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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dempster v Drybrough [1837] CS 16_109 (28 November 1837)
URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0109.html
Cite as: [1837] CS 16_109
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SCOTTISH_Court_of_Session_Shaw
Page: 109↓
v.
M'Neill— Neaves.
D. F. Hope— G. G. Bell.
Dunlop.
Subject_Process — Summons — Ship—
1. Where a summons libelled that a defender was liable as “owner or part-owner” for disbursements made on account of a ship in a foreign port; but the defender was neither owner nor part-owner—Held, that, whether his connexion with the ship might be such as to render him liable on other grounds or not, the action, as laid, could not be sustained; and action accordingly dismissed, with expenses. 2. Where pleas touching jurisdiction and citation were stated on record, and though not abandoned by the party, were not argued before the Lord Ordinary at the debate, the Court recalled the interlocutor of the Lord Ordinary, disposing of the cause on the merits, and, without giving judgment on these pleas, remitted to his Lordship to dispose of them in the first instance.
Facts:
George Dempster and Company, merchants in Montreal, and their mandataries, raised an action before the Bailies of Leith, as Admiralsdepute, under a deputation from the Magistrates of Edinburgh, against Thomas Drybrough, baker in Edinburgh, and Francis Leyden, shipmaster in Leith, and William Leyden, master in the Royal Navy, as “owners or part-owners” of the brig Elizabeth, for payment of a sum of £98, 3s. 9d., being disbursements made on account of the brig in a foreign port.
The defenders objected in limine to the jurisdiction and citation, but their objection was over-ruled. Thomas Drybrough also pleaded, that he was neither owner nor part-owner of the vessel, as libelled, and that no other ground of liability was laid in the summons.
The pursuers answered, that if not an owner, in the strictest legal sense, yet the use of the vessel had been assigned to him, with the amplest powers of management, and that it was while she was employed for his behoof, and under his administration, that the disbursements in question were made by them.
The whole defenders pleaded other defences on the merits.
The Inferior Court assoilzied them, with expenses, and the pursuers brought an advocation. No new record was made up, but notes of pleas were added by the respective parties. The pleas as to the incompetency of the jurisdiction of the Inferior Court and the citation, though not abandoned, were merely referred to as being on the record of the Inferior Court, and were not argued before the Lord Ordinary at the debate.
The Lord Ordinary found “that the defenders, Thomas Drybrough, Francis Leyden, and William Leyden, are liable to the pursuers, George Dempster and Company for such part of the sum of £98, 3s. 9d. claimed as can be shown to consist of advances, disbursements, or charges made by, or incurred to, the advocators on account of the ship Elizabeth at Montreal, including the charges and expenses necessary or incidental to
the said vessel completing her outward, and commencing her homeward voyage, reserving to the defenders any claim of relief which they may have against each other.” * The defenders reclaimed.
In regard to the question with William and Francis Leyden, the Court recalled the interlocutor of the Lord Ordinary, and remitted to his Lordship to dispose of the preliminary pleas reserving expenses.
In regard to the reclaiming note of Thomas Drybrough, the following Opinions were delivered:—
The Court accordingly altered the interlocutor as to Thomas Drybrough, and dismissed the action, with expenses.
Solicitors: M. and W. Smillie— J. Beveridge, S. S. C.— J. G. Barr, S. S. C.—Agents.
_________________ Footnote _________________
* “ Note.—The Lord Ordinary thinks Thomas Drybrough liable, because the use of the vessel had been assigned to him, with the most ample powers of management; and it was while she was employed for his behoof, and under his administration, that the disbursements in question were made. It is said that he is described in the summons as an owner, which he was not; but the Lord Ordinary does not think that this description is so set forth as to fix the claim to be made against him exclusively in this character, and in its strict legal sense.”