CAP. LXXXIII. An Act to amend certain Provisions in the Ecclesiastical An Act for further regulating the Use of Locomotives on Leasing Act, 1858 (29th June, 1865) 20 Turnpike and other Roads for Agricultural and other .. ib. CAP. LXXXVI. ib. An Act to amend the Law of Partnership (5th July, 1865) 34 CAP. LXXXVIII. An Act to remove Doubts as to the Validity of Colonial Laws An Act for the recording of Titles to Land in Ireland (5th (29th June, 1865) .. ib. July, 1865) ib. An Act to remove Doubts respecting the Validity of certain Marriages contracted in Her Majesty's Possessions An Act to provide for the better Government of Greenwich abroad (29th June, 1865) .. Hospital, and the more beneficial Application of the Revenues thereof (5th July, 1865) .. 21 41 An Act to consolidate the Offices of Comptroller-General of An Act to repeal Enactments relating to Powers of the Comthe Exchequer and Chairman of the Commissioners for auditing the Public Accounts; and for other Purposes (5th July, 1865) CAP. XCIV. 42 missioners of the Admiralty, and to various Matters under the Control of the Admiralty (5th July, 1865) 59 CAP. CXIII. An Act to amend the Laws relating to the Inland Revenue An Act to amend the Naval Discipline Act, 1864 (5th July, (5th July, 1865) ib. 1865) ib. REPORTS OF CASES DECIDED IN ALL The Courts of Equity, Common Law, Divorce, Probate, Admiralty, and Ecclesiastical. COURT OF CHANCERY. COLLINS v. LAMPORT.-Dec. 8 and 9. 17 & 18 Viet. c. 104, ss. 70, 71—Merchant Shipping Act -Mortgage of ship-Contracts of mortgagor-Validity of. Where the mortgagor of a ship does some act which prejudices or injures the security of the mortgagee, the declaration in the statute that the mortgagor is to be deemed the owner, ceases to have any binding effect against the mortgagee, and he may exercise the powers given to him by the mortgage, subject to this qualification-every contract entered into by the mortgagor in possession is a contract which derives validity from the declaration contained in the statute of his continuing to be the owner. Such contract would, however, enure for the benefit of the mortgagee on his giving notice to the party who is to pay the mortgagor under that contract. Therefore, where, pending a mortgage, the mortgagor had contracted for the sale of the ship, and before the contract was completed the purchaser had entered into a charterparty with the plaintiffs, the mortgagees, on the bankruptcy of the mortgagor, were restrained from selling or otherwise dealing with the ship in any manner inconsistent with the terms of the charterparty. Appeal motion from a decision of Sir R. T. Kindersley, V. C. The suit was instituted by Messrs. Collins, to restrain the respondents from dealing with the ship Maria. way interfere, or permit any interference emanating from me, to prevent her leaving London for Shields, or Shields to Seville, and that should she not proceed on her voyage from Newcastle, that I will return you your acceptance for 751. "E. S. ROBERTS." The charterparty was thereupon executed by the plaintiffs, by which it was agreed that the ship should proceed to the Tyne, or Middlesborough, as the plaintiff's agent might appoint, and there load; and being so loaded, should proceed to Seville and deliver her cargo, agreeable to bills of lading; and having again loaded there, and at one or two ports in Portugal, should return to England, or to the continent between Havre and Hamburgh. Amongst other provisions was one that the master was to sign bills of lading or recharter, for more or less freight, without prejudice to the charterparty. On the execution of the charterparty the acceptance for 751. was given. In pursuance of the charterparty the ship was sent to Newcastle, and there commenced loading. Whilst this was going on, on the 1st October, 1864, Roberts, the mortgagor, stopped payment. Thereupon the defendants, the mortgagees, took possession of the ship, as mortgagees, for 8001. The bill prayed that the defendants, the mortgagees, might be restrained from dealing with the ship in any way inconsistent with the charterparty, and from selling the ship without giving to the purchaser notice of the charterparty, and that the same might be specifically performed. After the bill was filed the defendants had agreed to sell the ship to the defendant Webb. The Vice-Chancellor having refused the motion for an injunction, with costs, the plaintiffs now appealed. Glasse, Q. C., and T. H. Terrell appeared for the plaintiffs, and contended that the mortgagor had power to make contracts. The charterparty was a valid contract, and could not be disturbed or overridden by the mortgagees. (The European and Australian Royal Mail Company v. The Royal Mail Steam Packet Company, 4 Kay & J. 676; Marriott v. The Anchor Reversionary Company, 3 De G., F., & J. 177; S. C., 8 Jur., N. Š., 51). On the 10th September last, Thomas Ellis, shipbroker, sent to the plaintiff a charterparty of the ship Maria, then lying in the Thames, signed by the defendant Luccock, as master of the ship. The charterparty stipulated that the plaintiffs should give their acceptance for 751. on account of the freight, and a further acceptance for 2607. on the sailing of the vessel. The plaintiffs, surprised at the largeness of the proposed advance, addressed Ellis on the subject, who explained that Luccock was negotiating the purchase of the ship from the defendant Roberts, who was the owner, and that the required acceptances were wanted to be delivered to the owner, towards payment of the purchase money. The plaintiffs made no objection, but, in order to secure themselves, stipulated that Roberts, as owner, should confirm the transaction. This was agreed to, and Roberts, on the 12th Baily, Q. C., and Osler appeared for the mortgagees. September, addressed the following letter to the plain--Even assuming the charterparty valid, it was not tiffs:binding on the mortgagees. They had power under the statute to sell the ship, discharged of any such contract. The mortgagees are entitled to receive mortgage money free from any incumbrance. charter is an incumbrance. If a mortgagor charters a ship, he can only do so subject to the mortgagee's "Gentlemen,-In conformity with Captain Luccock's wish, I hereby undertake, that in consideration of your giving him your acceptance for 751. here, dated the 12th September, and one for 2607. when the vessel be loaded at Newcastle, that I will not in any No. 523, VOL. XI., NEW SERIES, a A right to sell. But the charterparty was invalid. Luccock was the master of the vessel, and had no right to enter into such contract. [They referred to Dean v. M Ghie (4 Bing. 45) and Dickenson v. Kirkhen (8 El. & Bl. 789).] W. F. Robinson appeared for Webb, the purchaser. -[He referred to the 17 & 18 Vict. c. 104, ss. 70, 71.] Glasse, Q. C., in reply. LORD CHANCELLOR.-I will tell you how the case strikes me at present; but I may probably deem it requisite to reserve the further consideration of the point of law which arises. The first question to be looked at is one of fact, because, unless we arrive at the conclusion that there was a valid contract as between Roberts, the mortgagor, and the plaintiffs, it will be unnecessary to consider the operation of the mortgage, or the legal status of the mortgagee. With regard to the purchaser pendente lite, I have placed him in the same boat with the mortgagee; and in speaking of the mortgagee, therefore, I include the purchaser, because the purchaser's case must of necessity be the case of the mortgagee as already made in the suit. Now, to determine the first question, whether there was a good charterparty, a good valid contract, between Roberts and the plaintiffs-that is to say, binding Roberts by the contract made by Luccock-the facts appear to be these:The ship had been mortgaged by Roberts, the original owner, to Messrs. Lamport & Holt. Roberts was desirous of selling the vessel; he intended to send her round to Newcastle or into the river Tyne for that purpose. Whilst he was minded so to do, Ellis, a broker, comes to him, and tells him that he knows of a person who would be willing to purchase the ship, and give him 1000l. That person was Luccock. Luccock is brought into communication with Roberts, and terms of sale, subsequently reduced into writing, were agreed upon between them. It appears from that instrument that Luccock, before he proposed finally to bind himself by the contract, had actually treated with the plaintiffs for chartering the ship to them; and this renders that circumstance apparent, that in the contract between Luccock and Roberts for the purchase of the ship, which was made on the 12th September, being the day of the date of the charterparty," the deposit to be paid by Luccock to Roberts is the sum of 757., which is there mentioned as the sum that Luccock was to receive from the plaintiffs, who had agreed to become the charterers of the vessel. What, therefore, is abundantly clear is this-that the intended position of the plaintiffs as charterers of the vessel, through the medium of a contract with Luccock, was perfectly well known to Roberts at the time when he entered into that agreement for the sale of the vessel to Luccock. Now, the agreement itself would, in point of fact, give confirmation to the contract that Luccock had made, for it would have been impossible for Roberts, receiving through Luccock the money to be paid on the charterparty by the plaintiffs, Sect. 70 enacts as follows:-"A mortgagee shall not by reason of his mortgage be deemed to be the owner of a ship, or any share therein, nor shall the mortgagor be deemed to have ceased to be the owner of such mortgaged ship or share, except in so far as may be necessary for making such ship or share available as a security for the mortgage debt." And sect. 71 enacts-" Every registered mortgagee shall have power absolutely to dispose of the ship or share in respect of which he is registered, and to give effectual receipts for the purchase money; but if there are more persons than one registered as mortgagees of the said ship or share, no subsequent mortgagee shall, except under the order of some Court capable of taking cognisance of such matters, sell such ship or share without the concurrence of every prior mortgagee," to have afterwards turned round and repudiated that charterparty. But it is plain, from the facts of the case, that Roberts knew perfectly well that Luccock depended upon the charterparty for the means of completing his purchase, or partly for the means of completing his purchase. This also appears, that the charterers, namely, the plaintiffs, observing the singularity of the term, that they were to pay down at once 757., and being aware, as appears from the internal evidence of the facts, of the position in which Luccock stood relatively to Roberts, were not content with dealing with Luccock alone; and it is clear that they required the adhesion in a direct form of Roberts to the treaty which they had made with Luccock. It is plain, therefore, that Roberts placed Luccock, by what he did and agreed to, in a position of concluding a valid charterparty by his authority, no matter what might become of the contract to purchase between him and Luccock; and even, therefore, if that contract should fall to the ground (an event which was not anticipated, but which was supposed to be possible), the dealing of Luccock with the plaintiffs, to which Roberts adhered, and which Roberts partially received the fruit and benefit of, would be a dealing binding Roberts, no matter whether Luccock did or did not ultimately acquire the status of becoming owner of the vessel, the subject of the charterparty. Now, this appears-I throw aside the affidavits, the swearing by the one party that he did not know this, and the swearing by the other party that he did know it, because I derive the conclusions of the knowledge of the parties, and the dealings of the parties-from that about which there can be no mistake, the evidentia rei from the internal evidence afforded by the facts themselves. 75., therefore, is paid over to Roberts, as being the first instalment of the freight money payable under the charterparty, and then the charterers, anticipating the possibility of Luccock's title failing, require from Roberts this engagement. The engagement is (it being contained in a letter by Roberts to the plaintiffs, the charterers), "In conformity with Captain Luccock's wish, I hereby undertake that, in consideration of your giving me your acceptance for 751."-here dated the 12th Septemberand one for 2607. when the vessel be loaded at Newcastle"-terms taken out of the charterparty-" that I will not in any way interfere, or permit any interference emanating from me, to prevent her leaving London for Shields, or Shields to Seville." Now, what is the meaning of those words? Why, that Roberts distinctly says, "for these considerations I will permit the vessel to be navigated and dealt with in conformity with the terms of the charterparty"-for these things, which are extracted and expressed in the letter, are the very terms contained in the charterparty. The letter must be read, therefore, as if Roberts had written, "Your engagement with Luccock is an engagement with a man who is not yet complete owner of the vessel, and who, therefore, has no legal capacity to enter into the contract with you; but inasmuch as I am to receive the first fruits of the contract, in the shape of the 757. and of the 2607., I will not interfere with your right to have the benefit of the contract, and the performance of the contract; and if anything happens to annul this engagement between Luccock and you, so that the ship shall not proceed on her Well, but when the facts are known, nothing can be voyage from Newcastle, then I return you the 751." the parties. I care not whether Roberts gave antemore demonstrative of what was the real position of cedent authority to Luccock, or whether it be, that Luccock having negotiated these terms, Roberts afterwards accepted and ratified them, and interposed his authority and right as still remaining owner of the |