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aforesaid, on her homeward voyage to the port of London; Exch. of Pleas, and, on or before the 3rd of May, 1829, arrived in the river Thames, with such last-mentioned cargo on board; and on the said 3rd of May, 1829, while the said ship or vessel, the Star, was on her said voyage to, and shortly before she reached, the said port of London, the said plaintiff, by an agent, duly by him authorized in that behalf, took and obtained possession of the said ship or vessel, the Star, and her papers, and continued so possessed thereof, until the sale thereof hereinafter mentioned: and while in such possession of the said plaintiff, the said ship or vessel continued and completed the said last-mentioned voyage from the said harbour of Kingston to and entered the said port of London respectively aforesaid, with the said last-mentioned cargo on board. Shortly after such lastmentioned arrival in the said port of London, and while the said ship or vessel continued in such possession of the said plaintiff, the said ship or vessel, the Star, went into the West India Docks, and there delivered the whole of the said cargo into the warehouses of the West India Dock Company, from whence the same and every part thereof hath been delivered to the respective consignees thereof; and some of such consignees thereof have paid to the said plaintiff the freight thereupon due from them respectively; but the other of such consignees, on receiving their respective consignments, declined to pay the freight thereof to the said plaintiff, but respectively deposited the amount thereof in money with, and the same is now in the hands of the said West India Dock Company, pursuant to the act of Parliament in that case made and provided. On the 16th September, 1828, the said James Bishop departed this life, having first made his will; and thereby appointed the said defendant sole executrix thereof: and which will she duly proved, and is now the sole legal personal representative of the said James Bishop; and as such she now

Fxch. of Pleas, claims the freight so as herein aforesaid earned by the said

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ship or vessel, the Star; the amount of which has been deposited with, and is now in the hands of the said West India Dock Company, as hereinbefore is stated; and the said plaintiff claims the said last-mentioned freight, as such mortgagee of the said ship or vessel, the Star, and being in such possession thereof on the completion and termination of the said last-mentioned voyage. The plaintiff bath since sold and disposed of the said ship or vessel, the Star, and hath applied the whole of the money produced thereby, as well as the said freight by him received, in part payment of his said debt; but the money so received by the said plaintiff is insufficient to pay and satisfy the whole of the debt.

The question was, whether, under all the circumstances, the plaintiff or the defendant was entitled to receive the said freight unpaid, and the amount of which was in the hands of the said West India Dock Company.

Maule, for the plaintiff.-This is the case of a mortgaged ship, which is taken possession of by the mortgagee, as she is on her homeward voyage. And the question is, whether the mortgagee or the representative of the mortgagor is entitled to the freight of such homeward voyage. The point intended to be raised is, whether, since the 45th section of the new registry act (a), freight so accruing belongs to the mortgagor or mortgagee.

Before that enactment, it is clear, from many cases, that the mortgagee so taking possession is entitled to the accruing freight, and that the transfer of the ship was a transfer of the accruing freight. Now, the 45th section of the 6 Geo. 4, c. 110, was made for the benefit of mortgagees, and to relieve them from liabilities to which they might

(a) 6 Geo. 4, c. 110.

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otherwise have been subject; and not to narrow the rights Exch. of Pleas, which they previously had: amongst which was the right of taking possession. The statute provides, "that the officers shall in the entry in the book of registry, and also on the certificate of registry, state and express that such transfer was made only as a security for the payment of a debt or debts, or by way of mortgage, or to that effect. And the person or persons to whom such transfer shall be made, or any other person or persons claiming under him or them as a mortgagee or mortgagees, or a trustee or trustees only, shall not, by reason thereof, be deemed to be the owner or owners of such ship or vessel, share or shares thereof: nor shall the person or persons making such transfer be deemed by reason thereof to have ceased to be an owner or owners of such ship or vessel, any more than if no such transfer had been made; except so far as may be necessary for the purpose of rendering the said ship or vessel, share or shares so transferred, available, by sale or otherwise, for the payment of the debt or debts for securing the payment of which such transfer shall have been made." It is quite clear from the exception, that the legislature intended to benefit the mortgagees of ships, and not to narrow their rights. The present case falls within the very words of the exception; as it is necessary that the plaintiff should be owner, for the purpose of rendering the ship available, by sale or otherwise, for the payment of the debt for securing the payment of which the transfer was made. Numerous cases shew that the transfer of the ship transfers the accruing freight. Morrison v. Parsons (a) was the case of an assignment of a ship by a person who had chartered her previous to the assignment, and who afterwards assigned the charter-party to a third person; and yet the Court held that the as

(a) 2 Taunt. 407.

Exch. of Pleas, signee of the ship was entitled to the freight earned sub

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sequently to the assignment, as incident to the ship. In Case v. Davidson (a), the question was between the underwriters on the ship, and the underwriters on the freight. A ship and freight had been insured by different underwriters; and, on a capture, both ship and freight were abandoned to the respective underwriters, and a total loss was paid both on the ship and the freight. Afterwards the ship was recaptured, and earned freight; and it was held, that such freight belonged to the underwriters on the ship, as incident to the ship. This case was much discussed, and it was taken for granted both at the bar and by the bench, that a contract of sale of the ship would carry the right to the accruing freight. It seems never to have struck the learned persons engaged in that case, that there could be any doubt, that, in the ordinary case of the sale of the ship, the growing freight would pass: though such a point would have been of great importance in the case. That was a very strong decision, because, in the contract of insurance, the word ship does not include freight; as, if the policy had been open, and the underwriters on the ship forced to pay, the freight would not have been included; and yet so strong did the Court of King's Bench and the Court of Exchequer Chamber feel the general rule to be, that they held the underwriters on the ship entitled to the freight. In Splidt v. Bowles (b), it was held, that a covenant in a charter-party to pay freight was not transferred to the vendee by bill of sale of the ship made during the voyage, but that the assignees of the owner, who had become bankrupt, were entitled to recover the freight. That case is not inconsistent with the argument for the present plaintiff, as it would not follow from the vendee or mort

(a) 5 M. & S. 79; 2 Brod. & Bing. 379, S. C. in error.

(b) 10 East, 279.

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gagee having a right to the freight, that he would have a Exch. of Pleas, right to sue for it on a contract by deed made by the owner. The ths there would be held in trust for the vendor, as the bankruptcy does not pass trust property (a). Lord Ellenborough, in Splidt v. Bowles, merely considers who had the title at law under the covenant. [Bayley, B.-The certificate there was certainly worded at law (b).] The law then, before the passing of the 6 Geo. 4, c. 110, being clear in this respect, it is equally clear that the 45th section of that statute does not alter it as against mortgagees, especially as against mortgagees who have taken possession. Dean v. M'Ghie (c) is an express authority upon this point. There, as here, the mortgagees took possession of the vessel at Gravesend, as she was returning to her port. Gaselee, J., says, the statute 6 Geo. 4, c. 110, was passed for the benefit of the mortgagee, and not to deprive him of any means of indemnity against loss. And afterwards he says "But the cases all shew that the mortgagee of the ship has a right to the freight." [Lord Lyndhurst, C. B.— In Chinnery v. Blackburne (d), it was held, that, when the mortgagee does not take possession, he is not entitled to the freight.] In that case, the mortgagee had no right to receive it; because he allowed the mortgagor so to do: he left the right of lien in the hands of the mortgagor, who delivered the goods; and so an assumpsit arose to pay the freight to him. The mortgagor might, therefore, be considered as the agent of the mortgagee. [Bayley, B.-The real question is, whether a mortgagee who takes possession at the conclusion of the voyage is entitled to the freight to

619.

(a) Winch v. Keeley, 1 T. R.

(b) The certificate is not given in the printed report; but it is clear from the judgment that the certificate would be as stated by

the learned Baron.

(c) 12 J. B. Moore, 185; S. C. 4 Bing.45.

(d) 1 H. Bl. 117, in notes. See the same case in 3 Doug. 394 by the name of Chinnery v. Blackman.