Holderness and Another, Assignees of Foxton, against Shackels
| Jurisdiction | England & Wales |
| Judgment Date | 14 November 1828 |
| Date | 14 November 1828 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 1170
IN THE COURT OF KING'S BENCH.
S. C. 3 Man. & Ry. 25; Dan. & Ll. 203; 7 L. J. K. B. O. S. 80. Applied, Green v. Briggs, 1827, 6 Hare, 402.
[612] holdeknbss and AisfOTHEK, Assignees of Foxton, against shackels. Friday, November 14tb, 1828. A., B., and C., together with others, were part-owners of a ship engaged in the whale fishery. The usual mode of managing the cargo was, that on the arrival of the vessel at her homeward port, the whalebone was taken into the possession of B., and sold by him, and the proceeds were applied towards the discharge of the expenses of the ship. The blubber was deposited in a warehouse rented of C. by the owners of the ship, and the oil produced from it was then put into casks, each owiier's share being weighed out, and placed separately in the warehouse, in casks marked with his initials.. After the division, the practice was for the warehouseman to deliver to the order of each part-owner his share of the oil, unless notice was given by the ship's husband that the part-owner's share of the disbursements had not been paid. In that case, the warehouseman used to detain the oil till the ship's husband's demand had been satisfied. The ship having arrived from her voyage in 1825, the above course was followed. The share weighed out and set apart for A. was twenty-nine tons, which was stowed in the warehouse in casks, which had A.'s initials put on them. In January 1826, A. became bankrupt. Twenty tons of the oil had been delivered to A, before his bankruptcy ; the remaining nine tons remained in the warehouse at the time of his bankruptcy. In January 1826, the warehouseman had orders from C., the ship's husband, not to deliver to A. the remaining oil, as his share of the disbursements of the ship had not been paid : Held, in an action of trover brought by the assignees of A. against C., for the residue of A.'s oil, that the other part-owners had originally a lien on it for his share of, the disbursements of the ship, and that this right was not d.evested by the separation of A.'s share from the residue, and placing it in casks marked with his name. [S. C. 3 Man. & By. 25; Dan. & LI. 203; 7 L. J. K. B. O. S. 80. Applied, Green v. Briggs, 1847, 6 Hare, 402.] Trover for twenty tons of whale-oil, of the value of 10001. The first count of the declaration alleged the property to belong: to the bankrupt before his bankruptcy ; second count stated the property to be in the plaintiffs, as his assignees. Plea, general issue. At the trial before Bayley J., at the last Spring Assizes for the county of York, a verdict was found for the plaintiffs, damages 2201. 10s., subject to the opinion of this Court on the following case: The plaintiffs were the assignees of Foxton, under,a commission dated the 2d of May 1826, and their title to sue in that character was fully proved. The bankrupt Foxton, jointly with one Locking and the defendant^ and some other persons, was part-owner of the ship "Jane," a vessel belonging to Hull, engaged in the whale fishery. Locking was the ship's husband. The usual mode of managing the cargo was as follows: On the arrival of the vessel at Hull from the fishery, the whale-[613] bone was taken into the possession of Locking, and sold by him for the part-discharge of the expenses of the ship. The blubber was landed and deposited in a yard belonging to the defendant, in which were several warehouses, each of which was appropriated to a particular ship. One of these was rented from the defendant by the owners of the ship "Jane," and appropriated exclusively to that ship. The blubber was boiled in a boiling-house in the yard by one Gilehrist, employed at the defendant's yard as foreman, and paid by the owners of the several ships; and for this a certain price per ton was charged by the defendant. The blubber being then reduced into the shape of oil, was put into casks: each part-owner's share was then...
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