Matthias Prime Lucas, William Thompson, Phineas Davis, Joseph Bull, Thomas Lingham, and Charles Eicke, - Plaintiffs (in Error); Christopher Nockells, - Defendant (in Error)
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Exchequer |
English Reports Citation: 5 E.R. 723
EXCHEQUER CHAMBER.
Mews' Dig. xiii. 296, 440. S.C. 1 C1. & F. 438; 4 Bing. 729; 10 Bing. 157; 1 M. & P. 783; 2 Y. & J. 304. Distinguished in Sinclair v. Broughton, 1882, L. R. 9 Ind. App. 172, and commented on in Allen v. Flood, [1898] A. C. 20.
[140] ENGLAND. exchequer chamber. matthias prime lucas, william thompson, phineas davis, joseph bull, thomas lingham, and charles eicke,-Plaintiffs (in Error); christopher nockells,-Defendant (in Error) [1833]. [Mews' Dig. xiii. 296, 440. S.C. 1 01. & F. 438 ; 4 Bing. 729 ; 10 Bing. 157 ; 1 M. & P. 783 ; 2 Y. & J. 304. Distinguished in Sinclair v. Broughton, 1882, L. R. 9 Ind. App. 172, and commented on in Allen v. Flood, [1898] A. C. 20.] To an action of trespass, for entering a ship and seizing goods, the Defendants pleaded, that H. and L. had recovered a judgment against one T., and had sued out a writ of fi. fa., by virtue whereof the Defendants, as sheriffs, etc. entered and took in execution the goods being the goods of T. The Plaintiff, admittingthe judgment and writ, replied de injuria absque residua causes, and new assigned that the Plaintiffs " at other times, and on other " occasions, and for other purposes than in the plea mentioned, entered " and seized the goods." Upon the trial it appeared in evidence that the Plaintiff was sole owner of the ship ; that the goods were shipped in Van Dieman's Land for London : that the master signed bills of lading, which stated that the goods were shipped by T., to be delivered in London to H. and L., he or they paying freight, etc. ; that the ship arrived on the 27th of June, that a treaty had been going on between the Plaintiff and H. and L. respecting the rate of payment for the freight, and that on the 4th of July the Defendants seized the goods, which were assigned by the sheriffs to H. and L. The Plaintiff also gave in evidence-1. A memorial dated on the 4th of July, presented to the commissioners of the Customs by H. and L., in which they stated that they were the importers of part of the goods seized-2. A certificate by H. and L. to the Excise Office, that some oil, (other part of the goods seized,) had never previously been sold, and that a sale thereof by auction, then intended, was the first sale [141] thereof-3. A written authority to their broker to buy the oil at a certain price, as their property. The Defendants gave in evidence the shipping of the goods by T., the charter-party, the writ, etc., and the seizure of the goods by the officers, etc. Held, that it was competent by law upon these pleadings for the Plaintiff to shew at the trial, in maintenance of his action, that the acts of the Defend- 723 VII BLIGH N. S. LUCAS V. NOCKELLS [1833] ant were not really done under, or in execution of the writ, but for another purpose, under another claim, and that the writ and the proceedings under it were a mere colour and contrivance to get possession of the goods without paying the freight. In Hilary Term, 4 G. 4.-The Defendant in error brought an action of trespass in the Court of King's Bench against the Plaintiffs in error, for breaking and entering his ship, and seizing and taking certain goods and merchandize then being therein. To this action two of the Plaintiffs in error (Lucas and Thompson) jointly pleaded -first, not guilty ; and, secondly, that at and before the time of the supposed trespass they were Sheriffs of Middlesex : that Hopley, G. A. Lingham, and T. Lingham, had recovered by judgment, etc., against one Thornton, a debt of £20,000 and 84s. costs ; that thereupon they had sued out a testatum fieri facias against Thornton, directed, etc. ; that the writ being delivered to them (Lucas and Thompson), as such sheriffs, by virtue thereof, and of a warrant duly made by them to two of their officers, Davis and Bull, etc., they, D. & B., before the return of the writ, entered the ship, and took in execution the goods, etc., being the goods and merchandizes of Thornton, and liable to be taken in execution by virtue of the writ, and justified in the usual manner the breaking, etc. hatchways to get at them, and [142] fixing tackle to the ship for the purpose of removing them. The other Plaintiffs in error, viz. Davis, Bull, Lingham, and Eicke, severally pleaded-first, not guilty; and secondly, Davis and Bull severally justified as sheriff's officers, acting under the said writ and warrant; Lingham justified as one of the plaintiffs in the writ, and as an assistant to the officers ; and Eicke justified also as an assistant. On the pleas of not guilty respectively, the Defendant in error joined issue; and to the other pleas, after protesting the judgment and writ, replied the common replication de injuria absque residua causes, and new assigned that the Plaintiffs " at other " times, and on other occasions, and for other purposes than in the said pleas men-" tioned," and with excessive and unnecessary force and violence, broke and entered the said ship, and seized and carried away the said goods. On these replications the Plaintiffs respectively joined issue, and with the exception of Lucas and Thompson, who joined in their plea, pleaded severally not guilty to the new assignment, on which pleas also issue was joined by the Defendant. On the 4th of July, 1826, the cause came on to be tried before the Chief Justice of the King's Bench and a special jury at Guildhall, when, to support his case, the Defendant in error gave in evidence that he was sole owner of the ship in which the goods were seized ; that they were shipped on board at Van Dieman's Land, for London ; and that the master of the ship signed bills of lading for the same, which contained, amongst the matters usual in such instruments, that the goods were shipped by Nathaniel Thorn-[143]-ton, to be delivered at London to Messrs. Hopley and Linghams, or to their assigns, he or they paying freight for the goods as per charter, with primage and average accustomed. The Defendant further gave in evidence that the ship having the goods on board arrived in safety in the river Thames about the 27th of June, 1823 ; and that subsequently thereto, and before the issuing of the execution, various communications took place between the Defendant and Messrs. Hopley and Linghams, relative to the delivery of the goods : that the Defendant at first offered to deliver the goods to Messrs. Hopley and Linghams, if they would pay freight for the same, according to a charter-party, recited in the charter-party hereinafter particularly referred to, and therein stated to have been put an end to, but subsequently offered to deliver the goods on their (Messrs. Hopley and Linghams) expressly agreeing to pay freight for the same according to the then existing charter-party, which was the charter-party referred to in the bill of lading, and under which the goods were shipped by Thornton, and in which the rate of freight was lower than in the recited charter-party, but that Messrs. Hopley and Linghams refused to enter into such agreement. The Defendant then further gave in evidence certain port entries and affidavits, bearing date the 4th of July, 1823, and made by William Elliott, the master of the ship, and the plaintiff Thomas Lingham ; and also a memorial of the same date, presented to the Commissioners of Customs by Messrs. Hopley and Linghams, which 724 LUCAS V. NOCKELLS [1833] VII BLIGH N. S. stated Messrs. Hopley and Linghams to be the importers of the oil and whalebone, parcel of the goods so seized. [144] The Defendant then gave in evidence two written documents, bearing date the 7th of August, 1823, signed by Messrs. Hopley and Linghams, and which were annexed to a catalogue of sale by public auction of (amongst other things) some of the oil, parcel of the goods and which had been delivered and left by Messrs. Hopley and Linghams at the Excise Office, and that no auction-duty was payable on the first sale by the importer of such oil. The first document was a certificate to the Excise Office from Messrs. Hopley and Linghams, that the oil therein mentioned (being parcel of the goods) had not been previously sold or parted with, and that the then intended sale by auction was the first sale thereof. The second was an authority to their brokers to buy the oil at a certain price therein mentioned, being their property. The Defendant then further gave in evidence, that on the 4th of July the Plain-tift's Davis, Bull, Lingham, and Eicke, came on board the ship ; and that Davis then produced the warrant of the sheriff Lucas and Thompson, arid that Eicke gave directions as to the unloading of the goods ; and that Davis, Bull, Lingham, arid Eicke broke open the hatches of the ship, which Defendant had closed, in order to prevent them from unloading the cargo, and began to unload the cargo, and continued to do so until the 17th of the same month, when all the goods were taken out of the ship ; and that the Plaintiff Davis had said that the amount of the sale of the goods so taken out was £1950. The Defendant further gave in evidence a notice bearing date the 5th of July, 1823, and signed Nind and Cotterill, attorneys for the Defendant, and served upon all the Plaintiffs, calling upon them [145] to quit and deliver up possession of the ship and goods, and then closed his case. Whereupon the Plaintiffs in error, iri support of their case, by the evidence of William Elliott, the captain of the ship, duly proved the execution of a charter-party, bearing date the 8th of August, 1822, being the charter-party under which the goods were shipped by Thornton, and hereinafter referred to. And by the evidence of William Elliott, further proved that the goods seized under the execution were shipped on board by Nathaniel Thornton, at Macquarrie and Van Dieman's Land, and that the...
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