Loring v. Illsley

By the Court,

Bennett, J. On the 17th day of December last, Richard S. Slaughter, Francis II. Reynolds, and Nathaniel Dean filed their several bills of complaint before the judge of First Instance of the district of San Francisco to recover damages for certain grievances claimed to have been committed against them respectively, while passengers on board of the bark Ella Frances, on her passage from Panama to San Francisco. After setting forth the canse of action, each of the complaints alleged that Frederick Illsley was part owner and master of the bark, and prayed that he and the other owners, when made known, and the bark itself might be cited to answer unto the complaint, and condemned in solido to pay the damages respectively claimed, and that the bark might be sold to satisfy the same. Summonses were therefore issued in the several suits, commanding Illsley, the master, to appear and answer the complaints. He accordingly did appear by his attorneys, and put in a several plea of the general issue on his own behalf. There was no answer put in on the part of the bark, or of either of the other owners, no process served upon them, no publication of notice requiring them to appear, and no appearance of record on their part. The causes coming on for trial, they vrere, by consent of parties, all tried together before the same jury, who rendered a verdict in each suit in favor of the plaintiff. Judgments were rendered for each of the plaintiffs against the “ bark Ella Frances,” &c., and executions upon such judgments respectively issued against the “bark Ella Frances and Illsley, master,” under which, according to the return of the sheriff, endorsed on the executions, the “ bark Ella Frances” was sold to the plaintiff, [26]James L. Loring, who was put in possession of the vessel by the sheriff. Illsley thereupon dispossessed Loring, and has retained possession of the vessel to the present time.

On the 7th day of February last, Loring filed his complaint in the court of First Instance, setting forth his purchase under the executions, the delivery of possession to him, his dispossession by force and violence, and praying restitution. Illsley put in his answer to this complaint and insisted therein, that he was entitled to the possession of the bark as master, and the court, after several continuances, gave judgment against him, and required him to deliver possession to Loring; from which determination an appeal is taken to this court.

By the judgment of the court of First Instance, it is declared “ that in the sale of the bark Ella Frances, under the order and “ decree of this court and by the sheriff of this court, James L. “ Loring the plaintiff in this proceeding purchased all the right, “ title, and interest of Frederick Illsley the captain and defen- “ dant in thé proceeding in and to said bark Ella Frances,” and that Illsley had and owned at the time of the sale, “ one- “ third part of said bark Ella Frances in his own right.” It is also set forth in the judgment that Illsley, as appeared from the register, represented the vessel and the other part owners, and it is adjudged that, in the suits under which the sale took place, he made a defence for the other owners as well as for himself. The record then proceeds as follows :•—“ The court, therefore, “ orders, adjudges and decrees, that from and after said sale, and “ by virtue thereof, all the right, title, and interest of the said •“ Captain Frederick Illsley in and to said bark Ella Frances, her “ tackle, apparel and rigging, including Ais rigid to hold the “ possession, control and command of the same, passed to and be- “ came the right of the said James L. Loring.” The judgment further orders the sheriff to deliver possession and to summon to his assistance the power of the county for that purpose, unless before the 10th day of March, Illsley should pay to Loring the sum of two thousand dollars, the amount of the purchase money paid by the latter, with interest thereon, at the rate of five per cent, per month from the date of the sale, and also one