Dickinson v Kitchen
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1858 |
| Date | 01 January 1858 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 293
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
Referred to, The Feronia, 1868, L. R. 2 Ad. & E. 72; Keith v. Burrows, 1876-77, 1 C. P. D. 732; 2 C. P. D. 163; 2 App. Cas. 636.
[789] joseph henry dickinson, Appellant, against william kitchen, Respondent, in the matter of an interpleader summons in the case of the said william kitchen against john ritson irving. 1858. The claimant, upon an interpleader summons in the county court as to his alleged title to a ship seized in execution upon a judgment against the registered owner, proved a previous mortgage of the ship to him by such owner for a loan, with a proviso in the mortgage postponing until a date subsequent to the seizure of the ship the power of sale vested in the mortgagee by sect. 71 of The Merchant Shipping Act, 1854 (stat. 17 & 18 Viet. c. 104), and that such mortgage was recorded in the register book oi the port of the ship's registration in the form prescribed by sect. 66 of the same statute; but it also appeared that there was no indorsement made on the certificate of registry according to the acquirements of stat. 4 G, 4, e. 41, sa. 35, 43, and of stat. 3 & 4 W. 4, c. 55, ss. 34, 42.-Held, upon appeal to the Court of Q. B., that the mortgage was not invalid either as a fraud againat creditors, or as not being according to The Merchant Shipping Act, 1854, on the ground of the postponement of the power of sale.-Held, further, that, even if the registration of the mortgage was imperfect by reason of the want of the 294 DICKINSON V. KITCHEN 8 EL & BL. 790. indorsement on the certificate, yet a judgment given by the county court upon the interpleader againat the claimant in favour of the execution creditor was erroneous; for the claimant became and was the owner of the ship by reason of the mortgage, and such common law incident to a mortgage is not abrogated by sect. 70 of The Merchant Shipping Act, 1854, which was intended to protect a mortgagee, taking possession of a mortgaged ship in order to make it available as a security, from liabilities that might otherwise attach upon him as owner of a ship in possession.-Semble, per Lord Campbell C.J., that the registration in the case was perfect without any indorsement on the certificate. [fieferred to, The Feronia, 1868, L. R. 2 Ad. & E. 72; Keith v. Burrow*, 1876-77, 1 C. P. D. 732; 2 C. P. D. 163; 2 App. Cas. 636.] This was a case stated on appeal from the county court of Cheshire, holden at Birkenhead. The statement of the case, so far as material to the present decision, was as follows. On the 6th of October, 1857, the plaintiff Kitchen obtained a verdict in an action against the defendant Irving in the county court of Cheshire, holden at Birkenhead, for the sum of 431. 4s. 2d., for work done by him as a shipwright on the ship " Thames " and other vessels of the defendant; and, on the 9th of October 1857, the "Thames," which was then lying in the [790] Birkenhead Docks, was seized in execution by the officers of the court for the sum of 481. 5s. 10d., being the amount of the said verdict aud costs. But the vessel, with all her tackle &c., was claimed by Joseph Henry Dickinson. Interpleader summonses issued to try the question of ownership; and the case came on for hearing on the 27th of October. At the hearing, the claimant relied upon a mortgage of the ship to him by the defendant Irving, bearing date the 14th of July 1857. It was further proved that the defendant Irving was, at the time of the seizure, the sole registered owner of the ship " Thames," as appeared by a certificate sealed with the seal of the Custom House at Liverpool, bearing date the 19th of October 1857. Other documents, which were produced at the hearing, were proved to be transcripts of the entries relating to the said ship as they appear in the Begister Book kept at the Custom House at Liverpool. There was no alteration in the management of the vessel, either at the time of the mortgage or afterwards, to indicate a change of ownership or possession: but the defendant Irving continued, as before, to give directions with reference to the ship, and was so employed on board at the time of the seizure. The mortgage above referred to in the case was a mortgage of the ship &c. for a loan of 23001., and was in the usual form, with the exception of a proviso contained in it that the power of sale vested in Dickinson, the mortgagee, by virtue of The Merchant Shipping Act, 1854 (17 & 18 Viet. c. 104), sect. 71 (a)1, should [791] not be exercised until the 14th of October, 1857. The entries above referred to in the Begister Book were the original entry, in the usual form, of the defendant Irving as owner of the ship "Thames," and an entry, dated the 20th of July, 1857, which was in strict compliance with sect. 66 (a)2 of The Merchant Shipping Act,! 1854, of the particulars of the mortgage of the ship to Dickinson. There was no indorsement on the certificate of registry, mentioned in the case. The case...
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