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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Carlberg and Others v. Borjesson And Mandatory [1877] ScotLR 15_257 (22 December 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0257.html
Cite as: [1877] SLR 15_257, [1877] ScotLR 15_257
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SCOTTISH_SLR_Court_of_Session
Page: 257↓
Court of Session Inner House First Division.
v.
(Vide ante, November 21, 1877, p. 112.)
Facts:
Where arrestments had been used against a ship which had been pursued on her voyage and illegally brought back to port at the instance of certain parties and their mandatory, to the latter of whom the illegality was directly due, and where these arrestments were recalled without caution— held that the ship could not then be arrested at the hands either (1) of the granter of the mandate, or (2) of the mandatory in his private capacity, or (3) of parties who had granted authority to the mandant to act for them, and who had a common end to serve with him in executing the diligence.
This petition for recall of arrestments arose out of the circumstances of the case between the same parties reported ante, p. 112. It was there found, inter alia, that the ship “Edgar Cecil, ” after she had fairly started on her voyage, had been illegally brought back to Greenock by a messenger-at-arms employed by Mr B. O. Borjesson, through his mandatory Mr James Wright, to execute a warrant of arrestment upon her. The respondents in the present petition, who were Borjesson and his mandatory, and also Lars Borjesson and Anders Borjesson, part-owners of the vessel along with the first (but not in any way related to him), took the opportunity of the ship being thus again in port to cause other and new arrestments to be used against her. These were used both ad fundandam jurisdictionem and upon the dependence of several actions raised at the instance of each of the above-named part-owners of the vessel, or one or more of them, and James Wright, their mandatory, for the purpose of bringing Carlberg, the managing owner and master of the vessel, to account for his intromissions. One was also at the instance of Wright & Company, of which James Wright was a partner.
Carlberg the master, and certain others of the owners, now petitioned for recall of these arrestments.
In the answers for the respondents, B. O. Borjesson abandoned the arrestments at his instance, and it was further stated that although Wright had acted as mandatory, he had not instructed the execution of the previous arrestments, and that the other respondents had no connection with it. It was stated that the action at the instance of Wright & Company was for remuneration for services actually rendered, and for advances made by them to the vessel as shipbrokers. It was said that Carlberg was in embarrassed circumstances, and that it was an object with him to keep his ship away from Sweden.
Authorities— Balle v. Renton, M. 4036; Rintoul v. Bannatyne, December 13, 1862, 1 Macph. 137; Brougham's Legal Maxims, 299.
At advising—
If under these circumstances some entirely independent third party had arrested her on the dependence of an action between him and the master, the question would have been quite different from that with which we have now to deal. But, in my opinion, there is here no independent third party. One of the arrestments is at the instance of Mr Borjesson, by whose illegal act she was actually brought back, and who therefore in making this arrestment is trying to benefit by his former illegal proceeding. And I think exactly the same objection applies to the arrestment by Mr Wright. Mr Wright was Mr Borjesson's mandatory, and was engaged in carrying on the process, the object of which was to bring back the vessel, and to compel the master Carlberg to account for his intromissions. Therefore he is equally with Borjesson an actor in the illegal proceedings, and not entitled to take any advantage from them.
But there still remains for consideration the arrestments at the instance of Messrs Lars and Anders Borjesson. Now, these two gentlemen are among that class of owners who authorised Mr B. O. Borjesson to bring Carlberg to account in this country. It is distinctly stated in the answers to this petition that they are dissatisfied with Carlberg, and they have authorised Mr B. O. Borjesson to take proceedings to have him removed, and the ship detained till they have carried through the accounting, and they confirm that authority now. Whether this is the authority on which the actions are raised on the dependence of which the arrestments have been used we are not informed; on the contrary, the answer we received to a question on that subject was very ambiguous. At all events, it is the only authority that has been produced, and if that be so, these actions have been raised by that authority, and for the purposes for which the previous arrestments were issued, the illegal use of which prevents Mr B. O. Borjesson and Mr Wright from benefiting by the present arrestments. It was therefore for the sake of Lars and Anders Borjesson as well as for B. O. Borjesson, that that illegal proceeding was carried out. They are all in combination. They are all working for a common end, and it was for the promotion of that end that the previous illegality was committed. I cannot find it possible to dissociate Lars and Anders Borjesson from the others; they all have a common purpose, as disclosed by the answers to the petition, and the authority is shown by those answers. These arrestments are for the purpose of recovering sums of money advanced to Carlberg for the ship, and to make him account for his intromissions with them. It is therefore impossible to say that we have independent third parties. None of them are more entitled than B. O. Borjesson was to use arrestments on the ship being accidentally brought back to Greenock, and therefore I am for recalling all the arrestments.
Page: 258↓
The Court accordingly recalled the arrestments.
Counsel for Petitioners (Reclaimers)— Balfour—Jameson. Agents— J. & J. Ross, W.S.
Counsel for Respondents— Trayner—Murray. Agents— Mason & Smith, S.S.C.