Mortimer and Others, Assignees of Merriman, a Bankrupt, against Fleeming
| Jurisdiction | England & Wales |
| Judgment Date | 16 May 1825 |
| Date | 16 May 1825 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 1004
IN THE COURT OF KING'S BENCH.
S. C. 6 d. & R. 176.
1004 MORTIMER V. FLBEMING 4 B. & C. 120. [120] mortimer and others, Assignees of Merriman, a Bankrupt, against fleeming. Monday, May 16th, 1825. A. agreed with B. for the absolute purchase of a ship for the price of 78501., but A. being unable to pay the purchase money, it was stipulated that the sale and transfer of the ship should be deferred until he could pay the purchase money, in the manner thereinafter mentioned, and that in the mean time B. should continue the legal owner of the ship, and should be responsible for her outfit, &c., so as to enable the ship to proceed on her intended voyage to India and back, under the command of A., and on his account. Covenants by A. to pay to B. all monies, costs, and charges which, since the completion of the last voyage, had been paid by him on account of the outfit, or costs of supplying the ship and the premiums of insurance until the transfer was made, and also, that A. should pay all port charges and disbursements subsequent to the sailing of the ship on her then intended voyage, and to pay the purchase money in manner following; first, by two instalments of 5001. each, the further sum of 40001. by bills of lading and invoices for goods shipped on board the ship for her then intended voyage, and which goods were to be made deliverable to B. or his assigns, to the intent that he might dispose of the same in India, and invest the proceeds in other goods to be shipped on board the ship, and to be made deliverable to B. in London, or invest the same in bills, and then the net amount of such goods or bills to be in further payment of the purchase money. Covenant by B., that at the expiration of three months next ensuing the arrival and report inwards of the ship in London from her then, intended voyage, and upon A.'s paying the sum thereby intended to be secured, and performing the covenants therein contained, that he (B.) would transfer to him the ship. At the time of the execution of the agreement the ship was in the port of London, where she was registered. There was no indorsement of the agreement on the certificate of the registry; but in pursuance of the agreement A. had possession, and fully loaded her on his own account, and sailed on the voyage to India. A. paid to B. the two instalments, and delivered to him a bill of lading of goods valued in the invoice at 40001., which were consigned by B. to merchants at Calcutta. A. left those goods at Madras, and then proceeded to Calcutta, where he relinquished the command. A. became bankrupt, and did not complete the purchase of the ship, nor pay the residue of the purchase money : Held, first, that an executory contract for the sale of a ship was within the statute 34 G. 3, c. 68, s. 15, and, therefore, that the contract for the sale of the ship was void for want of an indorsement of the agreement on the certificate of registry. Held, secondly, in assumpsit by the assignees of A. against B., that the true principle of taking the account between the parties was to charge the assignees for the sum for which the ship might have been let or chartered for such a voyage, with such expenditure (if any) as properly belonged to the freighter of the ship, and such further expence and loss, if any, as B. had been put to by the misconduct of A. in the management of the ship, and to allow to the assignees of A. the sums received by B. in respect of the transaction. ò [S. C. 6 D. & R. 176.] Assumpsit brought by the plaintiffs, as assignees of one Merriman, against the defendant for money had and received for the use of Merriman before he became bankrupt, and for money lent and advanced by the bankrupt to the defendant, and for wages due from the defendant to the bankrupt as commander of a ship or vessel for the defendant, and for interest. The declaration also contained counts for money had and received [121] by the defendant for the use of the plaintiffs as assignees, &c. &c. Plea, the general issue. The cause was tried at the London sittings after Michaelmas term, before Abbott C.J., when a verdict was found for the plaintiff's,, subject to the opinion of this Court on the following case : A commission of bankrupt duly issued against the bankrupt, bearing date January 25, 1820, founded on an act of bankruptcy committed the 17th day of December 1819, and under the commission the plaintiffs were duly chosen assignees of the bankrupt. The defendant was the sole owner of the ship " Ganges," registered in the port of London. On the 27th of May 1817, the defendant and the bankrupt duly executed articles of agreement, reciting that after the arrival of the " Ganges " in the port of London from her last voyage, and on her completing such voyage, Merriman, who was 4 B. & C. 122. MORTIMER V. FLEEMING 1005 master of the ship, contracted and agreed with the defendant, sole owner thereof, for the absolute purchase of the ship and her appurtenants, in the state and condition the same were in on the completion of the said voyage, at or for the price or sum of 73501. sterling; but that Merriman then being unable to pay the whole of the purchase-money, it was further agreed between them, that the sale and transfer of the ship and her appurtenances unto Merriman should be deferred until he could and should pay the purchase-money in manner thereinafter mentioned; and that in the meantime, for the benefit and accommodation of him, Merriman, he, Fleeming, should be and continue interested in and entitled to the said ship and her appurtenances as legal owner thereof, and should be responsible also for her...
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Hughes v Morris
...been intended to extend to mere contracts or agreements. The decisions in Biddull v. Leeder (1 B. & C. 327) and Mortimer v. Fleeming (4 B. & C. 120) shewed the inconvenience arising from the former atate of the law ; and the omission in the Act of Geo. IV. and the subsequent Acts must [353]......
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Duncan v Tindall
...are different, -the alteration probably being occasioned by Biddell v. Leeder, 1 B. & C. 327, 2 D. & E. 449, and Mortimer v. Fleemmg, 4 B. & C. 120, 6 D. & R. 176. The 31st section of that act,-which is precisely the same as the 3 & 4 W. 4, c. 55, s. 31, and 8 & 9 Viet. c. 89, s. 34,-enacte......