TABLE of ERRATA in Vol. IV. Page 17. line 1. for" fhewed caufe," read" in support of the rule." 33. 46. 6. for Ancher, read Archer. 6. read (a) reference to the following note: (a) But fee Holtpzaffel v. Baker, 18 Vef. 116., where the Plaintiff in equity did offer to furrender his term, praying relief from this action, but Lord Eldon, Chancellor, held he was entitled to no relief, although the agreement contained an engagement by the tenant to repair the premises and keep them in repair," reasonable use and wear, and damage by fire excepted." P. 48. marginal note, line 3. before " Plaintiff," read "as." 49. line 19. after "which," read " is.”. 122. 1. 13. for in this term, read "On the 27th day of Sept. 1810." 125. head line, for the 51st year, read the 52d year. 155, 156. for Suncox, Demandant, read Simcox, Demandant. 459. line 1. for "Lee," read" Leo." 587. marginal note, line 7. for G. 3. read G. 1. 618. line 11. for "". -, Demandant, Bell, Tenant." Tenant," read" Wardale, Demandant, 642. marginal note, laft line, before aflignee, read" unaccepted." 643. line 21. for "Plaintiff," read "Defendant, who cited Spencer's cafe, 5 Co. 18. 6th ref. and Vin. Covenant, p. 393. pl. 9.” fame line, for " Defendant," read "Plaintiff." 644. line 1. for -,'Deforciant," read "Milles and Wife, and Others, Deforciants." 864. line 4. for "need," read " needs." 901. after " Attorney," read "and fee Negligence. Costs, IV. 1." 905. Bills of Exchange and Promiflory Notes, after "See Bankrupt, I. 1." read " See Bankrupt, III. 5." 908. Convoy, 5. for Cowle read Cowie. 916. first column, Executor and Administrator, after " Practice, VII." read " 8." TABLE of ERRATA in Vol. III. P. 283. lines 31, 32. "Walker v. Chapman v. Walter." dele v. Walter. Directions to the Binder. Cancel pages 465-468 of Vol. IV., and infert the separate pages 465-468 fewed up with Part 5. CASES ARGUED AND DETERMINED IN THE COURTS OF COMMON PLEAS, AND EXCHEQUER-CHAMBER, IN Trinity Term, In the Fifty-first Year of the Reign of GEORGE III. AND IN Michaelmas Term, In the Fifty-second Year of the Reign of GEORGE III. BROUNCKER v. SCOTT. THIS was an action of assumpsit, brought by the plaintiff to recover from the defendant a compensation in damages for the detention of a certain ship of the plaintiff beyond a reasonable time for the unloading of her cargo, after her arrival in the port of London. There were other counts for freight, primage, and demurrage due to the plaintiff as master of the said ship. The defendant, upon the counts for freight and primage, paid money into court; and at the trial before Mansfield, C. J., at the London sittings after last Hilary term, the only question was, whether the plaintiff, who was not owner, but only master of the ship, was entitled to sue for demurrage. Upon this part of the case a verdict was found for the plaintiff, with liberty to the defendant to move to enter a nonsuit, if the Court should be of opinion that the plaintiff was not entitled to maintain the action. VOL. IV. Accordingly, B June 18. The master of a maintain as sumpsit in his ship cannot own name upon an implied pro- [2] Accordingly, Lens, Serjt., in Easter term, having obtained a rule nisi for that purpose: Shepherd and Best, Serjts. now shewed cause, and contended that the captain might maintain this action for demurrage. They said that demurrage was a claim arising in respect of the hire of the ship, for such time as elapsed after the expiration of the period stipulated for the completion of the voyage; and although not actually freight, it was in the nature of freight, being a reasonable recompence for the use of the ship. But by the usage of the maritime law, the captain is so far considered as a principal, that he may sue for the freight; because it is reasonable that he should receive his remuneration at the port to which the ship is destined; and therefore he may resort in the first instance to the consignees of the goods for the payment of the freight, out of which his remuneration is to arise; otherwise he might be delayed in obtaining it, if upon their refusal to pay he was compelled to seek it through the medium of his principals. The same reasoning is applicable to a claim for demurrage; and therefore the same right may be expected to follow. [Mansfield, C. J. I have inquired, and find that there is not any instance of an action of this description. There are very few indeed where actions have been brought by the master for freight, and they have been supported upon the ground of an implied assumpsit, arising out of the bill of lading, by the terms of which the captain is to deliver the goods to the consignecs, he or they paying freight for the same. But even this is quite a modern action.] Demurrage, as well as freight, is due before the delivery of the goods, and for non-payment of it the captain may withhold their delivery; and therefore if he does deliver them, an assumpsit may be implied, as well in the one case, as in the other. It is of great importance to merchants, who are carriers from port to port, and whose ships are absent for a great length of time, that the captain should be permitted to sue for demurrage, without the necessity of their interference. Lens and Vaughan, Serjts. contrà. It is a new principle that the captain has a lien on the goods for the payment of demurrage, and would involve this difficulty, that as the amount of the demurrage would be continually increasing by the detention of the goods, the delivery of them would never be demanded. It would also be new in maritime and commercial law, to hold, that the agent may sue in his own name in all cases where his principal would be entitled; yet that is the only ground on which this action can be sustained; for the captain can derive no benefit from the working of the ship, but only the owner, and so little is he interested in it, that it might reasonably be doubted, even if a promise were made to him to pay the demurrage, whether it would not be a nudum pactum. MANSFIELD, C. J. This is certainly an action primæ impressionis, and is an experiment, which, it is not suggested, has been attempted before. It is a claim made by the captain of a ship upon a subject-matter in which he has no interest; and it is true, that even if he had been the contracting party, that contract would have been deemed to have been made by him for the benefit and on the behalf of his principal. Such being the case, I cannot see that necessity requires this action to be supported; and if not, its very novelty is a sufficient objection to it. How long ago it is, since an action brought by a captain of a ship for freight was first entertained, I do not know; but it is observable with reference to that species of action, that the bill of lading usually specifies “ that the captain is to deliver the goods on payment of the freight," and if he delivers them without such payment, he becomes liable to his owner for so doing; it has been held, therefore, that he may maintain an action against the consignee upon an implied promise to pay the freight, in consideration of his letting the goods out of his hands before payment. But this form of action for demurrage without a special contract to that effect is not of long standing, even in the case where the owners of ships are the plaintiffs; and as it generates a question whether the time elapsed was a reasonable time, and also what is a reasonable compensation for the use of the ship, it would be much better if it had not been encouraged, and if the owner had always made it a subject of special contract; but however that action may be supportable, I think it clear this cannot. Per Curiam, Rule absolute for a nonsuit. 1811. BROUNCKER V. SCOTT. [4] FEISE and Another . BELL. June 18. Under a licence At to a British merchant by name last on behalf of himself and THIS HIS was an action on a policy of insurance on goods at and from London to St. Petersburgh, on board the Zeelust. the trial before Mansfield, C. J. at the London sittings after others, to export to P. and to import a cargo thence, an alien enemy may lawfully be interested in the export cargo as well as in the import cargo. B 2 Hilary |