THE STEAMER ALBION.

Wellington Independent, Volume XXVI, Issue 3332, 30 October 1871, Page 2

THE STEAMER ALBION.

The following is the report in the " Argue" of ft case beard in the Supreme Court, Melbourne, on October 2nd, before Mr Justice Molesworth : — JABDINE AND OTHEBB V. HOYT AND ANOrHKH. Demurrer to bill. Mr Fellows and Mr Hoiroyd for the demurrer 5 Mr J. W. Stephen and Mr Gfregory for the bill. Tho bill was filed by Robert Jardine and others, currying on business at Hong Kong, against Charles James Hojt nnd Henry Iloyt. It stated in effect that in Nov., 1869, Charlea James Hoyt was in possession of the steamer Albion : that be took the steamer to Yoko*

hama, Japan, where plaintiffs had ft branch establishment, managed by Edward WhiWell, one of the plaintiffs. Hoyt represented that he was the sole owner, and placed the steamer iv the hands of Wliittoll for sale. Whittell advanced £8300 for six months, from Ist November, 1869. In May, 1870, when the loan became due, C. J. Hoyt agreed with plaintiff's agent, obo Herbert Smith, to have the debt re- i newed for three months on the security of a mortgaee of the vessel, and of the delivery to I plaintiffs of all the papers connected with the ' Bhip. The documents handed over were (I) a I certified copy of the register of the vessel at Dunedin in the name of the Otago Steamship | Company, Limited ; (2) a bill of sale of the steamer to C. J. Hoyt and Alexander Maekinnon ; (3) a bill of sale of the one half from Maekinnon to C. J. Hoyfc ; (4) a power of attorney under which the lust-mentioned bill of sale was executed. Smith slid he would forward the documents to Cargills & M'Lean, of Dunedin, for registration ; whereupon C. J. Hoyt requested him not to do so, as Mackinnon was indebted to that firm, and they might throw obstacles in the way, and asked Smith to give him (Hoyt) the documents 3 and 4, which would be forwarded to his legal advi Bor. Smith thereupon gave the documents to Hoyt, who undertook to get the registration of himself as aole owner completed, and to hand tho documents to plaintiff in order that they might register their mortgage The steamer was to be taken to Hong Kong to be disposed of; but it was afterwards arranged, at C. J. Hoyt's request, that tho vessel should be taken by him to Hiogo to be disposed of if possible ; nnd with this view he obtained from Smith the document No 2 as evidence of title, remarking that the other documents had been forwarded to Dunedin. Before leaving for Hiogo, Hoyt discharged the captain, Mr F. Dunn, alleging to Smith that it was for misconduct, and to Dunn that it was to save expenses. Hoyt called at Hiogo, but instead of selling the ship took on board a cargo of coal, cleared out for Nagasaki, but went to Gladstone, in Queensland, whore possession was delivered up to C. M. Ware, an agent of Henry Hoyt, a brother of C. J. Hoyt'a. Plaintiffs have since discovered that, on the 4th of June, 1870, before leaving Yokohama, 0. J. Hoyt executed a mortgage to Henry Hoyt to secure £14,000, with interest, at eight per cent, delivered the mortgage and the doouments 3 and 4 to 0. M. Ware, who at once despatched a messenger with them to Dunedin. Tho messenger arrived there on the 18th of August, 1870, where he registered the dosument 3, and afterwards the mortgage to Henry Hoyt, the first being registered at 2i minutes past 11 am., and the other at half-past 12 p.m. of 18th August, 1870. After C. J. Hoyt had absconded from Japan, plaintiffs forwarded their mortgage to Dunedin to be executed, but they were anticipated by the special messenger, who took the unusual course of landing at Hokitikft, and crossing ovorland to Dunedin. Ware was fully cognisant of the mortgage to plaintiffs, at the time that he, as agent for Henry Hoyt, obtained the mortgage to that defendant ; notice of the mortgage to plaintiff being inserted in the certificate of registration, which was seen by Ware. In an affidavit made by Henry Hoyt, in other proceedings relating to the ship, he stated that his brother owed him the £14,000 since 1868, and that Ware was specially despatched in December, 1869, with the view of obtaining the mortgage as security for tho debt. The steamer was brought to Melbourne, September, 1870, when H. Hoyt obtained advances of £7800 from H. A. Coffey on the security of his mortgage. No question arose as to Mr Coffey's advance, plaintiffs being willing that he should be repaid. Plaintiffs claimed to ho considered first mortgagees, and to have their debt paid in preference to tho defendant Henry Hojt's. To this bill H. Hoyt demurred, relying in so doing simply on tho Imperial act, 17 and 18 Vie., chap. 104, sec. 69, which is as follows : — " If there be more than one mortgage registered of the same ship, the mortgages shall, notwithstanding any express, implied, or constructive notice, be entitled to priority one over the other, according to the date at which each instrument is recorded in tho register book, and not according to the date of each instrument itself." His Honor allowed the demurrer with costs, granting the plaintiffs liberty to amend their bill within a fortnight ; if no such amendment, bill to be dismissed with costs as to the demurring defendant. _