroder, App., Wvard, Resy., ante,
vol. xiii., p. 410.
14 C. E. (N. 8.) 504.
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