Langton v Horton
| Jurisdiction | England & Wales |
| Judgment Date | 09 June 1842 |
| Date | 09 June 1842 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 182
ROLLS COURT
S. C. on other points, 1 Hare, 549; 5 Beav. 9.
[464] langton v. horton. Feb. 8, 1841. [S. C. on other points, 1 Hare, 549; 5 Beav. 9.] Injunction to restrain proceedings in an issue at law, directed by a Judge of the Court of Queen's Bench, under the Interpleader Act. The Interpleader Act applies only to those cases where the opposite claims depend on legal rights, and not on matters peculiarly of equitable jurisdiction. By indenture of the 2d of March 1838, the Defendant George Burnie, who was owner of the ship "The Foxhound," then on her voyage to the South Seas, assigned the ship and tackle, and also all oil and head matter and other cargo which might be taught, or brought home in the said ship or vessel, on and from her then present voyage; and also the policies of assurance therein mentioned, and all muniments, writings, and papers relating to the said ship called "The Foxhound," unto the Plaintiffs, for securing the monies in the said indenture mentioned. 1BEAV.4M. LANGTON V. BOSTON 183 The assignment was produced to the proper officer of the port of London, and registered, but was not indorsed on her register, the ship being on her voyage. The ship returned, with a large cargo of oil, to England in January 1841; and on the 9th of January 1841 it was taken possession of by a messenger, on behalf of the Plaintiffs. On the 13th of January 1841 the Sheriff of Surrey seized the ship and c&rgo, under a writ of execution sued out of the Queen's Bench by Horton, who was a judgment creditor of Burnie; the Plaintiffs thereupon gave notice of their title to the sheriff, who under the Interpleader Act, 1 & 2 W. 4, c. 58, and 1 & 2 Viet. c. 45, summoned the Plaintiffs and Horton before one of the Judges of Her Majesty's Court of Queen's Bench, to appear and state the nature and particulars of their respective claims, and to maintain or relinquish the same. On the 19th of January 1841 one of the Judges 465] of that Court, upon hearing counsel on behalf of the Plaintiffs, and the attornies or agents on behalf of Benjamin Horton, and the said Sheriff of Surrey, ordered, that an issue should be tried, in which the Plaintiffs were to be Plaintiffs, and Benjamin Horton, as the execution creditor, was to be Defendant; and that the sheriff should remain in possession ab the expense of Plaintiffs, from that day, until security for the amount of the levy should be given; and he further ordered, that the question of costs should be adjourned. On the 29th day of January the Plaintiffs filed their bill against Horton, the Sheriff of Surrey, and Buraie, praying a declaration that the indenture of the 3d of March 1838 operated as a good and sufficient equitable assignment of the ship and cargo for the monies intended to be secured, and that they had priority over Horton ; and for an injunction to restrain the levying the amount of the execution, and to restrain the prosecution of the order under the Interpleader Act; and that upon the Plaintiffs giving security for the amount of the judgment, or at all events, on paying the amount into. Court, the ship might be delivered to him; and if necessary that a receiver might be appointed. The Plaintiffs now moved for the injunction and receiver, if necessary. Mr. Pemberton and Mr. Bolt, for the Plaintiffs. Mr. Bethell and Mr. E. E, Adams, for Mr. Horton. Mr. Painter, for the sheriff. the master OF the bolls [Lord Langdale]. The real question, between the parties in this case, is, whether in respect of the ship and cargo, William Hor-[466]-ton the execution creditor, is or is not entitled to have priority over the Plaintiffs, who claim the ship and cargo under an assignment from the owner. The property is in the possession of the sheriff, who, in consequence of the adverse claims of the parties, availed himself of the provisions of the Act of Parliament referred to, and applied to a Judge of the Queen's Bench, for the purpose of having the contest between the two parties who are likely to vex him, settled under the authority of the Court of law. It appears, however, that the rights of these parties do not depend upon the decision of mere legal questions. The right and title claimed by the Plaintiffs depend upon questions which must be determined in a Court of Equity; and the first question, therefore, which arises, upon the present occasion, is, whether such a matter as this can be determined, or was intended to be determined, by the Common Law Judges under the authority of the Act of Parliament. I must own it appears to me upon this occasion, that the Judges at Common Law have not conferred upon them, by that Act of Parliament, the power to determine matters which are peculiarly within the jurisdiction and province of a Court of Equity ; and that the intention was to afford the relief in those cases only, in which opposite claims were made, depending upon legal rights, and not upon matters exclusively of equitable jurisdiction. It appears that both these parties, when they went before the Judge of the Queen's Bench, conceived that their claims depended upon a legal title; and it being so stated to the Judge, he conceived that that legal right might be determined upon the trial of a feigned issue, which he directed ; but the terms of that issue never were proposed to, or in any way determined upon, by [467] him. What I collect from the evidence, which is not very distinct, is this : that when the parties left the Judge's chambers, they were both of opinion that this was a matter properly of legal jurisdiction, and both of them intended to have it tried in the way in which the Judge had proposed; 184 DE BEIL V. THOMSON JBEAV.1. but that sometime afterwards, those who acted for the Plaintiffs in the cause, discovered that there waa matter which was not properly of legal jurisdiction, and therefore conceived that it could not conveniently, if at all, be tried in the manner proposed upon the summons before the Judge ; and that it was consequently necessary to file a bill in equity for the purpose of having their rights determined. The bill being then filed in equity, is there anything whatever to prevent that equitable right from being tried] Suppose that this matter had never been brought under the consideration of a Common Law Judge at all; and that the party, finding he could not sustain the legal right, which he supposed he had, and that he had an equitable title only, which could only be enforced in this Court, had filed a bill, could it be said that there was no equity to maintain this suit? I think it could not; for the equity arises upon this: there was an assignment of the ship, and also of the cargo, which, at the date of the deed of assignment, was not in existence on board the ship, but was afterwards acquired. Such a prospective cargo would not, according to the rules of the Courts of law, pass by the assignment, but in equity it might pass. I think, therefore, that there is a question proper for determination here. There are other questions which are very properly raised, which may be deserving of the most serious consideration, and which may ultimately determine the rights between the parties. The question, however, is, what is to be done in the present stage of the cause, before the matters which are in [468] question between the parties can be determined, and whether the matters in dispute should be put into proper course of investigation and the property secured in the meantime; my opinion is that it ought. Then the question is, what course is to be pursued for that purpose. If Mr. Horton is content with the species of security which was offered during the proceedings before the Judge, that is well, if not, I think that the Plaintiffs must bring into Court a fund sufficient to answer the demand of the Defendant, and upon that being done, the property ought to be delivered up to be sold. With respect to the sheriff of course he cannot be called upon to part with the possession of this ship, without being paid what is due to him. After some discussion it was ordered, that upon payment of a proper sum into Court, the ship and cargo should be delivered over to the Plaintiff, he keeping an account, and that an injunction should issue restraining the proceedings at law, under the Judge's order. note.-See Putney v. Tring, 5 Mee. & W. 425; and Stwgess v. Claude, 1 Dowl. Pr. C. 505.
English Reports Citation: 49 E.R. 479
ROLLS COURT
S. C. 11 L. J. Ch. 233; 6 Jur. 357, 594.
[9] langton v. horton. Dec. 7, 20, 1841; Jan. 14, 15, April 18, 1842. [S. C. 11 L. J. Ch. 233; 6 Jur. 357, 594.] Bill of sale of a whaler, then absent on a fishing adventure, together with all masts, &c., boats, oars, and appurtenances. Held, not to pass the cargo of oil, &c., acquired during the adventure. Bill of sale of a ship, though absolute in its terms, may, notwithstanding the Ship Registry Acts, be, in equity, held a mortgage, if such appears to have been the real intention of the parties. A mortgagee out of possession of a whaler is not entitled, as against the mortgagor or his assignee of the cargo, to an allowance for the use of the ship. In the beginning of the year 1837 the Defendant Mr. Birnie, trading under the firm of Alexander Birnie & Co., was considerably indebted to the Defendant Mr. Horton. The debt was secured by acceptances of Birnie which were then running, and Birnie, having occasion for further advances, requested Horton to afford him further accommodation. At that time Birnie was the owner of a moiety of the ship "Ann " and stores, which was then on a whaling adventure in the South Seas, and with a view to the further accommodation which Birnie required, he addressed to Horton a letter, which was in these words:- "London, 27th January 1837.-Dear Sir,-From the difficulty at present existing in the money market, I am desirous of making the fol-[10]-lowing arrangement with 480 LANGTON V...
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