The Englishman and the Australia, No. 2
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1894 |
| Date | 19 November 1894 |
| Court | Probate, Divorce and Admiralty Division |
Probate, Divorce, and Admiralty Division
Bruce, J.
The Englishman and the Australia, No. 2
Phillips v. Dickson 8 C. B. N. S.
Merryweather v. NixanUNK 8 Term Rep. 186
Adamson v. JarvisENR 4 Bing. 66
Betts v. Gibbins 2 Ad. & Ell. 57
Pearson v. SkeltonENR 1 M. & W. 504
Palmer v. The Wick Steam Shipping CompanyELR (1894) A.C. 318
The KhediveDID=ASPM 43 L. T. Rep. 610 4 Asp. Mar. Law Cas. 360 L. Rep. 5 H. of L. 876
Mercantile Law Amendment Act 1856 (19 & 20 Vict. c. 97), s. 5.
Collision Joint liability Payment by one wrong-doer
Merryweather v. Nixan (8 Term Rep. 186) discussed and explained.
MARITIME LAW CASES. 605 Adm.] The Englishman and the Australia, No. 2. [Adm. Nov. 12 and 19, 1894. (Before BRucE, J.) The Englishman and the Austbalia, No. 2. (a) Collision - Joint liability - Payment by one wrong-doer - Indemnity - Mercantile Law Amendment Act 1856 (19 & 20 Vict. c. 97), a. 5. Sect. 5 of the Mercantile Law Amendment Act 1856 provides that "every person, who . . . being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him . . . every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty." In a collision action brought by the owners of a steamship against the owners of a tug and her tow, all three vessels were found to blame, the tug and tow being respectively condemned in a moiety of the plaintiffs' claim, and the plaintiff's in a moiety of the counter-claim of the tug. The oumers of the tow now ashed the court to order an assignment of the steamship's judgment tothem upon their paying the steamship the whole of the amount due under her judgment. Held (dismissing the motion), that the statute did not apply, as there was no joint debt existing before the judgment creating the liability. Merryweather v. Nixan (8 Term Rep. 186) discussed and explained. (a) Beported by Basil crump, Esq., Barrister-at-Law. 606 MARITIME LAW CASES. Adm.] The Englishman and the Australia, No. 2. [Adm. Motion for assignment of judgment. T. E Scruttan, for the owners of the Australia, in support of the motion. Sir Walter Phillimore and Nelson for the owners of the Ada. Butler Aspinall for the owners of the Englishman. The facts and arguments sufficiently appear in the judgment. In addition to the cases there cited, the following were referred to: Wooley V. Batte, 2 C. & P. 417; The Niobe, 65 L. T. Rep. 502 ; 7 Asp. Mar. Law Cas. 89 ; (1891) A. C. 401; The Avon and Thomas Jolliffe, (1891) P. 7; Batchelor v. Lawrence, 3 L. T. Rep. 506; 9 C. B. N. S. 543. By sect. 5 of the Mercantile Law Amendment Act 1856, Every person who, being surety for the debt or duty of another, or being liable with another for any debt or Juty, shall pay such debt or perform such duty, shall bo entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security, which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty or other security shall - or shall not be deemed at law to have been satisfied by the payment of the debt or the performance of the duty, and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding, at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty, and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him : Provided always, that no co-surety, co-contractor, or co-debtor shall be entitled to recover from any other cosurety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those...
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