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possession of the ship. Thus, in Mitchell v. Scaife (4 Campb. 298), Birley v. Gladstone (3 M. & Sel. 205), Yates v. Railston (8 Taunt. 293, 2 B. Moore, 294), and Christie v. Levis (2 Brod. & B. 410, 5 B. Moore, 211) there were terms that shewed that the payment of the hire was to be either precedent to, or concomitant with, the delivery of the goods; whereas, in Small v. Moates (9 Bingh. 574, 2 M. & Scott, 674), the lien of the owner was expressly reserved by the charter-party. In each case the whole contract must be taken together, and due effect given to the several clauses that counteract or qualify each other; and thus it often happens that the same expression will bear different meanings, and require a different interpretation, according to the context of the instrument in which they are found. In construing this charter-party, therefore, we have not relied implicitly upon the interpretation put by judges in other cases on any particular expression also found in this contract; but we have collected the intention of the contracting parties from the whole scope of the instrument, having reference nevertheless to the several authorities cited at the bar, as guides to our decision ; and we are satisfied that, in this particular case, according to the terms of this particular charter-party, the possession of the vessel was given up by the owners to the charterer during the continuance of the contract; that the master was in possession of the cargo as agent for the charterer, and not as the servant of the owners; that personal credit was given to the charterer for the payment of the hire of the Vessel ; and that no lien, or right of stoppage of the goods, was intended to [542] be reserved to the owners as a security for the payment of the contract price. And we come to this conclusion because we find words of demise large enough to transfer the possession, if such words were necessary. We find also the owners giving to the charterer the power of appointing his own master, and requiring him to be responsible for the conduct of the master so appointed, as he would be for the conduct of his own servant; and we find that, in fact, the master was so appointed by the charterer. We find, further, that the freight for the goods was to be paid according to the bills of lading to the master thus appointed by the charterer, for the charterer's use, without any stipulation for its application towards the payment of the agreed price for the hire of the vessel. And we further find that, according to the terms of the contract, the parties contemplated that every part of the cargo would be delivered before the balance reserved would become payable; and on the other hand, we find nothing in the contract that indicates any intention to make the delivery of the cargo to depend npon the precedent or concomitant payment of any portion of the stipulated price.

We are therefore of opinion that neither the declaration alone, nor the declaration and sixth plea taken together, disclose any facts that would give the defendants the lien which they claim; and the plaintiffs therefore will have judgment on the demurrer to the sixth plea. On this ground it becomes unnecessary for us to say any thing upon the minor point-of the exclusion of the plaintiffs from the whole of the vessel, or upon any of the special grounds of demurrer.

The seventh plea is pleaded in effect to so much of the declaration as relates to the alleged breach in not suffering and permitting the delivery of the cargo, and in detaining the same on board the ship, and taking and detaining possession of the whole of the ship with the [5437 cargo on board, and excluding the plaintiffs therefrom, and in justification in substance alleges, that although the cargo and goods were, by the bills of lading, made deliverable to A. B. Belcher or his assigns, he or they paying customary freight for the same, and although the freight amounted to a large sum, and although there was then due to the defendants, as owners of the ship, for the use of the said ship for freight and carriage, a large sum according to the terms of the charter-party, and although a further sum of money was payable to the defendants, as owners of the said ship, on her final discharge for the use of the said ship, and for freight and carriage and conveyance of the said cargo and goods, yet the said A. B. Belcher refused to pay the said sums of money, or any other sum, for freight for the said goods; whereupon the defendants refused to suffer the delivery of the said goods to A. B. Belcher or to the plaintiffs, and detained the same on board the said ship, and refused to suffer the plaintiffs to remove or unload the said cargo, and kept and detained the possession of their said ship, so having on board the said cargo; as they lawfully might, for the cause aforesaid.

To this plea the plaintiffs replied, that the freight so payable, according to the terms of the bill of lading by the said A. B. Belcher or his assigns, was payable to James M.Cormick as the master and agent of the plaintiffs as assignees of Stockdale, the freight being by the terms of the charter-party payable to the affreighter of the said vessel, and the said freight not being payable to the defendants or to James M‘Cormick as their agent in that behalf ; that on the arrival of the ship the plaintiffs as assignees discharged the said A. B. Belcher from paying to MCormick, and MCormick from receiving the freight, and required M‘Cormick to deliver the cargo without payment of such freight; and that the said James [544) M‘Cormick was then ready and willing to deliver, and but for the hindrance of the defendants, and their so seizing and taking and keeping possession of the ship and cargo, would have delivered, the cargo to the said A. B. Belcher, without the payment of the freight.

To this replication the defendants rejoin, that James M.Cormick was put in by Robert Stockdale the charterer of the vessel of his own appointment, under and in pursuance of the privilege reserved by the charter-party, as the defendants' master of the said ship, and as their agent and servant in respect of the said ship; and that the said James M‘Cormick became and was the agent of the plaintiffs as such assignees, in such manner, and to such extent as by the charter-party is alleged and not otherwise, and that the said James M'Cormick had no other possession, or control, or disposal of the said cargo than in the character of master of the defendants' vessel, so appointed as aforesaid ; and the defendants further say, that although the freight was eventually payable to the affreighter, yet James M.Cormick as the defendants' master of the ship, and as their agent with the knowledge and consent of the plaintiffs signed the bills of lading mentioned in the seventh plea, and thereby, on behalf of the defendants, undertook and promised that the goods and merchandise in that plea mentioned should be delivered to the said A. B. Belcher or his assigns, he or they paying freight for the same as customary, to the defendants, and that at the time of the signing of the bills of lading, and thence hitherto a large sum was due and owing from Robert Stockdale to the defendants according to the terms of the charter-party; and that after the signing of the bills of lading according to the provisions of the charter-party, other large sums of money became due to the defendants in respect of the freight, before and on the arrival of the ship; and that the plaintiffs had notice that the two sums men-[545]-tioned in the seventh plea, were, according to the terms of the charterparty, due and payable to the defendants, and were then unpaid, and were requested to pay the same; and that the plaintiffs and also A. B. Belcher were requested by the defendants to pay to them the freight as customary, according to the terms of the bills of lading, and that the defendants did not consent that the assignees should discharge A. B. Belcher from paying the freight; without this, that the said last-mentioned freight was not payable to the defendants.

To this rejoinder the plaintiffs have demurred, assigning several special grounds of demurrer. But as it is obvious from the pleadings, that the main question raised upon this demurrer has already been disposed of by our judgment on the demurrer to the sixth plea, and as we have already held that the master must be considered as having signed the bills of lading as agent for the charterer, and to be entitled as such agent, and not as the servant to the owners, to demand the freight upon those bills from consignees, and that the defendants had no lien upon the goods for the stipulated price for the hire of the ship, it will be unnecessary to say any thing more upon this part of the case, than that the judgment upon this demurrer must also be entered for the plaintiffs.

Î'he eighth and last plea is pleaded to so much of the declaration as relates to the alleged breach in refusing to deliver, or to suffer and permit the master to deliver, the cargo to A. B. Belcher or to the plaintiffs, and in retaining the cargo on board the ship and refusing to suffer the plaintiffs to remove or unload the said cargo. The defendants by this plea allege that before the bankruptcy of R. Stockdale, a large sum of money became due from him to the defendants according to the terms of the charter-party, to recover which the defendants commenced an action against R. Stockdale, and that before his bankruptcy it was agreed between R. Stock-[546] dale and the defendants, that the defendants should withdraw their action, and all proceedings at law against R. Stockdale, and that he should deliver to W. G. Colchester the bills of lading for the then homeward cargo, and should empower W. G. Colchester to receive the amount of the proceeds thereof, for the purpose of paying in the first place to the defendants any freight that might be due to them on the charter-party, and the balance to the account of R. Stockdale with W. G. Colchester; that in pursuance of the agreement the defendants withdrew their action and all proceedings at law against R. Stockdale, and that he empowered to W. G. Colchester accordingly; that after the arrival of the vessel a large sum of money was due to the defendants on the charterparty for the freight: whereupon the defendants, owners of the ship as well in their own right, and also as agents of W. G. Colchester, and with his consent, went on board of the ship and took possession of the homeward cargo for the purposes last aforesaid, and in such right and as such agents, and in pursuance of such agreement and authority, refused to deliver, or to suffer or permit the master to deliver, the cargo to A. B. Belcher or to the plaintiffs, and detained the same on board the ship, and refused to suffer the plaintiffs to remove or unload the same; as they lawfully might, &c.

To this plea the plaintiffs replied, that at the time of the making of the agreement therein mentioned, no part of the cargo was on board the vessel, nor any of the bills of lading in existence, nor had they at any time come into the possession of W. G. Colchester or of the defendants, or of R. Stockdale ; and that the authority to receive the amount of the proceeds of the cargo was given by R. Stockdale to W. G. Colchester before the shipping of the cargo, or the existence of the bills of lading; and that also before the shipping of the cargo, or the existence of the bills of lading, and before W. G. Colchester (547] had any control over the cargo, and while R. Stockdale was the apparent and reputed owner thereof, and whilst the defendants' action against him was still pending, R. Stockdale became bankrupt, and the plaintiffs were appointed his assignees, whereby the authority given to W. G. Colchester by R. Stockdale, and the agreement made with the defendants became revoked of which the defendants had notice before any exercise of the authority given to W. G. Colchester. The plaintiffs in their replication further allege that the cargo was from the time of the shipping thereof till the seizure thereof by the defendants in the possession and control of the plaintiffs as assignees, and of James M.Cormick as their agent, and that the plaintiffs had not in any way confirmed or assented to the agreement in the last plea mentioned, or to the power or authority given by R. Stockdale to W. G. Colchester, but had altogether rejected the same.

To this replication the defendants have rejoined, that before R. Stockdale's bankruptcy, and before any revocation by him of the agreement, or of the authority given by him, certain goods had been provided and shipped at Sierra Leone by R. Stockdale's agents, as part of the ship's homeward cargo, and on his account; and that these goods were afterwards carried in the ship to the river Gambia, where for the purpose of more conveniently loading the whole of the homeward cargo, they were landed before R. Stockdale's bankruptcy, and there remained ready for shipment. The defendants further allege, that other goods provided by R. Stockdale's agents at the river Gambia were also before his bankruptcy ready for shipment on his account as a further portion of the homeward cargo; and that afterwards both sets of goods were shipped on board the vessel as the homeward cargo thereof; and thereupon the defendants, for the purposes, and by the authority in the last plea men-15487-tioned, went on board and took possession of the homeward cargo of the ship, and refused to deliver or to permit and suffer the master to deliver the cargo to A. B. Belcher, or to the plaintiffs, and detained the same on board the ship, and refused to suffer the plaintiffs to remove or upload the same, as they lawfully might, &c.

To this rejoinder the plaintiffs have demurred specially ; but, in the view we take of the case, it becomes unnecessary to consider the special causes of demurrer assigned.

In considering the questions raised upon these pleadings, it must be remembered that the plaintiffs, as assignees, take the property of Stockdale, subject to all the incumbrances, equitable as well as legal, to which it would have been subject in the hands of Stockdale himself if he had continued solvent, except in those cases specially provided for by the bankrupt act. Two questions, therefore, will arise upon this derurter: first, whether any lien, legal or equitable, vested in Colchester before the bankruptcy of Stockdale ; and, secondly, whether such lien, if it existed, has been affected by the bankruptcy of Stockdale. It was not contended at the bar that there had been any legal assignment of the goods to Colchester, but it was argued that the agreement stated in the eighth plea amounted to an equitable assignment to him, and that he had an equitable lien on the goods, to the extent of the freight due to the defendant on the charterparty; and the cases of Brown v. Heathcote (1 Atk. 160), Lampriere v. Pasley (2 T. R. 485), Burn v. Carvalho (1 Ad. & E. 883, 4 N. & M. 889), and Hutchinson v. Heyworth (9 Ad. & E. 375, 1 P. & D. 266), were cited as authorities

C. P. XII.—8

for this point. According to these authorities, there can be no doubt that, if the goods had been on board the vessel, and the bills of lading (549) had been handed over to Colchester before the bankruptcy, though not indorsed to him till afterwards, he would have acquired a good equitable lien, not only as against Stockdale, but as against the assignees. And, according to the opinion of Lord Hardwicke in Brown v. Heathcote, he would have acquired such lien as against Stockdale by virtue of the agreement alone, without the delivery of any bill of lading. The cases of Lempriere v. Pasley, and Falkener v. Case, as cited by Mr. Justice Ashhurst in the former case, were decided against the assignees, on the ground that the bankrupt had done all that was in his power to complete the equitable assignment, and to deprive himself of the power of disposing of the property assigned. The case of Burn v. Carvalho was decided in favour of the assignees, because the equitable assignment was not complete before the bankruptcy. In the case of Hutchinson v. Heyworth, the bankrupt had sent out directions to his agent abroad before his bankruptcy, to pay a portion of the proceeds of certain shipments to certain creditors there; and the money having been paid after the bankruptcy, and after notice from the assignees, the question was, whether the bankrupt's directions had been revoked by his bankruptcy; and the court held, that as the agent had, before the bankruptcy of his principal, pledged himself to the creditor upon his guaranteeing him against the claims of other creditors, to pay over the money according to the principal's orders, there was either an appropriation of the funds to that extent, or an equitable assignment, before the bankruptcy, and that in neither case was there any revocation by the bankruptcy of the owner.

On the part of the plaintiffs it was contended, that neither of these cases was in point; that there was in this case no actual assignment of the goods, but only a contract to assign at some future time; that Colchester (550] never had possession either of the goods, or of any symbol representing the goods; and that the contract had been revoked by the bankruptcy of Stockdale before any cargo had been finally shipped on board the vessel ; and, therefore, before the contract had attached to any definite goods, and while it was uncertain of what goods the cargo would be eventually composed.

As to the first portion of the cargo, which had been brought on board the vessel from Sierra Leone to the river Gambia, and there unloaded for the temporary purpose of more conveniently loading the whole of the homeward cargo, we think that those goods are sufficiently alleged to have been in the possession of the charterers, at the date of the agreement, as part of the intended homeward cargo mentioned in the agreement, to bring them within the terms of that agreement, as equitably assigned to Colchester for the purposes mentioned in that agreement; and if the other part of the cargo had been with equal clearness described to have been in the possession of the charterers' agents, and to have been set apart, as well as destined, as part of the homeward cargo before and at the time of the agreement, we should have been inclined to hold that the agreement operated as an assignment in equity of those specific goods, and that those goods were sufficiently identified with the goods that form the subject of the present action. But there is so much obscurity in the language of the rejoinder as to that portion of the cargo that was provided at the river Gambia, that we find it impossible to say, with any degree of certainty, that the goods which were afterwards put on board on the vessel and brought to England, were at any time before the bankruptcy set apart and definitely appropriated as part of the homeward cargo, so as to form the subject of any complete assignment before the bankruptcy of Stockdale.

But this becomes of less importance, because we are [551] of opinion, that if enough had been shewn to make out a valid equitable assignment as against Stockdale himself if he had remained solvent, still the property in all the goods passed to the plaintiffs, as goods in the order and disposition of the bankrupt at the time of his bankruptcy, under the seventy-second section of the statute 6 G. 4, c. 16; and that, therefore, as against the assignees, Colchester could not set up any lien under the agreement stated in the plea. Before this agreement the bankrupt was the real owner of the goods, and according to the most favourable view of the statement in the rejoinder, was, through his agents, in actual possession of them. By the replication it is alleged, and not denied by the rejoinder, that neither Colchester nor the defendants ever had possession of the goods forming the intended cargo, but that Stockdale continued the apparent and reputed owner. By the assignment to Colchester, he became in equity the owner of the goods ; and, according to the case of Ryall v. Rolle (1 Atk. 165), and many subsequent cases, an equitable assignee is to be considered as the true owner of the goods assigned, within the meaning of the provisions in the bankrupt laws respecting reputed ownership. If, therefore, the goods forming the intended cargo were in the possession, order, and disposition of Stockdale at the time of his bankruptcy, with the consent of Colchester the true owner, the property in those goods would pass to the assignees. And as by the pleadings it is admitted, that the bankrupt was left in the sole possession and management of the cargo, with full power to dispose of, or gain credit upon, any part of it, having parted with no document that was essential to his power of disposal, we see no ground upon which we can hold these goods to be exempted from the operation of the seventy-second section of the bankrupt act (6 G. 4, c. 16).

(552] The judgment must therefore be entered for the plaintiffs upon this demurrer, as well as upon the former demurrers before considered.

Judgment for the plaintiffs.

THAMES HAVEN DOCK AND RAILWAY COMPANY v. ROSE. May 31, 1842. (S. C. 5 Scott, N. R. 524. 3 Railw. Cas. 177 ; 2 D. N. S. 104 ; 12 L. J. C. P. 90.

Referred to, New Sombrero Phosphate Company v. Erlanger, 1877-78, 5 Ch. D. 100; 3 App. Cas. 1218. Considered, In re Alma Spinning Company, 1880, 16 Ch. D. 681;

York Tramways Company v. Willows, 1882, 8 Q. B. D. 697.] By a private act, the business of a company thereby incorporated was to be carried on

by twelve directors; five of whom were to be a quorum. There were provisions in the act as to the election of new directors in case of death, &c. The directors were authorised to make calls, and in case of non-payment, the company had power to sue.- An action having been brought for calls, the defendant in March suffered judgment by default. In Trinity term following he applied to set aside the judgment, upon the ground that at the time the calls were made, there were only seven directors; and that he had only lately learnt that fact.—The court refused the application, holding that the enactment as to the number of directors was only directory.—Also, semble, that the application was made too late.

Bompas Serjt., on behalf of the defendant, moved for a rule calling upon the plaintiffs to shew cause why the judgment, which had been signed in this cause, and all subsequent proceedings, should not be set aside for irregularity.

The company was incorporated by a private act, 6 & 7 W. 4, c. cviii., by the name and style of The Thames-Haven Dock and Railway Company (a). The [553]

(a) The following sections of this act were referred to in the argument:

Section 108 enacts, that the business and concerns of the company shall be carried on under the management of twelve directors, to be chosen from time to time from amongst the proprietors for the time being of the company, qualified by holding ten sbares or upwards each ; and that such directors shall have the general management, direction, superintendence, and control of the business and concerns of the company, and the custody of the common seal of the company, with power to use the same on their behalf, and also the custody of the books of account, and other books, deeds, and papers, and shall have power to direct the investment, calling in and laying out, sale and disposal of the stock, effects, funds, moneys, and securities of the company, and all other the dealings of the company, and to call and appoint the times and places of holding general and other meetings of the proprietors, and to superintend, direct, and control the correspondence and mode of keeping the accounts, and the ascertainment of dividends, and the profits on shares, and to do all other things necessary, or to be deemed by them proper or expedient, for carrying on the business and concerns of the company, and to enforce, perform, and execute, all the powers, authorities, privileges, acts, and things in relation to the company, and to bind the company, as if the same were done by the whole corporation, except such as are hereby required to be done at some general or special meeting of the company; and the directors for the time being shall have power to frame rules and regulations, and prescribe the orders and directions for carrying on the business and concerns of the

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