Bark v Gibson
| Jurisdiction | England & Wales |
| Judgment Date | 21 October 1836 |
| Date | 21 October 1836 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1196
EXCH. OF PLEAS.
S. C. 1 h. & H. 70; 7 L. J. Ex. 124. Referred to, Jones v. Just, 1868, L. R. 3 Q. B. 202; Manchester Ship Canal Company v. Horlock, [1914] 2 Ch. 205.
BARii v. gibson. Exch. of Pleas. 1838.-By deed-pall, dated 21st October, 1836, (he defendant sold and assigned, &c. to the plaintiff "all that ship or vessel called &c., with h£r masts, tackle, and appurtenances," and covenanted that he had then good right, full power, and lawful authority, to sell and assign the said premises to the plaintiff. To a declaration on this covenant, assigning as breaches, 1st, that at the time of making the deed-poll, the ship was wholly lost and destroyed, and was incapable of being assigned, &c.; 2ndly, that the defendant had not at that time good right, &c. to assign her; the defendant pleaded, 1st, that the ship was not, at the time of making the deed-poll, wholly lost and destroyed, (a) The Court refused the rule for a nonsuit, on the ground that it could not have been the intention of the parties that a deduction should be made in respect of a delby occasioned by the defendant's own agents; and therefore, notwithstanding the apparently unqualified words of the clause, the four weeks' delay, at all events, incurred no forfeiture. 3iM. &W.391. BARR V. GIBSON 1197 &c,; and 2ndly, that the defendant had good right, &c. to assign her. It appeared in evidence, that at the time of the sale the ship was on a foreign voyage:; that, on the 13th October, she went aground in a storm on the coast of the Prince of Wales's Island, and was left by the crew, who, however, had access to her afterwards ; that she lay aground five feet above water on one side, and with her masts standing, till the 24th, when the captain willed a survey, and, by the surveyor's advice, sold her ; that her bulk ends were strained, but that if there had been facilities at hand, and it had been a different season of the year, she might have been got oft' and repaired ; and that she had sustained no more damage on the 21st October than when she first took the ground :-Held, that the covenant of the defendant, that he had power to transfer her as a ship, was not broken. [S. C. I H. & H. 70; 7 L. J. Ex. 124. Referred to, .low* v. Jwt, 18(!8, I,. R. 3 Q. E. 202; Manchester Ship Canal Company v. [larlock, [1914] '2 Oh. 205.] Covenant. The declaration stated, that before the breach of covenant thereinafter mentioned, to wit, on the 21st of October, 1830, by a certain deed-poll then made by the defendant, the defendant, in consideration of 42001., did fully, freely, and absolutely grant, bargain, sell, assign, and set over unto the plaintiff' 64-64th parts or shares of and in all that ship or vessel called the " Sarah," of Newcastle, of the burthen of 317 tons, together with all and singular the masts, sails, &o., and appurtenances whatsoever to the said ship or vessel in anywise belonging or appertaining ; to have arid to hold the said G4-G4th parts or shares of and in the said ship or vessel, and all other the said premises, unto the plaintiff, his executors, administrators, and assigns, to his aud their own use and uses, and as his and their own proper goods and chattels, from thenceforth for ever; and the defendant did, in and by the said deed-poll, covenant, promise, and agree to and with the plaintiff, that at the time of the sealing and delivery [391] of the said deed-poll, the defendant had in himself good right, full power, and lawful authority to grant, bargain, sell, assign, and set over the said premises to the plaintiff, in manner and form aforesaid, as by the said deed-poll, relation being thereunto had, might more fully appear; and the plaintiff in fact said, that before and at the time of the making the said deed-poll, the said ship or vessel, with the masts, sails, &c., and appurtenances, was wholly lost and destroyed, and was incapable of being granted, bargained, sold, assigned, or set over, whereof the plaintiff, at the time of making the said deed-poll, and paying the said sum of 42001., was wholly ignorant; and that the defendant had not, at the time of making the said deed-poll and sealing the same, any power to grant, bargain, sell, assign, or set over the said ship and other the premises to the plaintiff as aforesaid; wherefore the plaintiff said that the defendant had not kept the covenant so made by him with the plaintiff as aforesaid, but had broken the same, and the said plaintiff had not, nor could he have, the possession of the said ship arid other the premises aforesaid, but had wholly lost the same, and the said sum of 42001., which he so paid as aforesaid, &c. Pleas-first, that at the time of making the said deed-poll in the declaration mentioned, the said ship or vessel, with the masts, sails, &c., and appurtenances, in the said deed-poll mentioned, was not wholly lost and destroyed, and incapable of being granted, bargained, sold, assigned, or set over, in manner and form as the plaintiff hath...
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