HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0044 and id is 1 raw text is: RITCHIE 'V. ATKINSON
shewed cause, and relied upon Cockerhill v. Kynaston (b)', where the executor declared
in one count on a trover and conversion in his testator's lifetime, and in another count
on a trover conversion after his death ; and the evidence offered, being only applicable
to the first count, he was held not liable to pay the costs of a nonsuit. And Buller J.
there took a distinction, that if the goods never were in the actual possession of the
executrix, it was absolutely necessary for her to declare in that character. And here
no evidence having been given, it did not appear that the goods ever were possessed
by the plaintiffs.
Lord Ellenborough C.J. That opinion was over-ruled in Bollard v. Spencer (a). The
action is founded upon the plaintiff's property and it is immaterial whether they were
in fact possessed of it or not, before the conversion by the defendant. And this latter
case was recognized by Lord Eldon in Tattersall v. Groote (b)2 where, though an adminis-
tratrix suing on a covenant (c) with her testator, was held not liable to costs ; yet all
the decisions in trover the other way were left untouched by that judgment. It was
once endeavoured by Mr. Justice Buller to make it the test of an executor's exemption
from costs, whether the money, when recovered in the action would be assets: but
that is certainly not [295] the rule now. The question is, whether it were necessary
for the plaintiffs to have declared as administrators? and here it certainly was not
necessary ; for'on the death of their testator they were in point of law the owners of
goods which belonged to the intestate ; and whether actually possessed by them or
not before the conversion, they might declare as any other. person upon their own
property when wrongfully converted by another.
Bayley J. referred to March v. Yellowby, 2 Stra. 1107, assigning the reason why
executors shall be liable to costs in these cases, which arises upon the words of the
stat. 23 H. 8, c. 15.
Per Curiam. Rule absolute.
RITCHIE against ATKINSON. Tuesday, Nov. 15th, 1808. Where the master and the
freighter of a vessel of 400 tons manually agreed in writing that the ship, being
every way fitted for the voyage, should with all convenient speed proceed to St.
Petersburgh, and there load from the freighter's factors a complete cargo of hemp
and iron, and proceed therewith to London, and deliver the same on being paid
freight for hemp 51. per ton, for iron 5s. a ton, &c. one half to be paid on right
delivery, the other at 3 months, held that the delivery of a complete cargo
was not a condition precedent; but that the master might recover freight for
a short cargo at the stipulated rates per ton ; the freighter having his remedy
in damages for such short delivery.
[See M'Andrew v. Chapple, 1866, L. R. 1 Q. P. 648. The Teutonia, 1871-72,
L. R. 3 A. & E. 412; 4P. C. 171.]
This was an action of indebitatus assumpsit for the freight of goods conveyed in
the ship Adelphi, of which the plaintiff was master, from St. Petersburgh to
London, and delivered to the defendant or his order. There was also a count on a
quantum meruit for freight, and the common counts for work and labour, and for
money paid, &c. The defendant pleaded the general issue; and at the trial at
Guildhall before Lord Ellenborough C.J. a verdict was found for the plaintiff for
9601. 15s. subject to the opinion of this Court on the following case.
' [296] The plaintiff being master of the ship Adelphi, in August 1807 chartered
her to the defendant by the following instrument: Memorandum for charter.
London 12th August 1807. It is this day mutually agreed between Captain J.
Ritchie, of the ship 'Adelphi,' burden 400 tons or thereabouts, now in the river,
and W. Atkinson, of London, merchant, that the said ship, being tight, and every
way fitted for the voyage, shall with all convenient speed sail and proceed to St.
Petersburgh, or so near thereunto as she may safely get, and there load from the
factors of Win. Atkinson, a complete cargo of clean hemp, and 80 tons of iron for
ballast, not exceeding what she can reasonably stow, &c. ; and being so loaded shall
therewith proceed to Woolwich and London, and deliver the same, on being paid
(b)' Trim. Rep. 277. (a) 7 Term Rep. 358. (b)2 2 Bos. and Pull. 256.
(c) The same answer was given to Cook v. Lucas, 2 East, 395, which was also cited.
10 EAST. 295.](ViewImageLocal?handle=hein.slavery/ssactsengr0044&div=1&collection=&method=preview&ext=.png&size=3)