Atkinson v Cotesworth
| Jurisdiction | England & Wales |
| Judgment Date | 04 February 1825 |
| Date | 04 February 1825 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 873
IN THE COURT OF KING'S BENCH.
S. C. 5 D. & R 552; 3 L. J. K. B. 0. S. 104; and at Nisi Prius, 1 Car. & P. 339. Referred to, Japp v. Campbell, 1887, 57 L. J. Q. B. 81.
[647] atkinson against cotesworth. Friday, February 4th, 1825. Where the commander of a ship entered into a charter party, (not under seal,) whereby the charterer agreed to pay freight generally, without saying to whom: Held, that the owner having demanded and received the freight, the commander could not maintain an action for it against the charterer, although he had given him notice not to pay it to any one but himself. [S. C. 5 D. & E. 552 ; 3 L. J. K. B. 0. S. 104; and at Nisi Prius, 1 Car. & P. 339. Referred to, Japp v. Campbell, 1887, 57 L. J. Q. B. 81.] Assumpsit on a charter-party, not under seal, whereby it was mutually agreed between the plaintiff, commander of the ship " Agaphea," then lying in the. river Thames, and the defendant, that the vessel should take a cargo to Pernambuco, and bring a cargo thence to London or Liverpool, according to the directions of the charterers' agent in the Brazils, and deliver the same, on being paid freight, at and after a certain rate therein specified, by a good bill, payable at two months from the day of final discharge. Breach, non-payment of freight. Plea, non-assumpsit. At the trial before Abbott C.J., at the London sittings after last Trinity term, it appeared, that the plaintiff, at the time of making the charter-party, was the commander of the "Agaphea," whereof David Hodgins, then resident in Ireland, was owner. Before the vessel returned to England, Hodgins, being dissatisfied with the plaintiff, appointed one Bain as his agent, to receive the freight, and gave notice to the defendant to pay it to him, which he accordingly did, but before it was paid, the plaintiff demanded that it should be paid to himself and not to Bain. Upon these facts the Lord Chief Justice nonsuited the plaintiff, but gave his counsel leave to move to enter a verdict in his favour for 801., which appeared to be due to him from the owner. In Michaelmas term Gurney obtained a rule accordingly, and now [648] Scarlett and Campbell shewed cause. The plaintiff in this case was merely the agent of the owner, and made the charter-party for his benefit. In the absence of any interference by the owner, he might have claimed the freight from the defendant. But when the owner intervened, and desired the...
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