Gladstone v Birley
| Jurisdiction | England & Wales |
| Judgment Date | 03 March 1817 |
| Date | 03 March 1817 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 993
HIGH COURT OF CHANCERY
See the Statement of the Case of "Birley assignee of Holt, Bankrupt, v. Gladstone and Another," in 3 Maule & Selwyn, 205.
gladstone v. birley. Rolls. Dec. 6, 1816 ; March 3, 1817. [Sec the statement of the ease of " Birley, assignee of Holt, Bankrupt, v. Gladstone and Another," in 3 Maule & Selwyn, 205.] Construction of clause in a charter-party, whereby the parties " mutually bound themselves, especially the owners " the ship and tackle, and the freighter the goods to be taken on board," in a penal sum, " to the true and punctual performance of every article therein contained," not to give to the ship-owners any lion in equity, on the goods brought home, either for dead freight, or demurrage. Only one construction of the clause, at law and in. equity. The court of K. B. having determined, " that the ship-owners had not a lien " upon the goods brought home, for money claimed to be due in respect [402] of " goods put on board and relanded, nor in respect of dead freight, nor in respect of " demurrage," the present bill was filed by the Defendants at law, for the purpose of obtaining a declaration that the ship-owners were entitled to a lien, in equity by virtue of the clause in the charterparty. Sir S. Romilly and Home, for the Plaintiffs. Stated the question to be, whether, the parties having added this special covenant 0. XV.-32 994 GLADSTONE V. BTRLKY 2 MER. 403, to the usual provisions of a chartcrparfcy, the covenant should be taken to be totally inoperative and ineffectual. They said, it does not follow, because a court of law could not give effect to it, that therefore a court of equity is unable to do so. Lord Ellenlorough would not say that an action might not lie on the covenant for damages (3 M. & S. 216, 21V); and, if such an action might lie, it would go far to determine the right to a lien in equity. In thin view, the decision at law did not at all affect the . question of covenant. Wellierell and Keys, for the Defendant. The Master of the Rolls [Sir Win. Grant]. The question in this case is, whether the last clause in the charterparty can have any different effect in equity from what it has been determined to have at law ? The clause is this-" And, lastly, for the true " performance of every article, matter, and thing herein contained, the parties " hereby mutually bind and oblige themselves, especially the owners the ship, her " tackle and appurtenances...
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...(2 Taunt. 407); Lindsay v. Gibbs (22 Beav. 522); Rooke v. Kensington (2 K. & J. 753); Lister v. Payn (11 Si'm. 348); Gladstone v. Birley (2 Mer. 401). Mr. Rolt, in reply. Judgment reserved. The following written judgment was delivered out to the parties by lord chelmsford, after he had resi......
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...Law of Scotland, tit "Dead Freight"; Haddow v. Parry, 3 Taunt. 803; . Bell'a Commentaries, 7th edit., pp. 620 and 621; Gladstone v. Birley, 2 Mer. 401. The Lord Chancellor (Hatherley.) - The case of Kirchner v. Venus (12 Moo. P.C. 361) is distinguish-. able on the ground that there was no s......
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...C. J., now delivered the judgment of the court. (c) Notwithstanding the observations of Sir W. Grant, M. E.3 in [Gladstone v. Birley (2 Merivale, 401) on the clause in our English charter-parties, by which the merchant " binds the cargo to be laden," that clause appears to be conformable to......
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Deere (John) Ltd. v. Firdale Farms Ltd. (Receivership), (1987) 50 Man.R.(2d) 45 (CA)
...27 O.R. 349, refd to. [para. 10]. Marcy v. Pierce (1899), 4 Terr. L.R. 246, refd to. [para. 10]. Gladstone v. Birley (1817), 2 Mer. 401; 35 E.R. 993, refd to. [para. 11]. Re Leith's Estate, Chambers v. Davidson (1866), L.R. 1 P.C. 296 (P.C.), refd to. [para. 11]. In re Wait, [1927] 1 Ch. 60......
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