SUPREME COURT—IN BANKRUPTCY.-

Otago Daily Times, Issue 2236, 6 April 1869, Page 2

SUPREME COURT—IN BANKRUPTCY.-

■'••■• Monday, 6th Ajpril,. •■;;"'" '" : '\ (Before-;**'B Honour Mr Justice Ward.) PETITIONS FOB'! ADJUDICATION.'''' Eb Jambs Robbrt^oit.— An order- wasgranted on the application' of Mr Wj Hi M'Keay. r r :: V;:;/"T Bb f. A,' OaßKli.—An , order was (granted on the application of Mr W, W. Wilson., Creditors' meetings in each of the above cages were fixed for the 13th April Kb <P. Nicholson.—An oider was granted on the application of Mr B. 0. ffaggitt.—A creditors' meeting was appointed to be held on the 20th April. ■ Re Aahokt Tishubb.—An order was' granted, and a meeting of creditonfcfixed for the 13th April. ' "! DECLARATION OV COMXIXnt SXSqV^JC^. 11b1 W. Hay.—An order for the complete -execration of deed was granted on the application of Mr B. 8. Ward. , Bb B. B. DoxaiiY. —Alike order wasgranted in this matter on the application of Mr E. ff. Ward; . . <. ••. EXTBXEfioK of rara. Rb J. Bates.—On the application of Mr Ward, the time to apply for a petition for adjudication waa» extended 14' days. mTAI, EXAMINATION. Rb R. Love.—On the application of Mr Wiison-the 12th instant was* fixed as the. day for' the 'final' examination of, the bankrupt, * • ; SDBVEBN AND AKOtHBB V. SMITH. The following is the judgment delivered by.Hia Honour Mr Justice Ward,'in the case of William Surflen and John Stewart v. A. -W.- Smith:—This- is an-action bronght tinder.the following: circumstances: Plaintiffs allege that they, were co-owners with one J. P. Sweeney of a certain vessel named the Onehaitga, and that the defendant, being the Sheriff of OiAgo^did, tinder a "writ oifi. fw. against the goods of the raid J. P. Sweeney, seize and nell the said vessel on the 28th January, 1868, whereby the fihwea of the

plaintiffs in i&a said vessel were lost to them. I'o^isdeclnrationjiio^JefendauC has pleaded; that tHe vestal in vocation was registered Kliijder v^ffiOv lileiibUant? Shipping ;|iMi/-:'|liat ne&herv-oti the] plaintiffs' nam^|pl^e4|^ register ; that $h"e plainilfffl"*|MW||^t procored any bill of sato <^||^prer^hom from the registered* p\rne|:m theiir a]ftarcs in ttio said vessel; thai; <ieftmdani; had no notice of any eaj^abjfc;;|il|kijtt of theirs ; and that Sweenej^ii^*w|k>e8 i eMion'(!)f ; .thd: veßssl at the time of ill© eeixure. ;Tp this pica the plaiatifijj have demurrod, as being bad in- substance. Defendant also objects' to the sufficiency of thi dec&ratioia, on tKe iground that the Sale by the Sheriff uidpr the writ against^ Me goods'-,■ of Sweeney ttml&nofrdivest thja property:.of ■ another part owner in the vessel. I assume, of course,, that the plaintifll are qualified to Bje owners;' of a registered British ship, as otherwise they would not, under the BBt clause, Bub-acctiona; 10, and 11, of the, Merchant Shipping Aet,,beheld to have acquired any property or intejfeat'therein ;at all by a-pur-chase without a andbill-of Bale,, and registry. I assume «lao, that the aveiimenfr hi' the; plea that pontiffs had 'notM^uired any"legal, jtifcle.'to this vessel, is a sufficient averment that no titl® had vested in them by death, bankruptcy, or Marriage,' With respect ,to jfche objeetiom against the declaration, there can be no doubt that assuming' the word coowner, to mean an owner^ of & certain9 nmnbeii* of: shares in a vessel registered under the Merchant Shipping iilcfc, no sale- by the Sheriff under a writ against the goods of* another oo» owner* could deprive him of .-.the first of the shares registered in his name. A person who buys goods 'by private contract and not by ; publicsale, in market overt, aoquures no other title than> his. immediate vettf?o t r. There Is no^ipaarkot overt for registered British ships;; and therefore, if such a. vessel be ■purchased' at a Sheriff's sale, the Sher^ft Having no right to sell it, the purchaser thereof acquires no title as against the true owner.. The Sheriff in thin csse could- only- sell thai right and interest in the vessel which appertained to Sweeney, against whose goods he held the writ of fi. fa. He giyes no warranty of title to the vessel,, ana the purchasers thereof takp her withMl notice by the Register that Sweeney could not be the legiil and registered owner, inasmuch as his name does not appear therelib.,, It may be a question here'afi(>r how far this is constructive notic« to them' of all equities affecting the vessel. In this aspect of the case, the first question to decide is whether the salo of the, vessel,, as set forth in the pleadings, was a sufficient' conversion to sbpport this action. On the authority of the case Weath v. Mubbard, 4, East, 128, anil Mayiiew v. , Banick, 7, C.8., 249, I am of opinion tKat a Bale of a vessel by a co-owner, is not suoh a destruction of the joilit-prpptirty aa will entitle another co.owiiior to bring an action for trover or wrongful conversion. The words of Mr Jjiaticb Cresswell, in MayKcw v. Earrick, I upon this point are clear—" The authoritieu seem to shew that one partner or joint-tenant of a chattel cannot maintain trover against his; co-tenant, in consequence of his having taken upon himself to«ell1 thesubject niattorof the joint-owner-ship. And there is no distinction in this respect between the case of the Sheriff apd any other tenant in common." It is not alleged by-' the declaration that the veiisel Was destroyed or no disposed of that plaintiffs have been prevented from following their legal rights, and on this ground the objection to the declaration will be sustained. This decision in effect disposes of the action in its present form, but there are some matters urged on bchalfjof the plaintiffs which require notice. It was argued by their learned counsel, Mr Cook, that since the passing of 25 and 26 Vicfe. c, 03, s. 3, inasmuch as, to use the words of that statute,, " Equities may be enforced agsiinst.the owners of ships in the same manner as in .respeciof. othei- partnership property, therefore equitable ownership of ahipß may be a"Berted, and a perion 'having a mere equitable fright thereto under some contract of saloj-as would appear to; be the case here-—is as much entit'ied to be described and treated as owner of a ship, aa if he hold under 'the original grand bifrof-salo,' as Lord Oranworth calls it I cannot say that in my opinion this is the case. The clause just quoted must be read as if incorporated in the Merchant Shipping Act of 1854. By that Acfcit is especially provided that every transfer of a registered ship shall be by bill-of-sale. In the face of that positive^enactment, I cannot hold that: transfers by purchase can be legally effected in any other way.-— (See Wardv. Beck, 13, C.8.VN.8.,; 668.) Nor can I hold that a possessory right is transferrtd; by any mere equitable contrkct, in the absence of any special agreement for possession before the execution of the instrument ,of transfer required by law. A bill oiaalo isjcequired by the statute to effect the transfer (herein differing from ordinary sales of chattels), and it is clear ; from the tenor of the Merchant Shipping Act^ that ?the property in a registered ship was not intended to pass bjr bargain and sale without one. Then cotnes the question whether a person, having, a mere eqni-1 table interest in a chattel without right or possession, has sufficient, title thereto to maintain b ,aa, aotjon for the wrongful conversion thereof. - Mere possession Iwould prove sufficient title, as shown by the case of Su&Umv. jß«cfc,2,Tauntcn, 307; and by Armory y. .JDdamirie, 1, Stra., 605. ? But here there is no possession or right of possession shewn on the part of the plaintiift. It is clear that the plaintiffs must show a right to the immediate , possession of-this vessel- ia-order- to -recover in this action.—(See^M Uea v, Gorton,- 2, C. and M., 604). They may have ,a good claim to< relief from the Equity side of this Court,. but they are not entitled, on the facts as they now appear, to succeed ;in.! their ' present' contention. "Lastly, I may remark that not,a .single case has been cited to show that, when a sheriff seizes and sells goods held in part ownership, and in absolute and uncontrolled possession, by the person whose name appears iv the writ, directed to him without any opposing claim bßing set up, he, has ever been held liaMe in an action of trover or wrongful convention. This question, however, after what has been already decided on the subject of the bill of salO; could onjy affect the events, and those portions of a ship's apparel which are riot held to be included in -the word " ship," as -used in the Merchant Shipping Act/1854; and which' might consequently pass as mere ordinary chattels, in the nsu&l way, by a contraot of sale. With respect to these, it appears to me that a recovery could'only be for so much of the proceeds of the safe thereof as might be proportioned to the plaintiftV snare iv the co ownership. And there is no averment in "the,declaration of what that share was. But it is unnecessary to discuss this point, as the before, cited dicta of Mr Justice Cresswell are clearly applicable to the whole of the chatfcels;gdld to the1 present occasion by-the Sheriff., tTh'e objection to {the declaration, will be upheld, and the demurrer dia&llowed, -with coafcß.