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N. is usually performed in twenty-one days, but the ship was Luke

taken on the seventeenth. On her return, the merchant (with- "•

out (o) the concurrence of the master), took away the remainder .

of his goods after salvage paid; and the question was, whether any, and what freight was due for this imperfect voyage?

Per Mansfield, C. J., et Cur.—The established rules in such cases are the following:

*1. If a ship is disabled from pursuing her voyage (/>) by any [ * 191 ] fortuitous calamity, the master has his option to refit the ship within a reasonable time, or hire another. If the merchant refuses to let him hire another, the merchant must pay him the whole freight (q).

2. ?Tis nothing to the master, whether the goods saved are damaged or otherwise (*•); for an average freight is due upon the whole: and the merchant cannot pick and choose, but must take to the whole, if he takes to any. But the merchant may abandon the whole, though not part, in case he thinks them not worth the freight; for,

3. In case of calamity, the merchant is only to pay freight for the goods saved (*).

In the present case, some freight is certainly due, but not the whole freight; for the master acquiesced in the merchant's conduct, who took away his goods; and he did not offer to hire another ship, which he might have done. He has therefore made his election, not to furnish the merchant with another conveyance; and can only be paid rateably, for so much of the voyage as was performed. Again, only half of the goods were saved, the other half being due to the recaptors; therefore the rateable freight is only due for a moiety. The law in these cases is laid down agreeably to these rules in the Khodian Law; Consolato del Mare; The Laws of Oleron, sect. 4; Usages and Customs of the Sea (in French); Rockii Notabilia de Navibus, Num°81, edit. 1655; Ordonnances, Louis XIV. A. I). 1(581, par M. Colbert, art. 18, 19 (tit. 3), 21, 22; and many more authorities than I (Lord M.) choose to mention. What profit the merchant may make of the goods is totally immaterial to the freight; for that becomes due before the goods are sold. •Therefore let there be judgment for the plaintiff, with da- [ *192 I

(o) Quare, if this passage should Dot saved, and the owner takes it to his own

be " with the concurrence of the master." use. Where the value of the goods was

(p) But if the 6hip be captured before restored in money, which is the same as

breaking ground, no freight is recoverable; the goods, freight is certainly due pro ratii

for the inception of freight is breaking itineris:" per Lord Mansfield in Baillie v.

ground; Curling v. Long, 1 Bos. & Pul. Moudigliani, Park's Ins. 90 (cd. 1817).

636; see Birley v. Gladstone, 3 M. & S. In that case, the further conveyance of tin

505. goods was prevented by the act of a Court

(a) Lutu'ulge v. Gray, Abbot on Ship- having competent jurisdiction; but where

ping, 316 (4th ed.). it is prevented by an act of the ship

(r) Shields v. Davis, 6 Taunt. 65: see owners themselves, to which the owner of

also Ward v. Felton, 1 East, 507. the goods neither actually nor virtually

(i) "As between the owners of the consents, the former is not entitled to

ship and cargo, in case of a total loss, no freight pro raid; Hunter v. Prtnsep,

freight is due; but as between them no 10 East, 378, which see, and cases there ^^^

loss is total, where part of the property is citea.


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mages equivalent to the freight of one moiety of the goods, for part only of the voyage, viz. in the proportion of seventeen totwenty-one (t).

(<) In covenant on a charter-party, where the freighter covenanted to pay freight for goods delivered at A., freight cannot be recovered pro raid itincris, if the ship be wrecked at B., though the freighter accept his goods there. Per Lawrence, J.; "When a ship is driven on shore, it is the doty of the master either to repair his ship, or to procure another; and having performed the voyage, he is then entitled to his freight: but he is not entitled to the whole freight unless he perform the whole voyage, except in cases where the owner of the goods prevents him j nor is he entitled pro rata, unless under a new agreement Perhaps, the subsequent receipt of these goods might have been evidence of a new contract between the parties: but here the plaintiff has resorted to the original agreement, under which the defendant only engaged to pay in the event of the ship's arrival at A.;" Cook v. Jennings, 7 T. H. 381; Liddard v. Lopes, 10 East, 526, S. P.; there Lori Ellenborough said, "The acceptance of the goods was the very substance of the new implied contract in Luke v. Lyde," So, where the plaintiff

contracted to carry the defendant, Sic. from D. to F., but the ship was brought into an English port by a ship of war, and the cargo condemned, and proceedings were still pending against the 9hip, but the defendant had been liberated and his goods restored: it was held, that whatever the plaintiff's right might be to recover passage-money pro rati itineris if the ship were restored, yet pending the proceedings the action could not be maintained; and Le Blanc, J., said, "The footing on which the case of Luke v. Lyde was put, was, that though the master could not recover on the original contract, which was not performed; yet that he might recover upon an implied assumpsit, for a benefit already conferred on the defendant; which in that case was implied, from the acceptance of the goods by the defendant at the port into which they were carried;" Mulloy v. Backer, 5 East, 316. See Ritchie v. Atkinson, 10 Eastr 29S. Where the freighter covenants to pay freight rateably at different periods, see Smith v. Wilson, 8 East, 437; Gibbon v. Mendez, 2 B. & A. 17; and Hume v. E. I. Comp.,post, 291.

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Chinham v. Preston.

S. C. Bnrr. S. C. 486.

Marriage con- JM.OTION to quash an order of Sessions, confirming an order trary tothehoc 0f two justices, for the removal of Edward Young and Rebecca setUernen't,?and nis wife» and a you"g child, from Preston to Chinham, as the the woman can- place of the husband's last legal settlement. It appeared, that notjje removed Edward Young was since the late act(r) married to Rebecca when he was under age, and without banns or licence. Wherefore it was argued, that she could not be removed as his lawful wife, the marriage being void. On the other hand it was contended, that the marriage was not void, but only voidable, quoad the settlement of the parties.

Lord Mansfield, C. J.—There is this plain distinction between things void and voidable: where the law makes a thing void for the benefit of the parties concerned, they may wave that advantage if they please. But the marriage act is avowedly made against both the contracting parties, {Foster, J., added, and against the innocent children too), and therefore they shall not wave the disabilities of it at their own option; the

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marriage is void and null to all intents and purposes, even Chiniiam though the parties should afterwards agree to it, wherever the";

fact appears directly contrary to the statute (a).

Order quashed per tot. Cur. as to Rebecca and the child. Confirmed as to the pauper Edward.

(k) So a marriage by license between with consent of the putative father was

two illegitimate children, being minors, valid; R. v. Edmonton, 2 Bott, 85 (ed.

without consent of parents or guardians, 1793): yet in the case of Horner and

was held void; and Lord Mansfield said; Liddiard, in the Consistorial Court, where

"Before the 26 Geo. 2, was passed, by consent had been given by the mother of

the laws then in being, if a man and wo- the bastard, Sir W. Scott decided, that, in

man made a contract in private per verba such a case, consent could only be given

de prasenti, and kept it a secret, and by a guardian lawfully appointed by the

afterwards there was a public marriage Court of Chancery, and without it the

solemnized by either of them, and issue marriage is a nullity: Reported by Dr.

born of that marriage, nevertheless the Croke; 1 Nolan's Poor L. 264 (ed. 1814);

private contract took place of the subsc- 4 Chetw. Burn's Just 249 (ed. 1820).

quent marriage; because the canon law This decision was confirmed in K. B. on

compelled a strict observance of these con- argument, by three Judges, Grose, J.,

tracts, and decreed them to be solemnized diss.; Priestley v. Hughes, 11 East, 1.

in the face of the Church;" /(. v. Ilodnett, The consent, now requisite, is regulated

1T. R. 96; Weld v. Chamberlainc, 2 Show. by 4 G. 4, c. 76, s. 16.
300; R. v. Brampton, 10 East, 282, S. P. As to publication of banns, see It. v.

And though it was at one time thought, Bilkngliurst, 3 M. & S. 250, and notes.
that the marriage of an illegitimate minor

Smith V. Fraser.

IN trespass and assault, the plaintiff made affidavit before No counter affiFoster, J., to hold the defendant to bail; on the flagrant cir- davit allowed to cumstances of which, he directed 2001. bail to be given. *Now |^u"uban in Mr. Stow moved on a counter affidavit to lessen the bail. But -,

the Court said, it was a new motion, and if the plaintiffs affi- L J

davit was false, he must be.indicted for perjury, as in the common case of affidavits for special bail (w).

[if) Imlay v. Ellesfen, 2 East, 453; Davies v. Chippendale, 2 Bos. & P. 282; Echlin v. Hartop, post, 836.

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Foxcraft v. Devonshire.

S. C. 2 Burr. 931.

INDEBITATUS assumpsit by Foxcraft, assignee of one Payment of bills Satterthwaite, a bankrupt, against Devonshire, a factor, for JJLJJjf^^ 50001. The bankrupt, after the act of bankruptcy committed, clining°trader, but before commission issued, had consigned goods to that without notice . amount to Devonshire's house, who sold the same; but [he] had |£"£*ln£°fnot paid several bills of exchange drawn by Satterthwaite (some of fraudulent.'

Foxchaft which were paid before, some after, the consignment), equiva"• lent in value to the goods consigned, for which he demanded

■ an allowance. The Jury found a verdict for the plaintiff, and

now, upon motion for a new trial, Noel, J., who tried the cause at the last Lancaster assises, certified that there was evidence that the defendant strongly suspected the decline of Satterthwaite's affairs, and that he paid these hills to support a false credit in his principal; and that thereupon the Jury found their verdict upon the footing of fraud, agreeably to his sentiments and directions.

I *194 ] * It was argued for the defendant, by Morton, Aspinall, and Wynn, that upon indebitatus assumpsit, which is an action founded upon a contract, the plaintiff shall not be allowed to affirm the contract in part, by availing himself of the consignment, and to disaffirm it in part, by alleging a fraud in the sale; Geasborough and Wilson; Thomas and Whytt, 1 Geo. 1, coram Lord Macclesfield, C. J.; Wilson and Porter, 3 Geo. 2; Dillon and Hyde {a), M. 1749. The assignees have their election, and may either consider the defendant as a wrongdoer in an action of trover, wherein no set-off is admitted; or they may consider him as a right-doer, in indebitatus assumpsit, and call him to account upon the breach of contract, and then they must allow the whole of the account. In either case the defendant would be safe. For in trover, a tortious conversion must be proved; but none such appears in this case. He came to the possession of the goods legally; the custody was legal; the sale was legal; as a servant and by direction of the principal. In the present action, the defendant was indisputably entitled to an allowance of such part of the bills, as were paid before the consignment. For the statute 19 Geo. 2(b) extends to this very case, of money paid in a course of trade: Collet and De Gols, Ca. temp. Talb. 65; Brown and Williams, 2 Ch. Cas. 135. When a purchaser bond fide has a legal estate vested in him, before the bankruptcy of the vendee(c), and afterwards advances more money to the bankrupt, sans notice of the act of bankruptcy, the Court will not enquire strictly into the time of lending it, so as to injure him; though an original purchase after the act of bankruptcy committed, and within five years before the commission issued, is void. So too in the present case, the defendant having once got a legal Hen on the goods, shall be allowed his whole disbursements on the bankrupt's account. There is great difference between a merchant and factor, and two independent traders. 2 Mod. 242, Myers and Soleby; Action will not lie against a servant acting in obedience to his master's commands, unless the command be to do an apparent wrong. If a master, who has committed a secret act of bankruptcy, sends his servant to market with cattle, and he sells them, shall he be accountable to the as

(a) Villain or Billon v. Ilt/de, 1 Atk. bankrupt are now protecleil bv st. 4 G. 4, 12fi, I Vei-Sc-n. 326. r. lfl, s. 82.

(b) ('. 32, <. 1. Payments hy nv in « (,) Vendor!

•signees in trover; or if he pays that money by his master's Foxcraft order, shall he be liable to indebitatus assumpsit? The case is »•

the same at present. All dealing by factorage or commission iDgV01'gu"tEmust be at an end, if, by relation and fiction, all consignments after a secret act of bankruptcy must be void, and make either the factor a wrong-doer and subject to trover, or accountable to the assignees for the value, though paid in a course of trade. Though by the Judge's report we are precluded from arguing the circumstances of fraud, yet whether the whole of the case be for us or no, if we are entitled to any allowance, as we certainly are to some, we ought to have a new trial j since no allowance has been made at all.

Norton and Yates for the plaintiff, argued, that the finding of fraud has contaminated the whole case of the defendant, so that he is entitled to no favour. That assumpsit is a better and more equitable action than trover, as it admits a set-off and prevents a circuity of actions. That the cases cited only prove, that a man cannot bring assumpsit for part of the goods, which ratifies the contract; and trover for the residue, which supposes a wrong done. That an assumpsit does not ratify the whole contract in the manner contended for, but sub modo; it affirms the act of sale, but does not affirm all other transactions between the factor and bankrupt. The lien of a factor is only on the goods of his principal, but the consignment was after the act of bankruptcy, when they were no longer Aw goods. Suppose it before; yet it would be of dangerous consequence if, after an act committed, a bankrupt is allowed to draw bills on his factor or agent, or increase a lien which they had before.

Per Cur. Mansfield, C. J., (apres).—The question in this cause was, whether the defendants as factors were to be allowed to retain these goods as a satisfaction for their commission and expenses, and also for the bills drawn by the bankrupt, or only for the former. The plaintiff started a preliminary point, whether the transaction of the bills was or was not fraudulent. The jury found it fraudulent; and though the jury might judge wrong therein, yet if upon the whole case the true justice is evidently with the plaintiff, the Court will not grant a new trial (d). * But we are not clear, that this action [ * 19(5 S of indebitatus assumpsit does not affirm the whole transaction. It plainly allows the factor a lien on the goods for his commission and expenses, and why not for money by him advanced on the credit of the trade? Besides, it may be questioned, whether, as the goods have been sold and turned into money, which made the factor a debtor, he is not within the statute 1 Jac. 1, c. 15, as having (by paying the bills) paid his own just debts to the bankrupt, without notice of his actual bankruptcy. Wherefore we have no reason to suppose, that, abstracted from this circumstance of fraud, the true justice of the case is with the plaintiff. This makes it necessary to consider the fraud

(<l)St» f.'oi v. Kilrhin, 1 Bos. & P. 338, and post, 418, 4B4, 1221.

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