Page:Federal Reporter, 1st Series, Volume 3.djvu/533

526 Dr. Lushington then proceeded to notice certain objections which were raised against the course of proceeding sought to be pursued, one of which was that the court was precluded by the sentence of the privy council from making any alteration in the original decree; and, secondly, that the cross-action had not been prosecuted, and that there was no agreement on the part of the owners of the Harriet that the two actions should depend upon the decision which had been pronounced. Passing over what is said in relation to the first objection, the opinion proceeds: "The second objection that has been raised presents, I must confess, a much greater difficulty, and I do not exactly see how I can deal with the second suit," (by which is meant the cross-action which had been instituted in behalf of the Seringapatam,) "which has been abandoned as an existing suit, and say to the owners of the Seringapatam, 'you shall have the benefit of a decree,' which, in point of fact, has never been pronounced in their favor. The difficulty, it is true, is created by the peculiar circumstances of the case itself, and if I could have foreseen the result of the proceedings before the trinity masters, I would certainly have made some arrangements at the time to meet the circumstances of the case, for I never will be induced, unless compelled by law, to further the commission of an injustice towards either party upon a mere matter of form. Taking all the circumstances of the case into my consideration, the course which I shall adopt is this: I shall not depart from my original decree, but shall confine the reference to the registrar and merchants to the amount of the compensation to which the owners of the Harriet are entitled. At the same time, I shall not permit the full amount of that compensation to be paid to them, unless they submit to the deduction of a moiety of the damages sustained by the owners of the Seringapatam."

It thus appears that, although, in view of the peculiar attitude of the case, Dr. Lushington refused to change the form of the original reference, or to depart from the original decree, he nevertheless required the owner of the Harriet to submit to the deduction of a moiety of the damages sustained