Castrique v Imrie
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 1860 |
| Date | 25 February 1860 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 1062
IN THE COURT OF COMMON PLEAS
S. C. 29 L. J. C. P. 321; 6 Jur. N. S. 1058. Reversed in Exchequer Chamber, 8 C. B. N. S. 405: the latter decision affirmed in the House of Lords, L. R. 4 H. L. 414.
COMMON BENCH REPORTS. New Series. CASES ARGUED and DETERMINED in the COURT of COMMON PLEAS, arid in the EXCHEQUER CHAMBER, in Easter and Trinity Terms and Vacations, 1860. By JOHN SCOTT, Esq., of the Inner Temple, Barrister-at-Lavv. Vol. VIII. London, 1861. [1] cases argued and determined in the court of common pleas, in easter term, in thk twenty-third year of the reign of victoria. The Judges who usually sat in Banco in this term, were,-Erie, C. J., Williams, J., Willes, J., and Keating, J. castrique v. imrie and another. Feb. 25th, 1860. [S. C. 29 L. J. C. P. 321 ; 6 Jur. N. S. 1058. Reversed in Exchequer Chamber, & C. B. N. S. 405 : the latter decision affirmed in the House of Lords, L. R. 4 H. L. 4H.] A., a British subject, and the owner of a British ship, whilst she was on a voyage transferred her to B. by a bill of sale. The master had in the meantime, while at Melbourne, drawn a bill for necessaries upon his owner in England, which the latter declined to accept, and which was dishonoured at maturity. The ship having in the course of her voyage touched at Havre, the holder of the dishonoured bill indorsed it to a French subject residing there, and the latter commenced proceedings against the master in the civil tribunal of that place, and against the ship, under the judgment of which court (affirmed on appeal) the vessel was sold,-B.'s claim to intervene as mortgagee being disallowed:-Held, that, inasmuch as the proceedings ;in the French court were in personam, and the liability of the ship only brought incidentally in question, the decision was not binding upon the English transferee.-Quaere, whether the courts of this country will give effect to a judgment in rem of a foreign court, which appears upon the face of it to have proceeded upoii an erroneous notion of the English law?-yuiere, to what extent the ship-registry aot, 8 & 9 Viet c. 89, is repealed by the 4th section of the 17 & 18 Viet. c. 120, so as to affect the title of a mortgagee whose bill of sale was not registered pursuant to the 37th section of the former act 1 This was an action brought by the plaintiff against the defendants for the recovery of a vessel called the "Ann Martin," together with the rigging, gearing, tackle, munitions, boats, and other furniture belonging thereto, and which said vessel, together with her said rigging, [2] &c., are described in this case by the name and description of "a, ship called the ' Ann Martin' and her appurtenances." The following case was, pursuant to a judge's order under the Common Law Procedure Act, J852, stated for the opinion of this court:- During the year 1853, and from thence until the 30th of November, 1854, John George Clans, a British subject, was the sole owner, and duly registered as such 10t 2 8C.B.(N.S.)3. CASTRIQUE V. IMRIE 1063 under the statute then in force relative to the registering of British vessels, of a ship culled the "Ann Martin" and her appurtenances. The said ship, during the time aforesaid was, and from thence continually has been and is, a British ship (except so far as the facts hereinafter stated may in the opinion of the court have at any time deprived her of the right to be considered a British ship), and duly registered as such in pursuance of the statutes for the time being iu force relating to the registering of British vessels. In December, 1853, the ship sailed on a voyage to Melbourne, in Australia, and from theiiee to Madras, in the East ludies; and William Benson, who was the master of the said ship during the said voyage, in course thereof, at Melbourne, drew a bill on the said J. G. Glaus, by the name and designation of George Glaus & Co., in favour of certain persons resident at Melbourne, and carrying on business at Melbourne by and under the name and designation of Levien & Stenitz, of which bill the following is a copy,- ".601 16 6. "Melbourne, 8th June, 1854. " At eight days sight pay this first of exchange (the second and third of same tenor and date unpaid) to the order of Messrs. Levien & Fitenitz, the sum of six hundred and one pounds, sixteen shillings, atid sixpence, for value received, and which place to account [3] of disbursements of the ship ' Ann Martin,' under my command. " W. benson. "To Messrs. G-eo. Glaus & Co., Liverpool." This bill was never accepted by the said J. G. Glaus, and was dishonoured at maturity, and remained unpaid at the time of the sale of the ship, as hereinafter mentioned. On the 30th of November, 1854, and whilst J. G. Claus was such owner and so duly registered as owner as aforesaid, J. G. Claus, by bill of sale under seal, made and executed in conformity with the provisions of the statute then in force relating to the transfer and registering oE British vessels, and reciting that one Thomas Harrison had agreed to discount for the said J. G. Claus a bill of exchange dated the 25th of November, 1854, drawn by the aaicl Thomas Harrison upon and accepted by J. G. Claus, payable six months after date, for 40001., and that it had been agreed that the payment thereof, or any renewal or renewals thereof which should be thereafter made, should be secured in the manner thereinafter mentioned, duly assigned aud transferred all his J. G. Claus's estate and interest in the said ship and her appurtenances to the said Thomas Harrison, his executors, administrators, and assigns, absolutely to and for his own use and benefit, subject to a proviso contained in the said deed, that, if the said J. G. Claus should at maturity pay the said bill, or any renewal or renewals thereof, that then the said deed should alsolutely cease and be void, but, if default should be made in payment as aforesaid, that then it should bo lawful for the said Thomas Harrison, his executors, &c., and he was thereby impowerecl, without any further concurrence of the said J. G. Claus, to absolutely dispose of the said ship and her appurtenances, and out of the proceeds thereof to [4] pay in the first place certain expenses in the said deed mentioned, and iu the next place to retain the amount of the said bill, or such part thereof as might remain unpaid, and certain interest and commission in the said deed mentioned, and to pay the residue of the said premises to the said J. G. Claus ; and subject also to a further proviso, that, until default should be made by the said J. G. Claus in payment as aforesaid, it should be lawful for the said J. G. Claus to hold and enjoy the said ship for his own use, and to receive the profits of the same, without any interruption from the said Thomas Harrison. At the time of the execution of the said deed, the said Thomas Harrison discounted the said bill of exchange for 40001., in pursuance of the agreement recited in the said ded. The said bill of sale was duly registered at Liverpool on the 2nd of December, 1854, and the said Thomas Harrison became and was registered as the mortgagee of the said ship and her appurtenances according to the provisions of the statute then in force relating to the transfer and registering of British vessels. On the 2nd of February, 1855, and whilst Thomas Harrison was wuch registered mortgagee as aforesaid, Thomas Harrison, by bill of sale under seal, made and executed in conformity with the provisions of the stiitute then in force relating to 1064 CABTRIQUE V. IMR1E 8 C. B. (N. S.) 5. the transfer aud registering of British vessels, and made in consideration that one Richard Emley discounted the said bill of exchange for 40001. for the said Thomas Harrison, duly assigned and transferred all his estate and interest in the said ship and her appurtenances to Richard Emley to and for his the said Richard Emley's own use and benefit ; and the said transfer to Emley was duly registered on the 3rd of Febiuary, 1855, and Emley became and was registered as the mortgagee of the ship and her appur-[5]-tenances according to the provisions of the statute then in force relating to the transfer and registering of British vessels. Richard Emley on the 9th of April, 1855, and whilst he was such registered mortgagee as aforesaid, by bill of sale under seal made and executed according to the provisions of the statute then in force relating to the transfer and registering of British veaeela, and in consideration of 40001. stated to have been paid by him to the said Richard Emley, assigned and transferred all his estate and interest in the said ship and her appurtenances to the plaintiff : but the same transfer to the plaintiff was not registered until the 13th of April, 1857, when the same was registered; and the plaintiff then became and was registered as the mortgagee of the said ship and her appurtenances, according to the provisions of the statute then in force relating to the transfer and registering of British vessels. On the llth of May, 1855, the said J. G. Glaus became and was duly adjudged a bankrupt ; and the said bill of exchange for 40001. was dishonoured at maturity, has never beeu renewed, and is still unpaid. On the 4th of May, 1855, the said ship with her appurtenances arrived at the port of Havre, in the French empire ; and thereupon, and after the said bill for 6011. 1 6s. 6d. had become due and dishonoured, Edward L. Behrends, then residing and domiciled in England, and the then holder of the said bill, indorsed the said bill to certain persons, being French subjects, residing and domiciled in the empire of France, and carrying on business under the name and style of Troteux & Co. ; and thereupon and whilst th&said ship was and remained in the said port of Havre, a suit was commenced and prosecuted by them against the said William Benson on the said bill in the court of the Tribunal of Commerce et Havre, aud against the said...
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