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V. BISHOP.

Exch, of Pleas, accrue from such voyage, when the mortgagor has been 1832.

at the expense of the outfit. Dean v. M'Ghie certainly KERSWILL goes that length. Splidt v. Bowles turned on the question

of the right to sue at law. Case v. Davidson was a question of abandonment, whether the freight would belong to the abandonee of the ship or of the freight.] The mortgagee has under the deed, before the voyage, an inchoate right, which is completed and perfected by his subsequently taking possession. There is nothing mischievous in such a right; for the sailors and persons furnishing the outfit have no specific right to look to the freight. It is submitted that the mortgagor of the ship in possession has always been deemed entitled to the accruing freight; and that there is nothing in the late registry act to alter the law in this respect.

tence.

Shee, contrà.—The ship only was mortgaged, and throughout the whole conveyance the freight is not mentioned; and indeed, according to Robinson v. Macdonnell (a), an assignment of the freight, earnings, and profits of a ship does not extend to pass freight not then in exis

The only question therefore is, whether freight accruing after the mortgage will pass as incident to the ship.

Before the 6 Geo. 4, c. 110, the mortgagee appeared as absolute owner. Formerly, in cases of bankruptcy, in which such points would otherwise have been most likely to arise, the assignees were entitled to the freight, as the ship passed (6) under the order and disposition clause. It has been assumed on the other side, that, as the law stood before the 6 Geo. 4, c. 110, assignment, transfer, and mortgage, were synonymous. That was not so; for, the absolute assignee and the mort

(a) 5 M. & S. 228.

(b) See 6 Geo. 4, c. 16, s. 72, which enacts, that the order and

disposition clause shall not apply in case of a mortgage of a ship duly registered, &c.

KERSWILL

BISHOP.

gagee stood in a very different situation. The cases Exch. of Pleas,

1832. which occurred on the question whether the mortgagee was liable as owner for necessaries supplied to the ship, are applicable. In Jackson v. Vernon (a), it was decided, that the mortgagee was not absolute owner, and not liable for necessaries. The Judges drew a distinction between a mortgage and an absolute assignment. Chinnery v. Blackburne was there said by Mr. Justice Wilson to have been decided on the ground that as a mortgagee out of possession was not liable to the charges of the ship, so he was not entitled to the freight. Lord Mansfield, in Chinnery v. Blackburne, expressly repudiates the notion that the mortgagor is the agent of the mortgagee. It is submitted that there is no principle of law which decides this case against the defendant, and that none of the cases which have been cited are applicable. In Morrison v. Parsons, the assignment was absolute, and not by way of mortgage; and the assignor was the captain, who was in possession of her before and through the voyage. Lawrence, J., says,

Sharpe v. Gladstone is the only case that seems to bear on the point; according to the idea of Lord Ellenborough, in his judgment there, after the abandonment of the ship, the underwriters on a chartered ship would be entitled to freight earned afterwards.” Now, Sharpe v. Gladstone was a case of abandonment; and in that case, as well as in Thompson v. Rowcroft (6), Lord Ellenborough treated the abandonee as absolute and unqualified owner, as he undoubtedly is. In Case v. Davidson, both Mr. Justice Abbott and Lord Ellenborough express themselves most strongly on this point. All the cases of abandonment therefore must be viewed as cases of absolute sale, not of mortgage. Splidt v. Bowles was decided on the technical rule of law. It was a case between the assignees under a

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(a) 1 H. Bl. 114.

(6) 4 East, 52.

KERSWILL

BISHOP.

Exch. of Pleas, commission of bankrupt against the owner and the assignee 1832

under an assignment by the owner. The Court held that the right of suing passed to the assignees under the commission. [Lord Lyndhurst, C. B.-Suppose the mortgagee of a real estate takes possession a few days before the rentday.] The mortgagee of a real estate is the legal owner: the statute 6 Geo. 4 has declared that the mortgagee of a ship is not the legal owner. All the cases, therefore, which were decided on the ground of the party being owner are inapplicable. [Bayley, B.- Is he not owner when he takes possession?] No, he is certainly not liable for expenses. Is he to have the profits without the liability? Dean v. M'Ghie is not an authority, except from the dicta of the Judges, which were extrajudicial; for, it was a case of money had and received, in which the question was, whether the sum paid for the portage bill was to be allowed; and the Court in their judgment shew that they did not think it necessary to decide the point now under discussion. The Chief Justice said in that case, as it has been said to. day on behalf of the plaintiff, that the object of the statute was to confer a benefit on mortgagees, by exempting them from charges and responsibilities to which they were before liable. This opinion cannot be supported; for, there was no such liability before. The old registry acts imposed no such liability. This point has been decided again and again. Annett v. Carstairs (a), Abbott on Shipping (6), Briggs v. Wilkinson (c), Jennings v. Griffiths (d). The registry acts were passed with a very different purpose. Lord Ellenborough says, in Robinson v. M'Donnell (e), “they were passed for the purposes of public policy, to confine to British subjects and to British built ships the benefit of British trade. They were not intro

(a) 3 Camp. 354.
(b) Page 17
(c) 7 B. & C.30; 9 D. & R. 871.

(d) 1 Ryan & M. 42.
(e) 5 M. & S. 238.

KERSWILL

BISHOP,

duced with any view to the convenience of individuals, or Esch. of Pleas,

1832. to give notoriety to this species of property, and to the conveyances affecting it; but the notoriety, as far as there is any, is a consequence of the measures adopted to effect the policy of the state.” There was, however, an inconvenience which had arisen under the old registry acts. The assignees of an owner who had become bankrupt were entitled to the ship which had remained in the order and disposition of the bankrupt, though the legal interest was vested in a mortgagee by the registry. Kirkley v. Hodgson (a), Monkhouse v. Hay (6), Hay v. Fairbairn (c), Robinson v. M'Donnell (d). This was the reason of the interference of the Legislature; and, to remedy the mischief, they first declare, by section 45, what is the limited estate of the mortgagee; and they deduce as a corollary that the assignees of the bankrupt mortgagor shall have no interest in her as against the prior right of the mortgagee, that is, that the assignee shall only be entitled to the surplus. It is expressly enacted that the mortgagor shall not be the owner, thus taking away the only ground on which all the cases cited on the other side have proceeded. The 72nd section of the new Bankrupt Act, 6 Geo. 4, c. 15, shews that the case of a mortgage is treated as quite distinct from that of a sale, and is an exception to the general rule as to transfers and assignments; as the freight then belongs to the owner, and the mortgagee is no longer owner, it must go to the mortgagor, not to the mortgagee. This is in concordance with the civil law, according to which profits to come are not the subject of pledge (e).

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Maule, in reply.-Pothier, in the passage referred to, was speaking of pawning, and pointing out the distinction be

(a) IB. & C.588; 2 D. & R. 848.
(b) 2 B. & B. 114.
(c) 2 B. & A, 193.

(d) 5 M. & S. 228.

(e) Pothier Traité de Nantissement.

Exch, of Pleas, tween pawning and hypothecation. He affirms merely 1832.

that things not in existence are not the subject of the contract of pignus, which requires delivery (a).

KERSWILL

Bishop.

The following certificate was afterwards sent.

This case has been argued before us by counsel. We have considered it, and are of opinion that the plaintiff is entitled to the freight now unpaid.

LYNDHURST. J. BAYLEY. W. BOLLAND. J. GURNEY.

(a) See Dig. 13, 7, 9,2; proprie pignus dicimus quod ad creditorem transit, hypothecam cum non transit,

nec possessio ad creditorem. See also Abbott on Shipping, 11.

JOHNSON v. POPPLEWELL. If an affidavit In this case the declaration in assumpsit was delivered (verifying a plea in abatement to the defendant's agent in London after post time on Sawhich refers to the declara- turday, the 28th April, and the defendant, who lived in tion) is sworn Yorkshire, pleaded in abatement that the promises conbefore the declaration is deliver- tained in the declaration were made jointly with one James ed, the plaintiff

Wilkinson. The affidavit of verification was sworn in may treat the plea as a nullity Yorkshire upon the 17th April, on which ground the and sign judg

plaintiff treated the plea as a nullity, and signed judgThe Court set aside the judg.

ment. ment on pays ment of costs, on an affidavit by Starkie moved for a rule to set aside the judgment for defendant's agent in town irregularity, or to set it aside on an affidavit of merits which that he was informed and be

was made by the defendant's London agent, who swore lieved there that he had been informed and believed that the defenwere merits, there being circumstances of contrivance in the delivery of the declaration.

ment.

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