Indian Queen (Schooner), 22 May 1857

On Thursday last a large and splendid schooner was launched at Coldwater, Georgian Bay, and christened in due style the INDIAN QUEEN, she is a three master, 140 feet long, 23 foot beam, and 13 feet depth of hold, capacity 16,000 bushels of wheat. She was commenced last fall by Mr. MacFie, the builder of the CITY OF TORONTO &c., and finished by Mr. McCord. Cost about $16,000 and made of the best oak. She is owned by our enterprising fellow citizen J.C. Fitch, Esq., who intends placing her on the Chicago and Collingwood trade, and is now taking in a load of lumber at the mouth of the Severn. She is commanded by Captain McDonald.
      Toronto Globe
      May 27, 1857
      . . . . .

      LAUNCH AT COLDWATER
We are informed that another new vessel was launched at Coldwater on Tuesday last. She is intended to trade between Collingwood and Chicago, a large quantity of freight being already engaged.
Her builder is Mr. John McCord, well known in this city in connection with the construction of the CITY OF TORONTO, which has just made such an excellent trip between Liverpool and Quebec.
Some hundreds of persons were present at the launch, the honor of christening her devolving on Miss Caswell, of Coldwater, who named her " INDIAN QUEEN."
Her carrying capacity is equal to about 600 tons. The launch was in every respect entirely successful. We understand that two or three other vessels are about to be laid down immediately at Coldwater, which is said to possess unusual advantages for the successful prosecution of this important and hitherto somewhat neglected department of domestic industry. ----- Toronto Leader
      Barrie Northern Advance
      May 28, 1857

      . . . . .

      On the 22nd. inst. a new vessel was launched at Coldwater, the INDIAN QUEEN, three masts 140 feet length, 26 feet beam and 12 foot depth.
      Detroit Free Press
      May 31, 1857

      . . . . .
     
      Port of Montreal Port Register - 6 of 1858

Name . . . . . . . . . INDIAN QUEEN Official Number, 33500
Type . . . . . . . . . Schooner
Tonnage . . . . . . . 309.93 tons
When built . . . . . . 1857
Where built . . . . . Coldwater
Builders name . . . John McCord

Length . . . . . . 130 feet & 1/10th.
Breadth . . . . . . 25 feet & 7/10ths.
Depth of hold . . 12 feet & 8/10ths.
Masts . . . . . . Three
Decks . . . . . . One
Stern . . . . . . Square
Rig . . . . . . Schooner, of carvel build
Figure-head . . . None

Subscribing owners:--John Charles Fitch, merchant, owner of all 64 shares
      Vessel was transferred to John McCall & Co. of Glasgow, Scotland, with instructions to sell vessel any place outside of Canada, for a sum of not less then L 2,000 Sterling, this dated May 22, 1858.
      No sales on the above terms were made and vessel transferred back to Mr. J.C. Fitch, of Toronto, dated November 9, 1860.
      Vessel owned by Joseph Barton of London ( Ships Broker ?) dated April 1860, who sold to G.Gowan of Montreal, dated Dec. 1860, who sold to Wm. Murdock of U.S.A., dated Feb. 10th. 1862. Who sold to William Wallace Bruce of the city of Liverpool, England, dated June 26, 1862
REMARKS - VESSEL TRANSFERRED TO MARY PORT, CUMBERLAND, ENGLAND, OCT. 1, 1862
      Registry Closed June 26, 1862
      Port of Montreal, Vessel register
      Public Archives, Canada
      R.G.42.Vol.117 p.20 Reel C2466

NOTE: -- in the above vessel, as well as the CITY OF TORONTO, both vessels were built by Alex McPhie, but finished by McCord.

      . . . . .
     
      McNabb v. Howland et al.
      Chattel property-Joint tenants in-Conversion by one-
      How far an action can be maintained by co tenant.
      One of two joint tenants of a chattel is not liable in trover at the suit of
      his co-tenant for a sale of his chattel not in market overt.
      The plaintiff and one F. being joint owners of a vessel, F. causes it to be
      registered in his own name, and sells and conveys her to a purchaser
      who disposes of her.
      Upon an action brought against F. and his partner in business (who appeared
      to claim no interest in the vessel) a verdict being found for both defendants,
      the court, as the verdict was against the judge's charge granted a new trial,
      costs to abide the event.
DECLARATiON that defendants converted to their own use a certain vessel or schooner with the apparel and appurtenance called the INDIAN QUEEN.
Pleas.-1. Not guilty. 2. Goods not the plaintiffs.
At the trial at the last Toronto spring assizes before the Chief Justice of Upper Canada, the plaintiff proved that he had been concerned in the building of this vessel, and that the defendant Fitch had admitted that the plaintiff had, up to the 1st of October, 1856, advanced £898 12s. 4d., towards building her. The plaintiff's claim including interest, for his advances amounted to £1257 17s. 9d. It was further proved by extracts from the official books in the customs department at Montreal that on the 21st of May, 1858, the defendant Fitch was registered at that port as the sole owner of the vessel named the INDIAN QUEEN, and that on the 5th of April, 1860, Fitch, by bill of sale of that date, sold her to one Barlow, who, by bill of sale, dated the 24th of April, 1860, sold her to one Dorwin.
It was proved that in 1858 the Indian Queen sailed for Glasgow, and the plaintiff and defendant Fitch both spoke of trying to sell her in Glasgow. A witness valued her when finished at $16,000. Fitch stated he had sold her to Barlow for $6,000, part in goods: The admission made by Fitch was as to the correctness of certain entries made in a pass-book produced at the trial, and - in that book The account is of transactions of Fitch and Rowland, but the witness who produced this book stated that plaintiff always told him Fitch only was owner with him, not Rowland. The evidence against Rowland was, that he admitted that he had received part of the proceeds of the first voyage of the vessel to Europe; that he had received the earnings, or some of them, on the first voyage to Europe, but there was no proof that he asserted any interest in the vessel, or that he explained in what right, or on what account, he had received the earnings or any part thereof. Fitch admitted he had sold the vessel to Barlow in New York, but said it was with plaintiff's consent. This plaintiff always denied.
      The learned Chief Justice told the jury to treat Fitch and the plaintiff as joint owners of the vessel; that Fitch afterwards procured himself to be registered as sole owner and then sold her, and that if this was done without plaintiff's consent, the plaintiff was entitled to recover half her value from him. That the sale by one joint owner of a chattel without the consent of the other, and especially selling it in a foreign country, is equivaleut to the destruction of the article, and will give a right of action. He left to the jury to find whetherthe plaintitff was willing that Fitch should sell.
The defendants' counsel objected that a sale by Fitch, even if without consent express or implied or without any subsequent assent to the sale, would give no right of action -- that nothing but a destruction of the chattel would.
      The jury found for defendants.

      In Easter Term R. P. Crooks obtained a rule nisi for a new trial witout costs, because the verdict was against law and evidence. Fitch having procured himself to be registered as sole owner without plaintiff's knowledge or consent, and afterwards sold her; that goods were taken in par payment for the business purposes of both defendants, who were carrying on business in Toronto under the style of Howland, Fitch & Co; that Rowland received part of the freight earned by the vessel, and that the verdict was contrary to the learned judge's charge.
      No one appeared to shew cause.

      DRAPER, C. J. -- think there should be a new trial with costs to abide the event, because I think the jury disregarded the law as laid down to them by the learned Chief Justice.
      It seems, however, to me, that the case with regard to Howland does not appear on the evidence as reported on the learned Chief justiice's notes so strong as stated by Mr. Crooks or asset out in the rule. It is not stated that there was evidence that the two defendants were in partnership, nor that the goods with which Barlow paid in part for this vessel, were received by the defendants as their goods in their joint business, and without such evidence the case appears to me feebly sustained against him.
      Then as to Fitch, the question of law partly depended on the question of fact, i. e., the determination of the latter was necessary in order to give room for the application of the proper rule. As a general rule one joint tenant of a chattel can not maintain an action against his co-tenant for a chattel in consequence of his having sold the chattel by sale not in market overt, as such sale only transfers the vendor's interest and makes the vendee co-tenant with the other joint owner. But on the other hand if the sale be in market overt, so as to transfer the entire property in the chattel to the purchaser, and oust the other part owner of their proprietary rights the sale would amount to a conversion. See Mayhew v. Herrick, 7 C. B. 229; Barnardiston v. Chapman, cited in note 4, Ea. 121. Mayhew v. Herrick, Maule, 3., puts the case of a tenant in common exceeding his authority by selling out and out to a purchaser who carries the chattel away, as a case which the other joint owner might treat as a conversion. And the sale in New York followed by the certificate of ownership. might be left to the jury as evidence that Fitch had ousted the plaintiff of his rights as a joint owner, and if they found the facts, as a matter of law I think plaintiff should recover, and in the absence of evidence to the contrary plaintiff would be entitled to a moiety, unless Howland was also a joint owner, and he had Fitch were not shewn to have only a moiety between them.
In Graves v. Sawcer, Sir T. Raym. 15, 1 Keb. 38, and 1. Lev. 29, it was held that one part owner cannot recover damages against another by an action at law upon a charge of fraudulently and deceitfully sending the ship to foreign parts where she was lost. There, as Maule, J., in a late case, says, the ship was only used as a ship, i. e., sent to sea by a part owner. In Chancery it has been held that one part owner can have no relief against another for sending a ship to sea without his consent. Strelly v. Winson, 1 Fern. 297. And see Wickham v. Wickham, 2 Kay & J. 494.
      Even the secret removal of entire chattels by one tenent in common without the consent or knowledge of the other, and for the purpose of selling them, and applying the proceeds to his own use, does not amount to a conversion.-- Jones v. Brown, 25 L. J. Exch. 345.
      Per cur.-- Rule absolute.
      Report on Common Pleas, Trinity Term 25. vic
      Upper Canada, Vol. 16

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