ADM.] ADMIRALTY COURT. THE MARIE JOSEPH. Reported by ROBERT A. PRITCHARD, D.C.L., Barrister-at-Law. Aug. 1, 2, and Nov. 8, 1864. THE MARIE Joseph. Bill of lading-Stoppage in transitu-Fraud-Boná fide transferee for value. A bill of lading is not, like a bill of exchange or promissory note, a negotiable instrument which passes by mere delivery to a bonâ fide transferee for valuable consideration, without regard to the title of the parties who make the transfer. Although the shipper may have indorsed in blank a bill of lading deliverable to his assigns, his right is not affected by an appropriation of the bill of lading without his authority, and if he have not authorised the transfer, a subsequent bonâ fide transferee for value cannot make title under it to the goods. Indorsees of a bill of lading accepted a bill of exchange in payment, and, as further security, deposited the bill of lading with the shippers' agent; but, having afterwards fraudulently obtained possession of the bill of lading, indorsed it to a bonâ fide transferee for value: Held, that the shippers had not thereby lost their right to stoppage in transitu. This was a suit under the provisions of the Admiralty Court Act 1861, s. 6, for breach of duty and breach of contract by the master, in respect of goods shipped on board the above-named vessel. On the 11th Feb. 1864, Walter Stericker, of Kingston-upon-Hull, as agent for Messrs. Maxwell and Dreossi, of Bordeaux, in France, agreed with Messrs. Scarborough and Tadman, of Kingstonupon-Hull, for the sale to them of sixty tons of linseed cake, they paying for the same by their acceptance at three months' date. The linseed cake was accordingly, on the 11th Feb., shipped at Bordeaux on board the Marie Joseph, owned and commanded by Jean Marie Gloahec. Messrs. Maxwell and Dreossi indorsed the bill of lading unto order or assigns, and drew a bill of exchange for the price of the linseed cake on Messrs. Scarborough | and Tadman, and forwarded both the bill of lading and the bill of exchange to Stericker, their agent. On the 16th Feb. 1864, Stericker brought both the bill of lading and the bill of exchange, and also a policy of insurance upon the linseed cake, to the office of Scarborough and Tadman. Mr. Scarborough, one of the members of the firm, accepted the bill of exchange, and thereupon Stericker delivered to him the bill of lading duly indorsed by Maxwell and Dreossi, together with the policy of insurance. A conversation then took place, in which some mention was made by Stericker respecting the implication of the firm of Scarborough and Tadman in the affairs of one David Moor, which affairs, since the preceding Christmas, it had been rumoured were embarrassed. Thereupon Mr. Scarborough said, "Let him (Stericker) keep the bill of lading." Accordingly Scarborough handed back the bill of lading and the policy to Stericker, and Stericker signed and gave to Scarborough a receipt for the same in the following terms: Hull, 16th Feb. 1864. Memorandum, that I have received of Messrs. Scarborough and Tadman, of Hull, a bill of lading and policy of insurance for about sixty tons of linseed cake, shipped ex Marie Joseph, dated at Bordeaux the 11th Feb. 1864, and which I hold as security against their acceptance of Messrs. Maxwell and Dreossi's draft for 4271. 18. 4d, due on the 14th May 1864, until the cakes are sold or the vessel arrives. WALTER STERICKER. On the 18th Feb. 1864, Mr. Walter Tadman, the other member of the firm of Scarborough and Tadman, called on Stericker, and stated to him that his [ADM. firm had sold the linseed cake to a Mr. Craysdale, who would accept a bill of exchange against the bill of lading, and Mr. Tadman asked for the bill of lading. Trusting to this representation, Stericker returned the bill of lading to Tadman; but the representation was untrue, as no such sale had taken place. On the same day, the 18th Feb., but shortly afterwards, Messrs. Pease and Co., the plts., who are bankers in Hull, sent a message to the office of Scarborough and Tadman, requesting one of the members of the firm to call upon them at the bank. It appeared that, on the 18th Jan. preceding, Messrs. Scarborough and Tadman owed the bank 1985, and were liable on bills which the bank had discounted, and which were running, to the extent of 4847, whilst the bank held security only for 8501. On the 18th Feb. the debt had been reduced to 1187, but the discount liabilities still amounted to 4000%. or thereabouts. Upon receipt of the message Mr. Tadman went to the bank, and took with him the bill of lading, and also some warrants for some rib grass. There he saw Mr. Arthur Pease, a member of the banking firm, who asked him to reduce the debt of the firm, but did not ask him for security. Tadman thereupon offered to him as a security the bill of lading, the policy of insurance, and the warrants, and this offer Mr. Pease accepted. Tadman then indorsed the bill of lading, and delivered it, with the other documents, to Mr. Pease, and a memorandum, in the usual form, was drawn up, to the effect that the documents were delivered as a security for advances then made, or which might afterwards be made, giving authority to the bank to sell the goods and place the proceeds to the credit of the depositors. This memorandum was not signed by Mr. Tadman, in consequence, as it is sworn, of a mere oversight. Mr. Pease also deposed that at the date of this transaction he did not know the history of the bill of lading, but assumed the bill of lading to be, as it purported, the lawful property of Scarborough and Tadman; that he had no suspicion that Scarborough and Tadman were insolvent or on the eve of insolvency, though he knew, through the banking account, that they were mixed up with the dealings of Mr. Moor. Mr. Moor did not become bankrupt till the 4th March. On the 7th March Scarborough and Tadman also stopped payment. On the 5th March, Messrs. Maxwell and Dreossi telegraphed to Stericker to stop the delivery of the linseed cakes, and announced that a bill of lading indorsed to Stericker would be sent by the same post. This was accordingly done, and on the 7th March Stericker received a bill of lading, being a duplicate of the one indorsed to Scarborough and Tadman, except that it was indorsed to him (Stericker). The vessel arrived in Hull on the 5th April. A water clerk came on board first, and told the captain that he thought two persons claimed the cargo, and advised him to be careful. He was shortly afterwards followed by Johnson, the clerk of the solicitors to the plts. Pease and Co., who presented the bill of lading held by the plts., and claimed the cargo. When it was first presented it was not indorsed by Messrs. Pease and Co., the plts.; in fact it was not indorsed till the 7th. On the same day, the 5th, but later, Stericker came eventually obtained possession of the cargo, the on board and presented his bill of lading, and captain receiving an indemnity from Maxwell and Dreossi. On the 9th April Messrs. Pease and Co. commenced this action against the Marie Joseph and her master, and on the 15th April an appearance was entered on behalf of the master. The evidence was taken vivâ voce before the court itself. ADM.] THE MARY ANN. [ADM. The Queen's Advocate and Clarkson appeared for | then that Tadman offered the bill of lading as the plts. Deane, Q. C. and C. P. Butt for the defts. a security. On these grounds, therefore, it seems to me clear that, if Scarborough and Tadman had, immediately on receiving the bill of lading, indorsed it to Pease and Co., the vendors would have lost their right to stop in transitu as against the lien of the bank. But there is another most important fact to be considered. The bill was returned to Stericker and obtained back from him by a fraudulent representation on the part of Mr. Tadman, and he, being so fraudulently possessed of it, transfers it to Messrs. Pease. In the case of Gurney v. Behrend, 3 Ell. & Bl. 633, Lord Campbell points out the distinction between a bill of lading and a bill of exchange. He says: "“Primâ facie the defts. had a right to stop the wheat on 2nd Feb., for it was still in transitu, and they were unpaid owners. The burden is upon the plts. to prove that they had become the owners, and that the right to stop in transitu was gone. For this purpose it is not enough that they had become bona fide holders of the indorsed bill of lading for valuable consideration. A bill of lading is not, like a bill of exchange or promissory note, a negotiable instrument which passes by mere delivery to a bonâ fide transferee for valuable consideration, without regard to the title of the parties who make the transfer. Although the shipper may have indorsed in blank a bill of lading deliverable to his assigns, his right is not affected by an appropriation of it without his authority. If if be stolen from him, or transferred without his authority, a subsequent bonâ fide transferee for value cannot make title under it as the shipper of the goods. The bill of lading only represents the goods, and in this instance the transfer of the symbol does not operate more than a transfer of what is represented." Applying this doctrine to the present case: the bill of lading was obtained back from Stericker by Tadman upon false representations-by fraud; it was then negotiated without Stericker's consent, or the consent of the vendor, and contrary to the understanding between Stericker and Tadman. This fraudulent conduct of Tadman, then, rendered invalid the indorsement to Pease and Co., and they, although quite innocent of any participation in it, must bear the consequences. I pronounce against the plts., of necessity, with costs. Dr. LUSHINGTON.-The case may at once be cleared of any difficulty occasioned by the second bill of lading indorsed to Stericker, as that bill was made and indorsed long subsequently to the indorsement of the first bill of lading by Tadman to the plts., and if Messrs. Maxwell and Dreossi had a right to stop in transitu, they did not, in order to exercise it, require another bill of lading. The question therefore is, whether Messrs. Maxwell and Dreossi had a right to stop in transitu as against Messrs. Pease and Co. the plts. If the first bill of lading, immediately upon the delivery of it to Scarborough and Tadman, had been at once indorsed by them for a valuable consideration to Pease and Co., without the intermediate processes of the bill being | returned by Scarborough to Stericker, and again returned by Stericker to Tadman, Messrs. Maxwell and Dreossi would have lost their right to stop in | transitu, as against the bank. This is clear upon the authority of Lickbarrow v. Mason, 5 Term Rep. 683, and 1 Smith L. Cas. 681, and other cases. The defts., however, without disputing (which would be impossible) the authority of that case, deny its applicability in the present instance. The argument is, that the indorsement to Pease and Co. of the first bill of lading was not an indorsement for valuable consideration. But I cannot doubt that the consideration averred by Messrs. Pease to cover, in a banking account, past advances and also advances in future, is, in the view of the law, a valuable consideration; and I know, from undoubted authority, that it is customary for bills of lading to be given to cover such banking accounts, and no suspicion exists as to the validity of such transactions. The cases cited have really no bearing on the present case. Reliance is placed on the case of Patten v. Thompson, 5 Maule & Sel. 351, and upon the rule which holds good even under the late Factors Acts, that a factor, known as a factor, cannot pledge goods entrusted to him as a security for past advances made to himself, such mode of dealing being plainly incompatible with his fiduciary character. In the present case the bill of lading was undoubtedly delivered as a security for such past advances. But Scarborough and Tadman were not factors, they were owners, and were dealt with as such by the bank. The same case of Patten v. Thompson, and the cases of Spalding v. Ruding, 6 Beav. 376, and Re Westzinthus and others, 5 B. & A. 817, plainly show that the pledge of a bill of lading as a security to a bank for past advances, if made by the owner, or by a factor with authority to make such pledge, takes precedence over the right of the vendor to stop in transitu. Another objection was, that this indorsement, if for valuable consideration, was neverthe-Held, that in such a case the High Court of Admiralty less invalid, because fraudulent against creditors of had no jurisdiction to entertain an appeal from the Scarborough and Tadman. But, to use the words magistrates' decision. of the judgment in Van Casteel and others v. Booker, 2 Ex. 691,"to defeat a payment or transfer made to a creditor, the assignees must show it to be fraudulent as against the body of creditors, by proving it to be voluntary on the part of the bankrupt, and in contemplation of bankruptcy; and if it is made in consequence of the act of the creditor, it is not voluntary." In the present case, it has not been shown that the indorsement of the bill of lading was made by Tadman in contemplation of bankruptcy. Mr. Pease swears he did not suspect the firm of Scarborough and Tadman to be insolvent; and it is shown that it was made in consequence of the act of Mr. Pease, for Mr. Pease pressed for a reduction of the debt of the firm, and it was only Deane, Q.C. and V. Lushington appeared for the Jan. 17 and Feb. 28, 1865. THE MARY ANN. Salvage-Appeal from magistrates—" Sum in dispute' The Merchant Shipping Act 1854, s. 464—Jurisdiction-Delay in taking objection. Upon an application to magistrates for an award of salvage, the plts. claimed the sum of 2001, but afterwards made a formal demand of 40l. : An objection to the jurisdiction of the court may be taken at any time during the progress of the cause. This was an appeal from a decision of two of Her Majesty's justices of the peace at Southampton, in a salvage claim brought by the owners and master and crew of the steam-tug Phoenix, against the abovenamed vessel, a brig of 213 tons. The value of the property saved was 16004, and the salvors claimed a sum not exceeding 2007., and subsequently made a formal demand for 401. The justices, after hearing the evidence adduced, adjudged that no salvage was due, and from their decision the present appeal was prosecuted. say The owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur without their actual fault or privity, that is to Where any loss or damage is by reason of the improper navigation of such ship as aforesaid caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat; be answerable in damages to an aggregate amount exceeding fifteen pounds for each ton of their ship's tonnage. Dr. LUSHINGTON.-This is an appeal from the award of two justices of the peace at Southampton, in an alleged cause of salvage. The owners of the ship have denied the jurisdiction of the court, on the ground that the sum in dispute did not exceed 50%, it being enacted by the 464th section of the Merchant Shipping Act that no appeal shall be al- Dr. LUSHINGTON.-Upon the assumed state of lowed unless the sum in dispute exceed 50%. The facts in this case several questions of law were term "sum in dispute" is a somewhat vague ex- raised, and especially that the co-owners of the pression, but would, in my opinion, have reference, master were not entitled to limited liability. But in a case like the present, to any specific sum that has, it is first necessary to consider what is the real in fact, been demanded and refused as a remuneration state of the facts, and whether the master was or for the services rendered. I lay out of my consider- was not a co-owner at the time within the meaning ation all loose expressions occurring in conver- of the statute. The state of facts appears to be this. sation between the master of the Mary Ann and the that Roulle Cary, the father of the master, owned master of the Phoenix; but it appears that the several shares in this vessel, and that, early in the Southampton Steam Towing Company, who are the year 1864, in order to enable his son to become plts. in this suit, made a formal demand for 401. It master, he transferred to him six shares. In the is true that the plts. might not, by sending in this month of July his son, by bill of sale, re-transferred demand, absolutely debar themselves from suing for to his father the shares, which bill of sale was not a larger sum; but they have not throughout the registered at the time of the collision. Then the proceeding ever demanded a sum exceeding 504 | question is-assuming the son to be on board and On the contrary, if when the parties went before to blame for the collision-whether he was a part the justices they demanded any specific sum, it was owner, as the bill of sale was not registered? The this sum of 40%. This, therefore, constitutes the sum solution of this question depends upon the meaning in dispute, and, it being under 50%, no appeal can be which the court must ascribe to the term "owners' entertained by this court. It has been contended in the 54th section of the Merchant Shipping Act that this objection is taken too late, but I apprehend Amendment Act 1862. If the court is bound by the that if at any time the court discovers, and the facts terms of that section to hold that it means regisshow, that the court has no jurisdiction, it cannot tered owners, whatsoever may be the circumstances proceed further in the cause. The delay of one or of the case, then the court must hold, of course, that both parties cannot confer jurisdiction. I must the master was an owner in respect of this collision. dismiss this appeal with costs. Very properly in the argument reference was made to many of the other sections of this Act, and, indeed, to prior Acts of Parliament; but I must confess that they throw but a very dim light upon the question I have to determine. Neither am I helped much by the fact that the former state of the law. which rigidly excluded all equitable interests, and held that nothing could be noticed which did not appear upon the registry, is now altered. The cases, too, which have been cited, though incidentally throwing some light upon the arguments raised, are not so pertinent to the present ques to deciding it. I bear in mind, however, though for tion as to afford me very material assistance as very different purposes, that the present state of the law does allow cognisance of equitable interests. The object of the statute clearly was, to relieve from limited responsibility those who, as owners of the ship, had the government thereof, and were entitled to the advantages arising therefrom, and exposed to the risk consequent upon navigation, provided always that those owners had not incurred any blame as to the collision in question. Negligence or misconduct would forfeit this, which I may call a privilege. Supposing one part owner alone to blame, it appears to me contrary to the principle on which that enactment is founded, to hold that his error or misconduct would affect the innocent coowners, for it is personal blame which is the ground of the forfeiture from limited liability. It must be recollected that co-owners of ships are not partners. I think that I am justified in giving to the word Jan. 28 and 29, and March 3, 1865. THE SPIRIT OF THE OCEAN. Limited liability-Registered owners-Liability of part owners. The owners of a ship who are entitled to the privilege of limited liability are not necessarily those whose names appear upon the ship's register. The master, also part owner of a ship, sold his shares, Held, that the master was not an owner so as to affect The Spirit of the Ocean, on the 22nd Nov., came into collision with the Robin Hood, whose owners and the owners of the cargo of the Robin Hood, having brought an action against the Spirit of the Ocean, the present action was brought for the purpose of asserting the right of the owners of the "owners" this latitude of construction, and that I am supported in this opinion by the judgment in Wilson v. Dickson, 2 B. & Al., though that judgment was passed not in a case of collision and upon a statute differently worded. The terms of the 53 Geo. 3, c. 159, s. 1, are both singular and plural: "That no person or persons who is or are owner or owners, or part owner or owners, of any vessel, shall be liable to answer for any damage arising by reason of any neglect without the fault or privity of such owner or owners." Those of the 504th section of the Merchant Shipping Act 1854 are singular only: "No owner of any sea-going ship, or share therein, shall, in cases where any of the following events occur without his actual fault or privity." Whereas those of the 54th section of the Merchant Shipping Act Amendment Act 1862 are plural only, viz.: "The owners of any ship, whether British or foreign, shall not, in cases where any of the following events occur without their actual fault or privity." But although this difference is found in the phraseology, it seems impossible to infer therefrom that the Legislature intended to impose upon one owner a new liability for the defaults of his co-owner. Whatever, therefore, my opinion might be with respect to Mr. Cary, jun., I should not hold that his co-owners were affected by his fault or negligence. A contrary opinion would, I think, be opposed to the spirit of the Act, and not reconcilable with justice. But with respect to Mr. Cary, jun., does the absence of registration compel me to consider him an owner within the meaning of the 54th section of the Merchant Shipping Act Amendment Act 1862? I apprehend that it is the duty of the vendee, and his interest also, to register his title, as without registration the vendee would not be entitled to the whole benefits of ownership. But apart from regis'tration, the execution of the bill of sale entirely divests the title of the vendor. Such is the case by the ordinary law of nations, and I think, too, by the municipal law of this country. Registration is but the record of a fact done-a record of the sale, not the sale itself; and though formerly, unless the record had been made, the law would not take cognisance of any interest in shipping, yet this was the law by virtue of statute only, and as the execution of the bill of sale then divested the interest in the vendor where not prohibited by statute, such would be the present state of the law, the statutory provision having now been repealed. I cannot doubt but that all the reasons upon which limited liability is founded apply to Mr. Cary, sen. equally with registered owners, and I see nothing in the Act to prevent me giving that construction to the 54th section. I pronounce for the limitation of liability, and give the costs occasioned by opposing it. Thursday, Jan. 26, 1865. (Before the Right Hon. Dr. LUSHINGTON.) Bottomry-Obsolete statute-Repeal. Mere non-user is not sufficient to repeal a statute, but the fact of non-user may be important in considering the question whether or no the statute has been repealed by implication. The 7 Geo. 1, c. 21, s. 2, which prohibits loans of money on bottomry of vessels designed to trade in the East Indies, has, since the other restrictions upon the East India trade have been removed, been repealed by impli cation. This was a cause as to the validity of a bottomry bond upon a foreign vessel engaged in the India trade. [MARI. CAS.-VOL. II.] [ADM. In Jan. 1859 the India, a Monte Video vessel, left Monte Video bound for Calcutta with a cargo of horses; and in February following, the vessel being, in the course of the voyage, in Table Bay, the master borrowed some money on bottomry from a British subject there; and on his arrival at Calcutta he gave another bond, in favour also of British subjects, and payable at the Mauritius. In the answer put in by the owner of the India it was alleged that both bonds were void, by reason of the 7 Geo. 1, c. 21, s. 2. The following is the section referred to : All contracts and agreements whatsoever... made by any of His Majesty's subjects, or any person or persons in bottomry on any ship or ships in the service of foreigners, trust for them for or upon the loan of any moneys by way of and bound or designed to trade in the East Indies, or parts aforesaid . . . shall be and are hereby declared to be void. (See also 19 Geo. 2, c. 37, s. 5.) moved the court to reject the answer. Deane, Q. C. and Clarkson, for the bondholders, V. Lushington for the owner. Dr. LUSHINGTON.-Though a British Act of Parliament does not become inoperative by mere nonuser, however long the time may have been since it was known to have been actually put in force, yet the fact of non-user may be extremely important when the question is, whether there has been a repeal by implication. What words will establish a repeal by implication, it is impossible to say. If, on the one hand, the general presumption must be against such a repeal, on the ground that the intention to repeal, if any had existed, would have been declared in express terms, on the other hand it is clear that it is not necessary that any express reference be made to the statute which is to be repealed. A prior statute would, I conceive, be repealed by implication if its provisions were wholly incompatible with a subsequent one; or, if the two statutes together would lead to wholly absurd consequences; or, if the entire subjectmatter has been so dealt with in subsequent statutes that, according to all ordinary reasoning, the particular provisions in the prior statute could not have been intended to subsist. Before the passing of the statute 7 Geo. 1, c. 21, the whole of the East India trade was a strict monopoly in the hands of the East India Company. Not only had there been a series of parliamentary charters, but foreign ships were further excluded from trading to British possessions in India by virtue of the Navigation Act, 13 Car. 2, c. 18. The statute of 7 Geo. 1, c. 21, confirms the monopoly, the title being "An Act for the further preventing His Majesty's subjects from trading to the East Indies under foreign commissions, and for encouraging and further securing the lawful trade thereof." The 2nd section contains several provisions for preventing any foreign trade, and, amongst others, it prohibits all contracts of bottomry by British subjects on ships in the service of foreigners. It is manifest the sole object of this prohibition is the protection of the monopoly. The relaxation of this monopoly was a gradual process, both as to place and person. The monopoly continued longer as to China than as to the East Indies, and excluded foreigners longer than British subjects, other than the servants of the company. British subjects, was effected by the 2nd section of The abolition, so far as it concerns the 3 & 4 Will. 4, c. 93 (an Act to regulate the trade to China and India), which declares that notwithstanding any provisions made for the purpose of protecting the exclusive rights of the trade theretofore enjoyed by the company in any Act of Parliament contained, it should be lawful for any of His Majesty's subjects to carry on trade with any countries beyond the Cape of Good Hope to the Straits of Magellan. Then, with regard to foreigners, in 1797 the statute of Geo. 3, c. 117, was passed, reciting the Navigation Act, and empowered the directors of the East India Company to admit foreign ships to trade to the East Indies, notwithstanding the statute. The Court of Directors exercised this power by issuing a regulation which provides, "that foreign ships belonging to every state or country in Europe or in America, so long as such states or countries respectively remain in amity with Her Majesty, may freely enter the British seaports and harbours in the East Indies, whether they come directly from their own country or from any other place, and shall there be hospitably received, and shall have liberty to trade there in imports and exports conformably to the regulations established or to be established in such seaports," and then follows a proviso that they shall not engage in the coasting trade. Since that period various other measures have been adopted to put the foreign trade of India on the same footing as the trade carried on in British vessels and by British subjects. By an Act of the Government of India the duties on goods imported or exported in foreign or British vessels were equalised, and by another Act the coasting trade of India was thrown open to foreign vessels on the same terms as to British vessels. The trade therefore to India is now as open to foreign as to British vessels. If that be so, not only have all possible reasons for the prohibition contained in sect. 2 of 7 Geo. 1, c. 21, of bottomry upon foreign vessels engaged in the India trade, ceased to exist, but the continuance of that statute would be inconsistent with the state of trade as established by subsequent statutes. I therefore am of opinion that the statute 7 Geo. 1, c. 21, s. 2, is repealed by implication. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and JAMES B. DAVIDSON, Esqrs., Barristers-at-Law. Dec. 8 and 9, 1864. (Before the LORD CHANCELLOR (Westbury.) Sale of a ship-Injunction-Costs. Defts., W. and Co., agreed, in consideration of the plts. accepting bills to a fixed amount (50001.) drawn by them, to place the plts. in funds to meet the hills out of the proceeds of ships and deals coming to W. and Co. from their foreign consignor, who was a shipbuilder. W. and Co. having received from their consignor a certificate of sale of a ship then on its way to them, applied to the deft. Y. for an advance on the ship by way of mortgage. Y. objecting, on the ground that the certificate did not authorise a mortgage, W. and Co. entered into a collusive sale of the ship to the deft. L., to whom Y., in ignorance of the private arrangement between W. and Co. and L., then advanced the required sum by way of mortgage. W. and Co., stopping payment shortly afterwards, plts. claimed a charge on the ship, and prayed to have a sale, or that they might be allowed to redeem, and that the amount of the bills might be paid out of the proceeds of sale; also, for an injunction against Y.: Held, that the plts., though they might have a right of action as against W. and Co., had no right to a charge on this particular ship; also, that they had no right to challenge the sale to L. and the mortgage to Y., unless they established a case of fraudulent collusion against themselves: Held, further, that as there was no proof that Y. had any knowledge of the plts.' equitable title, the charge [CHAN of fraudulent collusion with W. and Co., as against him, must fail, and injunction (which had been granted by Kindersley, V.C.) dissolved. Where an app. succeeds on appeal in having an order made against him in the court below dismissed with costs, it is a salutary and desirable rule that he should have the costs of the appeal, and the old practice in this respect may be considered to be abolished. This was an appeal from an order of Kindersley, V. C., whereby he granted an injunction at the suit of the plts., Messrs. Baring Brothers, restraining the defts. (except the deft. Mitchell) from mortgaging, selling, transferring, or otherwise dealing with a ship called the Smyrna, under the following circumstances. The deft. Peter Mitchell, who lived at Miramichi, in New Brunswick, in 1864 applied to the plts. and asked them to open a credit in favour of Messrs. George Wright and Co., of Liverpool (the firm under which the defts. Harris and Van Wart carried on business), and proposed that any advances the plts. might make should be secured by the proceeds of ships and deals to be consigned by Mitchell to Wright and Co. The plts. agreed to open a credit in favour of Wright and Co., to the extent of 5000, on receiving security on (as they alleged) all ships and deals to be consigned, as aforesaid, by Mitchell; and on the 3rd March Messrs. Wright and Co. wrote to the plts. as follows: Herein we inclose letters from Hon. Peter Mitchell, of Mira michi, requesting you to open a credit to extent of 5000% in our favour to be drawn for in bills at four months' date from time to time as we may require them. We hereby undertake to place you in funds to retire said bills at their maturity, out of proceeds of sales of ships and deals coming to us from said gentleman. Hoping to hear from you in confirmation of this credit,-We remain, yours respectfully, GEORGE WRIGHT and Co." The plts. upon this accepted four bills of exchange drawn upon them by Wright and Co., payable at four months each; two, dated 5th July 1864, for 15007. each; a third, dated the same day, for 10007.; and the fourth, dated 8th July 1863, for 10007. The Smyrna was a ship of which Peter Mitchell was the owner, and which, in Aug. 1864, had been sent by him to Wright and Co. for sale in this country. In Sept. 1864, Wright and Co. applied to the deft. Yates, who was the secretary and manager of the company called the Maritime Credit Company (Limited), for an advance upon the ship, which had not yet arrived. Yates, finding that the certificate of sale which had been sent by Peter Mitchell to the deft. Harris did not authorise a mortgage, refused to make the advance; whereupon Wright and Co. entered into an arrangement with the deft. Lockwood, who was in the employ of Cunard and Co., by which they purported to execute a bill of sale, dated the 21st Sept., to him for 3500%; and on the same day Lockwood mortgaged the ship to Yates for 22501. The names of Lockwood as owner, and Yates as mortgagee of the ship, were now upon the register. It appeared that Yates departed somewhat from the usual course of business in these matters, by insisting that the bill of mortgage from Lockwood to him should be indorsed by Wright and Co. In the early part of October Wright and Co. stopped payment. The plts., alleging that they had a charge on "all ships and deals to be consigned for sale" by Peter Mitchell to Wright and Co., and that Peter Mitchell intended that the proceeds of the sale of the ship Smyrna should be applied in providing for the bills, claimed to be entitled to a charge on the ship, and accordingly filed this bill for an injunction in the terms above. |