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This was a petition under the 65th section of the Merchant Shipping Act 1854, at the instance of Hugh M'Phail, steamship owner, Glasgow, praying the Court to restrain his partner in a joint-adventure from dealing “by way of sale, mortgage, or otherwise” with a certain ship in which they had a joint-interest. The 65th section of the Act was as follows:—“It shall be lawful in England or Ireland for the Court of Chancery, in Page: 679 ↓
It was averred that Mr Hamilton had on various occasions since endeavoured by himself or others on his behalf to deal with the “Earnholm, ” or his interest therein, by way of mortgage or otherwise, and thus to bring the joint-adventure to an end, or to impose another party or parties upon the petitioner as joint-owners while the joint-adventure still subsisted.
Intimation was made, after which the respondent put in answers objecting, inter alia , to the competency of the petition as not authofounded on. He argued that it was decided in Roy v. Hamilton & Company , March 9, 1867, 5 Macph. 573 , that the 65th section of the Act was intended to afford a remedy only for cases occurring under the 62d, 63d, and 64th sections, which sections referred only to a judicial remedy in cases where a vessel or share of a vessel had come to belong under certain circumstances to a person not qualified to be the owner of a British ship.
The petitioner answered that the 65th section must be taken as qualifying the whole of that part of the Act dealing with “transfers and transmissions, ” namely, from section 55 onwards, and that the petitioner was an “interested person” within the meaning of section 65.
Lord President —The ship in question was built for the purpose of a joint-adventure, and was owned by the joint adventurers as part-owners. The grounds on which the petitioner asks for the interposition of the Court it is not, I think, necessary to consider in dealing with the question of competency. For the case of Roy v. Hamilton & Company , March 9, 1867, 5 Macph. 573 , is directly in point, unless the position of the petitioner and the respondent as joint-adventurers introduces any specialty which prevents the application of that judgment to the present case.
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