Gammell and Others v Sewell and Others
| Jurisdiction | England & Wales |
| Judgment Date | 15 May 1860 |
| Date | 15 May 1860 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 1371
IN THE EXCHEQUER CHAMBER.
S C. 29 L. J. Ex 350; 6 Jur (N. S) 918; 8 W. R 639, 2 L T 799. Referred to, Lloyd v. Gurbert, 1865, L. R. 1 Q. B. 125; The Empire of Peace, 1869, 39 L. J. Adm. 15, 21 L. T. 763, Castrique v. Imrie, 1870, L. R. 4 H. L. 429, Vadala v. Lawes, 1890, 25 Q. B. D. 316, Dulaney v. Merry, (1901) 1 K. B 536. Applied, Alcock v. Smith, (1892) 1 Ch. 238
[728] in the exchequer chamber. (Error fiom the Court of Exchequer ) gammell and others o. sewell and others. May 15, 1860.-If personal chattels are sold in a manner binding according to the law of the country in which they are disposed of, that disposition is binding in this country -A cargo of deals was shipped on board the Prussian vessel " Augusta Bertha," by Russian merchants at Onega, for an English firm carrying on business at Hull. The vessel struck on the rocks on the coast of Norway, but the cargo was landed safely A survey was held, when the surveyors recommended, as best for all parties, that the ship and cargo should be sold, and the cargo was sold accordingly. It appeared that, by the law of Norway, though the captain might not under such circumstances be able to justify the sale as between himself nnd the owners of the cargo, an innocent purchaser would have a good title to the property bought at such sale. Held, by the Court of Exchequer Chamber, that the sale in Norway bound the property, and that the goods having afterwards come to this country, the owner claiming under such sale had a good title to them as against the underwriters to whom the cargo had been abandoned. Byles, J., (a) Before Cockburn, C. J., Williams, J., Crompton, J., Willes, J, Byles, J., and Blackburn, J. 13f2 CAMMELL V. SEWELL 5 H. & N. 729. dissentiente.-Per Cockburn, C J., that though the goods were the property of English owners, yet as they never were on board a British ship, and never reached British territory, the law of England never attached to them, and therefore could not apply to the case. [S C. 29 L. J. Ex 350; 6 Jur (N. S ) 918 ; 8 W. B 639, 2 L T 799. Referred to, Lloyd v. Gvdett, 1865, L. R. 1 Q. B. 125; The Empue of Peace, 1869, 39 L J. Adm. 15} 21 L. T. 763, Castnqiie v. Mne, 1870, L. R. 4 H. L. 429 , Vadalav. Lawes, 1890, 25 Q. B. D. 316, Dulaney v. Metry, [1901] 1 K. B 536. Applied, Alcock v. Smith, [1892] 1 Ch. 238 ] This was a proceeding in error upon the judgment of the Court of Exchequer on a speeial case, the material facts of which are stated in the report in the Court below, 3 H. & N. 617. Bovill and Milward argued for the plaintiffs, and Wilde (with whom was Honyraan), for the defendants, in Hilary Vacation, Feb 9, and Michaelmas Vacation, Nov. 29 & 30, 1859, before Cockburn, C J, Wightman, J., Williams, J , Crowder, J . and Byles, J. Crowder, J., having died, the case was re-argued before Cockburn, C. J , Wightman, J., Williams, J., Crompton, J, Byles, J , and Keating, J., in Hilary Vacation, Feb. 9, 10 and 11, 1860 Arguments for the plaintiffs When the vessel struck on the coast of Norway, and the gooda were landed there in safety, the captain was in possession of the cargo without [729] any power to sell it By the abandonment the captain became the ageit of the underwriters, but only with the same general rights and authorities as he would have had in regard to the owners ; Story on Agency, s 118 Therefore acting for the underwriters, he had no power to sell. The sale was not validated by the judgment of the Diocesan Court That judgment was procured by fraud. [Coekburn, C. J. If the Court in Norway has been deceived the lemedy is in that Court.] The only question before that Court was whether the sheriff ought to have sold. [Coekburn, C J. Looking at the title of the cause and the prayer (see 3 H. & N 624) it appears that was not so.] The question was not to whom the goods belonged, but whether a certain public officer had acted rightly There is a difference between a judgment upon the general law applicable to a case of this sort and one which proceeds upon the local law The Norwegian law declared by the Diocesan Court only binds Norwegian subjects, or the goods while in Norwegian territory [Cockburn, C. J Suppose merchandize belonging to English subjects had been confiscated and sold under the revenue laws of France, if the goods came back to England could they be claimed by the original owners'] It is submitted that they could. The judgments of prize Courts are of force, because they proceed on principles recognised by the general law of nations. But it does not follow that the local laws or ordinances of particular states are binding on the subjects of other nations Story's Conflict of Laws, s 546 In Buchanan v. Ritcker (9 East, 192, 194), Lord Ellenborough said:-Supposing that the law of Tobago " had said in terms that though a person sued; in the island had never been present within the jurisdiction, yet that it should bind him upon proof of nailing up the summons at the Court door, how could that be obligatory on the sub-[730]-jects of other countries 1 Can the island of Tobago fmss a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction 1" In Story's Conflict of Laws, ss 286 b. 376, 379, 380, many authorities are cited to shew that the right and disposition of moveables is to be governed by the law of domicil of the owner. [Cockburn, C. J There is an exception whece there is some positive or customary law of the country, where the property is situate, applicable to the case. In Story's Conflict of Laws, sect J83, it is said, "It follows as a natural consequence of the rule we have been considering (that personal propeity has no locality), that the laws of the owner's domicil should in all case determine the validity of every transfer, alienation or disposition made by the owner, whetier it be inter vivos or post mortem. And this is regulatly true unless there is some positive or customary law of the country where they are situate providing for special cases (as is sometimes done)," &c. In sect 384 it is said, " Subject to the exceptions of this and the like nature (such as the statutable transfer of ships and of goods in the warehouses or in the docks of a government, &c.) the general rule is that a trapsfer of personal property, good by the law of the owner's domicil, is valid, wherever else the property may be situate. But it does not follow that a transfer 5 ffi & H 731. OAMMELL V. SEWELL 1 373 made by the owner" (to which I may add, or his agent) "according to the law of the place of its actual situs would not as completely devest his title."] The classes of property referred to by Story are property either voluntarily placed by its owner, or necessarily existing only, in the foreign country The instances he gives of goods in doeks and warehouses, and stock in the public funds, shew this. The rule would not apply to property coming to a foreign country against the will of the owner, as the cargo of a ship wrecked on its coast It was said by Lord Loughborough, in delivering [781] the judgment of the Court in Sill v. Wmiwuk (1 H Black 660, 690), that personal property is " subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it either by suecessioB or the act of the pai ty, it follows the law of the person The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession . . . The condition of a bankrupt by the law of this country is that the law, upon the act of bankruptcy being committed, vests his property, . . . and takes the administration of it by vesting it in the assignees, who apply that property to the just purpose of the equal payment of his debts. If the bankrupt happens to have propeity which lies out of the jurisdiction of the law of England, if the country in which it lies proceeds according to the principles of well regulated justice, there is no doubt but it will give effect to the title of the assignees. The determinations of the Courts of this country have been uniform to admit the title of foreign assignees." Clausen, the purchaser, whom the defendants represent, knew that he was dealing with the captain. The captain's authority depends on the presumed mandate, which must be regulated, not by the law of Norway, but by that of his own country . Lord Stan's Institutes, by Brodie, vol 2, p 956. [Crowder, J. The effect of the auction is similar to that of a sale in market overt ] A sale in market overt may be good by the law of the place where the sale was held, but would have no extra-territorUl effect in devesting the property of the hue owners Nor can the judgment of the Diocesan Court, which proceeds, not on the general law, but on the particular law of Norway, bind the property except iu Norway. [732] The reasoning of Dr. Luahmgton throughout the case of The Segredo, otheiuue the Ehza Cornish (1 EccL & Adm 36), is in point for the plaintiffs. At page 57 he says, "I know of no right which the purchaser of a ship in a foreign country, such ship not belonging to a subject of that country, has to call for the interposition of the lex loci contractus, save indeed in one case only, where the title is derived from the decree of a competent Court administering the law in its own jurisdiction, and by its decree conferring a title. Now, had the ship been purchased under the decree of a Court of Admiralty directing her to be sold, in a case within its jurisdiction, or the law of a Court resembling our own Court of Exchequer, I should have hesitated long before I disputed that title " It is incumbent on every person seeking to establish title under a sale by the master of a vessel to ascertain the extent of his authority. It is that which...
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