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Read V. Angell, & the Dazzler


Reported by John Thompson, Esq., Barrister-at-Law.

GUILDHALL. Saturday, March 1 [1856]

Read V Angell: Rothery Garnishee.

Foreign attachment - What moneys attachable - Moneys in the Admiralty Court.

Certain moneys, the balance of the proceeds of the sale of a vessel decreed by the court, remained in the Bank of England to the credit of the Registrar of the Court of Admiralty. And the wages and expenses of the captain were pronounced for by the court. Upon such pronunciation, an order for payment issues to the registrar as of course; but without such order he is not justified in giving his cheque on the Bank to the party in whose favour the decree is pronounced. After the wages, &c ., were pronounced for as above, but before any order of the court had issued in pursuance of the pronunciation, the moneys were attached in the hands of the registrar, in an action in the Mayor's Court, against the captain:

Held, that the moneys were not so attachable before order issued.

This was a customary attachment, grounded upon an action of debt brought on the 25th Oct. 1855, by the plaintiff William Read, against the defendant Luke James Allen. The debt was sworn at 250l. And on the same 25th Oct. the plaintiff attached moneys of the defendant in the hands of Henry Cadogan Rothery, the garnishee.

The plaintiff had been the owner of the ship Dazzler, and the defendant the captain thereof, and both were resident at Ipswich. The garnishee was the Registrar of the High Court of Admiralty. The action was brought to recover 250l. debt To the attachment the garnishee pleaded on the 30th Jan. nil habet.

The plaintiff's case was, that the garnishee has, or had between Oct 25, 1855, and Jan. 30,1856, moneys of the defendant in his hands, which moneys the plaintiff had the power to attach.

It appeared that the ship Dazzler, when owned by the plaintiff, was under the defendant's charge as captain, and that in 1854 she sailed on a voyage to Australia. After her arrival, the ship was sold in Australia under a power from the plaintiff, and his attorney settled all accounts on behalf of the plaintiff with the captain.

The defendant made arrangements in Australia with two merchants there, and became jointly with them, the purchaser of the vessel.

Afterwards the ship sailed from Australia, under the defendant's command, to a port in China, and on her voyage home to this country she met with disasters at sea and was obliged to put Into Singapore for repairs. And for that purpose in Dec.1854. the captain borrowed of Messrs. Kerr, Rawson and Co., on a bottomry bond, the sum of 930l.13s.6d, payable if and when the ship should reach the port of London. After the repairs were done, the ship proceeded on her homeward voyage and arrived safely at Belfast, when the captain borrowed of the agents of Messrs.Kerr, Rawson and Co. the further sum of 528l. 10s. 6d.

Subsequently the ship was arrested by process from the High Court of Admiralty for the money due upon the bottomry bond; and in due course she was decreed to be sold, and upon sale she realised 1700l. That sum was paid into the hands of the Registrar of the High Court of Admiralty, subject to the order of the court, and by him it was lodged in the Bank of England. The sum of 933l. odd was ordered by the court to be paid over to Messrs. Kerr, Rawson and Co. in respect of their claim upon the bottomry bond; and after payment of that sum and of costs and incidental expenses, about 850l. remained in the hands of the garnishee. The defendant's wages and expenses, about 350l., were, on the 12th Jan. 1856, also pronounced for by the Court of Admiralty, but had not been paid in consequence of no order having issued as yet.

The garnishee was called on the part of the plaintiff. From his evidence it appeared that an order of the court would issue as of course immediately upon the wages and expenses being pronounced for; that he, as registrar of the Court of Admiralty, was subject in all things to the direction and order of the court; that he could not pay over the sum pronounced for without an order; and that the money was in the Bank of England to his account as registrar of the Court of Admiralty and not to his private account; that when an order of the Court of Admiralty is made for payment of money, the Bank of England does not see that, order, but that he the registrar gives a cheque on the bank to the party to whom the money is to be paid; that such cheque on the bank must be countersigned by the cash clerk; that if he gave a cheque on the bank to a party to whom money had been pronounced payable by the Court of Admiralty without an order of the Court of Admiralty first issued, it would be irregular on his part; and that no other person had power to draw upon the funds of the Court of Admiralty in the bank but the registrar of the court.

It was submitted, on the part of the garnishee, that there was no case for the jury; that the registrar was the servant of the Court of Admiralty, and, as such, had opened an account with the Bank of England; that it was not his duty to give a cheque to the party entitled to money out of court until ordered to do so by the court; that until the order he had no power to draw, and that it was in the discretion of the court to make such order or not: that this case was in effect a quasi mandamus to the Court of Admiralty, to compel it to make an order in favour of the defendant for payment of this money, for until an order it was not his money, and could not be so considered; that the Mayor's Court had no power to do that; that the registrar was the mere conduit-pipe, through whom the parties entitled received money, and that his order required to be countersigned by the cash-clerk; that the registrar was distinguishable from the public officer of a banking company, who might be a garnishee in this respect, that the public officer, by Act of Parliament, was the registered representative of the company. Besides, here it had not been pronounced that any money in the bank belonged to the defendant, but only that he was entitled to so much for wages, &c ; and that defendant was not in a position to sue the garnishee for such sum, and, therefore, the money could not be attached.

The Recorder directed the jury that the effect of the judgment of the Mayor's Court was to order the garnishee to pay the money into the Mayor's Court for the benefit of the plaintiff in the action if he succeeded; and that the garnishee was the mere officer of the Court of Admiralty, and could not touch the money in the Bank of England without an order or the Court of Admiralty; and that there being as yet no order of the court for the payment to the defendant of his wages, the Mayor's Court was not justified at this period in making the attachment.

Verdict for the garnishee.

Locke for the plaintiff.

H. James for the garnishee.