Charter-party. General ship. Bill of lading. Freight. tish ship, therefore, forms an exception to the rule, that the whole legal estate or interest in all property mortgaged vests in the mortgagee. The mortgagor still retains a legal interest, which he may assign, subject to the mortgage (i); but should the mortgagee take possession of the vessel before the conclusion of her voyage, he will be entitled to the whole of the accruing freight for payment of his debt (k). Sometimes a vessel is hired for a given voyage. The instrument by which such hiring is effected is termed a charter-party. Whether the legal possession of the ship passes to the hirer (or charterer, as he is called) depends on the stipulations contained in the charterparty, such as whether the charterer or the owner is to provide the seamen, and keep the vessel in order (l). Where a merchant ship is open to the conveyance of goods generally, it is called a general ship.. The receipt for the goods given by the master is called the bill of lading it states that the goods are to be delivered to the consignee or his assigns; and by the custom of merchants, the bill of lading, when indorsed by the consignee with his name, becomes a negociable instrument, the delivery of which passes the property in the goods (m). The money payable for the hire of a ship, or for the carriage of goods in it, is the freight, which, whether accrued or accruing, is assignable in the same manner as any other ordinary chose in action (n). (i) Ex parte Jones, 2 Cro. & Jer. 513; S. C. 2 Tyrw. 671. (k) Dean v. M'Ghie, 4 Bing. 45; S. C. 12 J. B. Moore, 185; Kerswill v. Bishop, 2 Cro. & Jer. 529; S. C. 2 Tyrw. 602. (1) Dean v. Hogg, 10 Bing. 345; Fenton v. City of London Steam Packet Company, 8 Ad. & (m) Caldwell v. Ball, 1 T. Rep. 205, 216. (n) Douglas v. Russell, 4 Sim. 524; 1 M. & K. 488; Leslie v. Guthrie, 1 New Cases, 697. PART II. OF CHOSES IN ACTION. CHAPTER I. OF ACTIONS EX DELICTO. In addition to moveable goods, or choses in possession, we have observed (a), that there existed also in ancient times choses in action, or the liberty of proceeding in the courts of law either to recover pecuniary damages for the infliction of a wrong or the nonperformance of a contract, or else to procure the payment of money due. The actions to be thus brought were, of course, not real, but purely personal actions. Real actions were brought for the recovery of land or real property; but the above mentioned actions were against persons only, and the object was merely to obtain from them money, being the only recompense generally available. In this respect the law has undergone no change. A money payment is all it can generally obtain for the person aggrieved (b); although equity, if resorted to in the Court of Chancery, will often give a more appropriate remedy, by issuing an injunction to restrain the wrong-doer from continuing his wrong, or by decreeing the specific performance of a contract. In many cases, however, money is a sufficient recompense; and then the right to bring an action at law, in other words a legal chose in action, constitutes a valuable kind of personal property. (a) Ante, p. 4. (b) The actions of detinue and replevin are exceptions, see ante, Money only is obtained by an action at law. licto and ex contractu. The infliction of a wrong, and the nonperformance of a contract, are evidently the two grand sources from which personal actions ought to proceed. If one man commits a wrong against another, justice evidently requires that he should give him satisfaction; and if one man enters into a contract with another, he certainly ought to keep it, or make reparation for its breach; or if the contract be to pay a sum of money, the money Actions ex de- ought to be duly paid. Personal actions are accordingly divided by the law of England into two great classes, actions ex delicto, and actions ex contractu (c). The former arises in respect of a wrong committed, called in law French a tort; the latter, in respect of a contract made for the performance of some action, which thus becomes a duty, or for the payment of some money, which thus becomes a debt. Let us consider, in the present chapter, the right of action which occurs ex delicto, or in respect of a tort. Maxim actio personalis moritur cum personâ. Exceptions on death of the party injured. The ancient law, in its dread of litigation, confined the remedy by action for a tort or wrong committed, to the joint lives of the injurer and the injured. If either party died, the right of action was at an end, the maxim being actio personalis moritur cum personâ (d). In this rule, actions ex delicto only were included; of which, however, there seem to have been more than any other in early times. But by an early statute (e), the same action was given to the executor for any injury done to the personal estate of the deceased in his lifetime, whereby it became less beneficial to the executor, as the deceased himself might have brought in his lifetime. And by a recent statute (ƒ), an action is given to the executors or administrators of any person de (c) 3 Black. Com. 117. (d) 1 Wms. Saund. 216 a, n. (1). (e) Stat. 4 Edw. III. c. 7, de bonis asportatis in vitá testatoris, extended to executors of execu- ceased, for any injury to the real estate of such person, committed within six calendar months before his death, for which an action might have been maintained by him; so that the action be brought within one year after the death of such person; and the damages, when recovered, are to be part of the personal estate of such person. And by a still more recent statute (g) it is provided, that whenever the death of a person shall be caused by such wrongful act, neglect or default, as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the wrong-doer shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. Under this act, one action only can lie for the same subject-matter of complaint; and such action must be commenced within twelve calendar months after the death of the deceased (h), in the name of his executor or administrator (i), and must be for the benefit of the wife, husband, parents, grandfather and grandmother, stepfather and stepmother, children, grandchildren and stepchildren of the deceased, in such shares as the jury shall direct (k). Previously to this statute, a man who had been maimed by another could recover compensation for the injury; but if he died of his (g) Stat. 9 & 10 Vict. c. 93. (k) Sects. 2, 5. This act is a specimen of the common absurdity of modern acts of parliament, in introducing an interpretation clause in one section just to vary the meaning of another. It enacts in one section that the action shall be for the benefit of the wife, husband, parent and child; and in another section, that the word "parent" shall include father and mother, and grandfather and grandmother, and stepfather and stepmother; and the word "child" shall include son and daughter, and grandson and granddaughter, and stepson and stepdaughter. Now the words "parent" and "child" occur only in the one place just mentioned, besides this interpretation clause. Why not therefore say at once what is really intended? Death of the wrong-doer. wound, his family could obtain no recompense for the loss of a life which might have been their only dependence. And even now, when the death of a person is not caused, no action can be brought by his executor or administrator for any injury which affected him personally, if it did not touch his property. Thus it has been held, that an executor or administrator cannot have an action for a breach of promise of marriage with the deceased, where no special damage can be stated to have accrued to her personal estate (7). Not only the death of the injured party, but also that of the wrong-doer, formerly put an end to every action which arose from a tort or wrong; and this was the case up to a very recent period; although if the executor or administrator had profited by the wrong done, the injured party was able to recover from him the money or goods he had thus gained (m). But by a recent statute (n) an action may now be maintained against the executors or administrators of any person deceased, for any wrong committed by him within six calendar months before his death against another person, in respect of his property real or personal; so as such action be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person. And the damages to be recovered in such action are to be payable in the like order of administration as the simple contract debts of such person. The remedy afforded by this statute does not preclude such action as might have previously been brought against the executor or administrator (o). (1) Chamberlain v. Williamson, 2 Mau. & Sel. 408, 415. (m) Powell v. Rees, 7 Ad. & El. (n) Stat. 3 & 4 Will. IV. c. 42, s. 2. (0) Powell v. Rees, ubi supra. |