The "Dowthorpe"
| Jurisdiction | England & Wales |
| Judgment Date | 24 March 1843 |
| Date | 24 March 1843 |
| Court | High Court of Admiralty |
English Reports Citation: 166 E.R. 682
HIGH COURT OF ADMIRALTY
S C 2 Notes of Cas 264, 7 Jur. 609 Referred to, The "Harret," 1868, 18 L T (N S) 805
the " dowthorpe"-(Lofty) March 24, 1843 -Question as to the appropriation of the proceeds of a ship and freight m satisfaction of outstanding judgments. Assignees of a bankrupt shipowner have a petaona stamh to appear for the benefit of the general estate, and contest the appropriation of the proceeds, against the assignees of the freight, seeking to make the ship alone liable in the first instance Parties taking an assignment of a ship or freight as security for a debt, take such security liable to subsequently accruing liens, viz bottomry bonds, salvage, wages, &c. Claim of a bondholder, for the payment of his bond, directed to be satisfied out of the proceeds of the ship and the freight pio rata Same principle applied to claims under a judgment of the Court for pilotage, towage, and mariners' wages [S C 2 Notes of Gas 264, 7 Jur. 609 Refened to, The "Harriet" 1868, 18 L T (N S ) 805 J In this case a suit was brought, in the first instance, against this ship and her freight, for payment of a bond of bottomry. aw rob 74 the "dowthorpe" 683 Other actions were also subsequently entered for pilotage and towage, and for manners' wages The ship was sold under a decree of the Court, and the proceeds of the sale thereof, together with the proceeds of the freight, were brought into the registry .Judgment was suffered to pass by consent in the several actions. The original ownership in the ship and freight was vested in T H , a merchant, of Hull, and in Lofty, the former master , forty-eight sixty-fourth [74] parts or shares belonging to T H , and the remaining sixteen shares to the master. Antecedent to the commencement of the proceedings in this Court, T H had become a bankrupt, and prior to his bankruptcy he had assigned his mteiest in the forty-eight shares of the ship to Pease, a broker, of Hull, as security for money advanced He had also assigned his interest in the freight, subject to certain conditions, to Burney and others under a deed of assignment Application was now made on behalf of the bondholder for payment of las bond out of the proceeds of the ship and freight, and appearances were given for the assignees of the freight under the deed of assignment, and for the assignees under the bankruptcy of T H , praying to be heard in objection No objection was made by Pease and no appearance was given for Lofty, the master The question which was raised regarded the appropriation of the funds in the hands of tl'e. Court, in satisfaction of the different judgments which had been obtained. The question was argued by Haggard and Harding, for the assignees of the freight. Addanis and Bayford, for the assignees of the bankrupt. White, for the bondholder The details of the case and the nature of the objections are fully noticed and elaborately discussed in the judgment of the Court [75] Judgment-Dr Lushington. In this case a bottomry bond was granted at Singapore upon this ship and her freight, upon a voyage from that port to the port of London. The bond was pronounced for in this Court, without opposition, and the present question arises upon the appropriation of the several funds which are in the possession of the Court, in satisfaction of the various demands which have been set up against them The funds in question consist First, of the proceeds of the ship, which has been sold by order of the Court, amounting to the sum of £2621, 9s 8d Secondly, of the freight, which has been brought into the registry, amounting to the sum of £767, 10s. ltd. Thirdly, that portion of the freight for which bail has been given, amounting to £311, 16s 2d The whole amount of the funds in question being £3700, 16s 9d Against these funds the following claims have been asserted. First, the bondholder's claim upon the bottomry bond, amounting to the sum of £1757, 10s 2d ; secondly, the demands for pilotage, towage, and wages, amounting to £491, 5s. 5d. ; in the whole £2248, 15s 7d Besides these, there will also be the amount of the proctors' bills for costs when taxed It is clear, therefore, that the proceeds of the ship alone exceed the whole amount of these several demands. It may be possibly necessary hereafter to consider whether, as regards the funds for payment, there is anv distinction between a bottomry bond and the other demands ; but I shall postpone the consideration of such questions until I have brought under examination the claims against the ship and freight, or the proceeds thereof, which, in a legal new, are one and the same [76] thing ; remembering that I have to determine, in the first place, against what funds these demands shall be placed, and not to whom any residue may be ultimately paid out. With regard to the ship, then, it appears that she was huilfc at Stockton, in 1837 , that some time in August, 1841, T Humphreys, the elder, was the owner of forty-eight parts or sharea, and Lofty, the master, was the owner of the remaining sixteen shares ; that T Humphreys and his son carried on business under the firm of T. Humphreys, the elder, and T. Humphreys, the younger ; but that these forty-eight shares in the vessel were not the property of the partnership, or of any other firm in which Humphreys the elder was engaged, but were a part of his own private estate. That the firm of Humphreys & Son had an account with Pease & Co., Bankers, at Hull, who had made advances to them, and as a security for these advances, and also for further advances that might be made to the firm of son, and to himself individually, or to other firms in which he was engaged, 684 THE " DOWTHORPE " 2 W. ROB. 77. these forty-eight shares were assigned by Humphreys, the elder, to Pease & Co Thus matters remained, save, probably, with some variation as to the amount of the debt, until June, 1842, when Humphreys & Son became bankrupts At this time there was due to Pease & Co the sum of £14,480 Messrs M , \V , & S were appointed the assignees of Humphreys & Son, and they are the parties now appearing in Court, and seeking to prevent the proceeds of the ship from being made the sole and primary fund for the liquidation of all these demands No appearance has been given for Pease & Co , and some doubts have been sug-[77]-gested in the argument as to the right of the assignees to appear and make the prayer which they have made...
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