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![handle is hein.slavery/ssactsengr0758 and id is 1 raw text is: LLOYD V. LLOYD
If the effect of the Ship Registry Act be such as the Defendants insist it is, the
Plaintiff may not be able to assert his title to the ship; but so far as the transactions
are completed, if the Defendants have credited the Plaintiff with the freight as agreed,
and so discharged his debt to them, the Plaintiff must be entitled to have that account
taken. He. alleges that, upon the faith of that agreement he has devoted five years
to the service of these ships; that his remuneration was to be the payment of his debt
to the Defendants out of the freight, and the ultimate property in the ship. He may
lose the latter, but why. is he to be deprived of the benefit of the former? What
right have the Defendants to withdraw from the account that freight which they
agreed to place [190] to the Plaintiff's credit, and thereby leave him exposed to
liability upon his note, which note he alleges has been actually paid off by the result
of the account kept and taken according to the contract.
It was said that, if that be the case, the debt is paid at law, so that the Plaintiff
would have a good defence to the action. That is true; but if it be necessary to come
here to have the account taken, in order to shew that the debt is paid, a demurrer
cannot be supported.
It was argued that the whole was one transaction, and that if invalid as to the ship,
under the Registry Act, it could not be good as to the freight. But in illestaer v.
Gillespie (11 Ves. 621) the ship and freight were comprised in one bill of sale invalid
as to the ship; nevertheless, Lord Eldon and Sir W. Grant both thought the contract
might be good as to the freight.
The Defendants then say, that if the ship be theirs by law the freight must also
be theirs. This, however, by no means follows: the title to the freight and the title
to the ship are often separate; and although the Act of Parliament may prevent the
Court from considering anyone but the registered owner as the owner of the ship,
that will not prevent the parties interested from dealing as between themselves upon
another footing. If a ship be registered in the name of one, and he, admitting the
ship to be the property of himself and another, places the freight to the joint account,
and settles the account upon that footing, can he at a future time withdraw all such
items from the joint account because at law he alone can be recognised as owner of
the ship ?
[191] In Prouting v. Hammond (8 Taunt. 688) the Defendant had been registered
as the actual owner of the ship. The Plaintiff alleged that he was entitled to the
equity of redemption, and that the Defendant was only mortgagee. The Defendant
sold the ship, and told the Plaintiff he would pay him the balance. In an action for
the balance it was objected that the Defendant must be taken to be the absolute
owner, and that there was therefore no consideration for the promise; but it was held
that the Plaintiff should recover. In Battersy v. Smyth (3 Mad. 110) a demurrer was
allowed to a bill filed by a party claiming as part owner of a ship, but whose name did
not appear upon the register, and praying an account of the profits; but in that case
there was no allegation of any contract as to the freight, or that the amount of it had
been placed to the Plaintiff's account by the Defendant. The title to the account of
the freight was made to depend upon, and to grow out of, the Plaintiff's alleged title
of part owner.
I am, therefore, of opinion that, independently of any question upon the present
Ship Registry Act, this bill contains allegations which, if proved, would entitle the
Plaintiff to some part at least of the relief which he prays, and that the general
demurrer, therefore, cannot be supported.
The order at the Rolls must be reversed.
[192] LLOYD v. LLOYD. Feb. 7, 8, 1837.
[S. C. 1 Jur. 69; 5 L. J. Ch. (N. S.), 191 ; 6 L. J. Ch. (N. S.), 135. See Hobson v.
Ferraby, 1846, 2 Coll. 429.]
Marriage articles recited that L., the father of the intended husband, had agreed, in
case the marriage should take effect, to pay £200, and also to settle the lands of T.
in the manner, to the uses, and upon the trusts thereinafter mentioned; and that
S., the father of the intended wife, who was an infant, had agreed to convey the
2 MY. & C&. 190.](ViewImageLocal?handle=hein.slavery/ssactsengr0758&div=1&collection=&method=preview&ext=.png&size=3)