McCalmont v Rankin
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1849 |
| Date | 01 January 1849 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 249
HIGH COURT OF CHANCERY
S. C. affirmed, 2 De G. M. & G. 403; 42 E. R. 928.
Reports of CASES ADJUDGED in the HIGH COURT OF CHANCERY before the Right Hon. Sir JAMES WIGRAM, Yice-Chancellor, to which are added some Cases before the Right Hon. - Sir J. L. KNIGHT BRUCE, Yice-Chancellor. By THOMAS HARE, of the Inner Temple, Esqr., Barrister-at-Law. Yol. VIII.. 1849, 1850 -12 & 13 Yict. 1852. [1] M'CALMONT v. eankin. Feb. 14, 15, 16, May 23, June 5, 6, Dee. 21, 1849; Jan. 12, 14, 16, 21, 30, 1850. [S. C. affirmed, 2 De GH M. & G. 403 ; 42 E. E. 928.] Monies were advanced by the Plaintiffs to M. M., upon an agreement that they should be reimbursed by the proceeds of a ship then about to be launched in New Brunswick, and of her cargo, which were to be consigned by M. M. to the Plaintiffs for sale, and a bill of lading of the cargo, and a power of attorney from the registered owner, enabling the Plaintiffs to sell the ship, were transmitted by M. M. to the Plaintiffs. M. M. afterwards transferred the ship and cargo to the firm of C. & G. The ship was thereupon registered in the names of C. & G. C. & G-. sold the ship and cargo to the firm of E. & P., and the ship was then registered in the name of P. A new master was appointed, and a new bill of lading signed, and the ship and cargo were consigned by E. & P. (with a power of attorney from P. to sell the ship) to E. & G., in which firm all the members of the firm of E. & P. were partners, except P. The Plaintiffs filed their bill against C. & G-., E. & P. and E. & G., and the assignees of M. M., to establish a lien on the proceeds of the ship, and on the cargo, under their agreement with M. M. The Defendant, E., one of the partners in the firms of E. & P. and E. & G-., was alone within the jurisdiction and served with the mbpmna.i Held that, in the absence of P., who appeared to be the registered owner of the ship, the Court could not make any decree establishing the Plaintiffs' lien on the proceeds of the sale of the ship. That, although it appeared by the result of an inquiry directed before the Master that the ship had been sold by E. & Gr., pending the suit, under the power of attorney from P., and that the proceeds had been accounted for by E. & Gr. to E. & P., no fraud being proved in the transactions under which those firms had acquired the ship and the proceeds, the Plaintiffs were not entitled to any relief in respect of the proceeds of the sale in the suit in which E. only appeared. That the claim of the Plaintiffs in equity to the proceeds of the ship would not be assisted by proof of notice by P. of the transactions between the Plaintiffs and M. M. . , ... There is nothing in the policy of the Ship Eegistry Acts to prevent a third party not having any registered share in a ship from acquiring from the owner an interest in 249 250 m'calmont v. eankin shake,! the proceeds of the sale of the ship in the hands of a purchaser, when the ship shall have been sold, the Court not being required to recognise any interest in such third person in the ship itself, semble. But whether, under a contract by which a party has an interest in the proceeds of the sale of ship, such party can compel the owner to sell the ship, or obtain a decree for the sale, quaere. The application of the rule of the Court to dismiss a bill in which the title to relief is founded upon allegations of fraud, if such fraud be not proved, depends not upon the use or omission in the bill of the word "fraud," but upon the fact whether the charges upon which the relief is sought are in their nature, such as this Court regards as constituting-fraud. The suit was founded upon an agreement entered into between the Plaintiffs, M'Calmont & Co., and the firm of Mackay Brothers, by the following letters :- [2] "Liverpool, February 1, 1841.-Messrs. Mackay Brothers.-Dear Sirs,-In reference to the conversation lately had with Mr. Hugh Mackay, and iii compliance with his request, we are now willing to accept the agency of your house at St. John's, N.B., on the following basis: namely, that you shall gradually wind up your establishment here, and remove to Glasgow, completing the same, if required, within six months from this date. That all business coming in to you after this date, as well as all shipments of supplies required by your St. John's firm, shall be transferred to us as your agents. That your establishment at Glasgow shall be considered as a branch of the St. John's house, and confined in its operations to the agency of the same, with the exception of any commission business you may have acquired since you have been established here, and which you may wish to retain; it being, how ever, hereby understood that you will not enter into any speculations whatever, without our concurrence. That we will grant you an open credit for 10,000 sterling, of which only 5000 to be at present available : the remainder, on deposit with us of a valid legal and first mortgage of property at St. John's, consisting of two mills and the appurtenants thereof, situate at Indian Town, and stated by you to be worth upwards of 15,000, which valuation is to be fully established to our satisfaction. This mortgage to contain full powers of sale, and to be considered as security, not only for the amount of the aforesaid credit, but for any further balance of general account, let the said balance arise from any or whatever transactions our connection with you as agents may lead us into; and the said mortgage to be an available security, at any period of the accounts. That commission on the account shall be charged as agreed upon. That we are not to be under a heavier cash advance, at any period, than 5000; [3] and, with a view to make this the easier, we will consider you entitled to credit in your general account for probable net proceeds of all con signments not realised, and for bills of lading in hand of all forthcoming property. That we shall have the full and absolute control, by sale or otherwise, of all consign ments on your account, whenever we may think proper, for our reimbursement, without reference to market rates. That insurance against fire risks shall be effected at your cost on the mortgage property, &c. If you approve the same, please hand us a letter to that effect.-We remain, &c., " M'CALMONT & Co." "Liverpool, February 16, 1841.-Messrs. M'Calmont & Co.-Dear Sirs,-We have now before us your favour of 1st instant, relative to our retiring from business in Liverpool, and going to Glasgow, or some other part of the United Kingdom, to establish ourselves there, and your accepting the agency thereof here, and of our St. John's house. We agree to the contents of your letter as above, but have to remark that we understand that you do not wish to preclude us from doing any commission business not requiring capital, such as sales of consignments without advances, for warding of goods, chartering of vessels, &c.; and, from the conversation had with you, we shall not expect you to be rigid, if any excess is incurred in consequence of your undertaking to ship those supplies, &c., which we were not anxious for you to do at present. We have no doubt all will go on smoothly and satisfactorily to all parties. -We are, &c., " mackay brothers." 8 hake,4. m'calmont v. rankin 251 The account was accordingly opened, and consignments and remittances were received by M'Calmont & Co. from, and advances made by them to, Mackay Bro-[4]-thers. The mortgage referred to in the first letter was effected by a deed of the 17th of April 1841. By a letter of the 30th of June 1841 Mackay Brothers, remitting various bills to M'Calmont & Co., which they requested might be placed to their credit, added : " The barque ' Miracle' will be launched in ten days. She will carry to your port 100 tons 15 in. birch; about 6 to 750 tons 20 in. white pine, average about 100 feet to the stick; the balance will be third and fourth quality deals." The advances by M'Calmont & Co. to Mackay Brothers, at the time this letter was received, amounted to 14,467; and on the 8th of July 1841, after the letter had been received, M'Calmont & Co. accepted a further draft of Mackay Brothers for 1500. By a letter of the 31st of July 1841 Mackay Brothers forwarded to M'Calmont & Co. several other bills of exchange for their account, and " also a power of attorney to sell the ship ' Miracle.'" By a letter of the same date Mackay Brothers wrote to M'Calmont & Co. as follows :-" We now hand you invoice, bill lading, and specification of the cargo per barque ' Miracle,' to your address, amount, as per invoice, 7616, 7s. 3d. sterling, which we hope will arrive to a good market, referring you to Mackay Brothers as to insurance.-We are," &e. JT The invoice was described as "Invoice of cargo shipped on board the barque ' Miracle,' Benson master, for Liverpool, and consigned to M'Calmont & Co. for sale." After specifying the particulars of the cargo of timber, and the prices, the freight of the ship to Liverpool was stated at 1000, and the ship " Miracle," 567 tons, at 9, 10s. per ton-5386, 10s.; making, with the cargo, the sum of 7616, 7s. 3d. [5] Shortly before these letters were written...
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