Kerswill v Bishop
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 224
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 Tyr. 602; 1 L. J. Ex. 227. Followed, Rusden v. Pope, 1868, L. R. 3 Ex. 269; Wilson v. Wilson, 1872, L. R. 14 Eq. 41; Anderson v. Butler's Wharf Company Limited, 1879, 48 L. J. Ch. 828.
224 KERSWILL V. BISHOP 2 C. & J. 529. [529] kerswill . bishop. Exch. of Pleas. 1832.-Accruing freight passes to the mortgagee of a ship, who takes possession before the conclusion of the voyage, notwithstanding the (i Geo. 4, c. 110, s. 45, which enacts that the mortgagee shall not be deemed owner except so far as necessary for the purpose of rendering the ship, &c., available, &c., for the payment of the debt, for securing the payment of which the transfer shall have been made. [S. C. 2 Tyr. 602 ; 1 L. J. Ex. 227. Followed, ttualen v. Pqie, 1868, L. K. 8 Ex. 269 ; Wilson v. Wilson, 1872, L. R. 14 Eq. 41 ; Anderson v. Sutler's Wharf Company Limited, 1870, 48 L. J. Ch. 828.] The Master of the Rolls sent the following case for the opinion of this Court:- On and previous to the 2nd of August, 1825, James Bishop, now deceased, was, and continued until the 5th of September following to be, except as herein is mentioned, the sole owner of a ship or vessel called the " Star," then belonging to the port of London, together with the tackle, apparel, and furniture of such ship or vessel; and he the said .Fames Bishop was on the 2nd of August, arid continued until the said 5th of September, indebted to the above-named plaintiff'in the sum of 13791. (is. (kl., wholly or in part for work and labour theretofore done and performed by the said above-named plaintiff'for the said James Bishop, in repairing and otherwise in and about, and for materials found for the said ship or vessel. The said James Bishop being so indebted to the said plaintiff'before the said 2nd of August, 1826, agreed to give the said plaintiff'a mortgage of the said ship or vessel as a security for the said debt; and such mortgage ao agreed to be given by him the said James Bishop was, with his consent, prepared for his execution as such security, by indenture, as hereinafter is mentioned. On the 5th day of the said month of August, 182f , he the said James Bishop made and executed a certain power of attorney under his hand and seal, and thereby recited, as the fact was, that he the said James Bishop being then about to leave England, and to reside for a time at Gibraltar, had requested his wife Jane Bishop (the above defendant) to take upon herself the care of his estate and property, and to act for him iu his affairs during his absence, which she the said Jane Bishop had agreed to do ; and then by the s;iirl power of attorney, so under his said hand and seal, he the said .James Bishop did [530] thereby make, ordain, depute, constitute, and appoint, and in his place and stead put, the said Jane Bishop his true and lawful attorney for him and in his name, for his use and on his behalf, at any time or times during the continuance of the said presents, when she his said wife, Jane Bishop, should see occasion or think proper, for him and in his name, amongst other1 things, to sell, mortgage, or otherwise assign, transfer, or dispose of, by way of security for any debt or demand owing by him, the ship or vessel "Star," or any part thereof, of which he was, as therein and thereby alleged, sole owner, together with the tackle arrd other materials belonging thereto; and to sign, seal, and deliver bills of sale, assignments, and such other writings as should be necessary for perfecting the sale of, or mortgaging, or otherwise transferring the said vessel, and to give receipts and discharges for the money for which the said ship or vessel should be sold, mortgaged, or transferred, and to demand, lev}', sue for, and recover1 of and from all persons whom it may concern all such sums of money as then were or should grow due to him, the said James Bishop, in respect of the said ship or vessel " Star," for freight or otherwise; and to sign receipts or discharges for the same, and to freight, settle averages, and effect insurances, hire all masters, seamen, and other servants, and discharge thenr at pleasure, and do all other acta and things which she the said Jane Bishop should think proper and expedient in the management of his said ship or vessel " Star," and all the appurtenances to the said ship or vessel belonging or1 appertaining; and generally to do all and every or any acts, deeds, matters, or things whatsoever in and about the estates, property, goods, merchandize, and affairs of him the said James Bishop, as amply and effectually to all intents and purposes as if he were personally present arid did the same ; he the said James Bishop thereby ratifying and confirming, and pro-[531]-mising and agreeing tit all times to allow, ratify, and confirm all and whatsoever his said wife should lawfully do or cause to he done in and about the premises therein aforesaid by virtue thereof. On the 5th of September, 182(i, she the said Jane Bishop, under and by virtue of the said hereinbefore mentioned power of attorney, so as herein aforesaid given to her, duly made and executed the said indenture so as hereinbefore mentioned, 2 C. ft J. 832. KERSWILL V. BISHOP 225 prepared with the consent of him the said James Bishop ; and the same was an indenture dfawa and made to bear date said 2nd day of August, 1826; and the same was made and expressed to be made by and between the said James Bishop of the one part, and the said plaintiff of the other part; and it was thereby recited, as the fact was, that the said James Bishop was then the sole owner of the ship or vessel called the " Star," belonging to the port of London, at which port she stood duly registered pursuant to act of Parliament; and a copy of the certificate of such registry was stated in the said indenture : and by which indenture was further recited the said debt of 13791. (is. Gd., and the said consent and agreement of the said James Bishop to give the said mortgage or security of the said ship or vessel by the said indenture. In pursuance of the said therein recited agreement, and for effectually securing to the said plaintiff the said sum of 13791. 6s. 6d., with lawful interest thereon from thenceforth, and also in consideration of...
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