Isberg v Bowden
| Jurisdiction | England & Wales |
| Judgment Date | 30 May 1853 |
| Date | 30 May 1853 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 1599
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 1 C L R 722, 22 L J Ex 322 Referred to, Christie v Taunton, (1893) 2 Ch 175, Manley v Berkett, (1912) 2 K B 333
ISBERG v BoWDBN May 30, 1853-To an action for freight due upon a charter-party, the defendant pleaded, that the plaintiff entered into the chaiter-party as the master of the vessel, and foi and on behalf and as agent for the owner , that the plaintiff never had any beneficial interest in the chaiter-paity, nor had he any lien whatever on the fi eight, and that he brought the action solely as agent and trustee for the owner The plea then proceeded to state that the owner was indebted in a ceitam sum to the defendant, which he thereby offered to set Off against the plaintiff's demand -Held, that such debt was not "a mutual debt between the plaintiff and the defendant," within the true meaning of the statutes of Set-off, 2 Geo '2, c 22, s 18, and 8 Geo 2, c 24 , and therefore that the plea was bad The statutes of Set-off are confined to legal debts between the paitres, their sole object being to prevent cross actions between the same paitres [S C 1 C L R 722 , 22 L J Ex 322 Eeferred to, Chnbtie v Tauntmt, [1893] 2 Ch 175 , Manley v Beikett, [1912] 2 K B 333 ] This was an action on a chai ter party, for freight The declaration seated, that it was agreed by chaiteipaity, between the plaintiff, theiem clescnbed as the master of the ship " Clio," and the defendant, that the said ship should proceed to certain places in the aea of Azof (in the chartei party mentioned), and load a ciirgo of tallow, &c, to discharge the same at certain ports (also mentioned) at a certain freight, one half of such freight to be paid in cash on unloading and right delivery of the cargo, and the remainder by approved bills on London, at three months date, or in cash, less discount, at 51 per cent, per annum, at merchant's option The declaration then proceeded to state the loading of the vessel with a complete cargo, and the unloading thereof at the port of discharge, the amount of the [853] freight, that the defendant had notice, and that, although the defendant had paid the plaintiff one half the amount of the fieight, yet he had not paid the tesidue, 01 satisfied the plaintiff's claim by approved bills The defendant pleaded, as to 871 (5s, paicel of such lesidue, that the plaintiti entered into the charter party as the mastei of the vessel foi and on behalf and as agent of one Carl Gustaff Wolff, the owner , and that the plaintiff has no beneficial interest in the charterparty, and his no lion whatever on the residue of the freight or any part thereof, and that the plaintiff has brought this action solely as agent and trustee of the said owner , and that at the, time the residue of the freight became due and payable, the defendant gave the plaintiff notice th.it he elected to pay the residue of the freight in cash less discount, at &c, and not by bills , and further, that at the time when the residue of the freight became due and payable, the said C G Wolff (a) See the following case 1600 ISBERG V BOWDEN 8 EX 854 was and still is indebted to the defendant in .in amount equal to the said sum of 861 6s The plea concluded by ottering to set oft that amount in the usual way Demurrei and joinder The demuner was argued in last Easter Teim (May 4) by Unthank in support of the demui rer The plea is bad The decUiation is founded upon an exptess contract between the parties on the recoid, and the plaintift" is entitled to sue upon it without lefeience to his actual...
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