ser of a note made by one Brooks who was insolvent; the endorsement was made on a blank piece of paper; see Sumner v. Parsons, Russel v. Langstaff, Pillans & Rose v. Van Merop & al., Collins v. Emett, in other chapters. The endorsement was viewed as a letter of credit to Brooks. By the Virginia act the maker of a note, if solvent, must be sued before recourse is had to the endorser, and if the maker be insolvent, the jury decides if a suit against him would produce the money; Lee v. Love, 1 Call 497; Johnson v. Ronald, 4 Munford 77, as to the word promise &c. § 21. The rule, caveat emptor, in equity, though it holds as to visible defects in property, it does not as to the fraudulent concealment of them by the vendor, Sugden's Vendors &c. 221, 230, and cases cited. The purchaser must notice the quality of the land or a way over it; Oldfield v. Round, 5 Ves. jr. 508, 509. As to defective description, Calverly v. Williams, 1 Ves. jr. 210, 213; Shirley v. Davies, 6 Ves. jr. 678. False or fraudulent descriptions by the vendor, the purchaser may in law and equity rescind the contract; Fenton v. Brown, 14 Ves. jr. 144; Grant v. Munt, Coop. 175; not if he knew it was false; Dyer v. Hargrave, 10 Ves. jr. 505; Mayo v. Purul, 3 Munf. 243. CнH. 33. Art. 1. CHAPTER XXXIII. ACTION OF ASSUMPSIT. FREIGHT. ART. 1. General principles. 281.-1 Vent. 100.-1 Esp. § 1. Though freight is often secured by covenant or charter- See Charterparty, Ch. party, and is recovered in action of covenant, yet often also it 103.-Imp. is recovered in assumpsit, either indebitatus assumpsit or quan- M. P. 276, tum meruit. It is first material to consider what freight is, and when due. As the cases may be very numerous, and the 113. principles on which they all rest are but few and plain, the subject will be best understood by attending to the principles on which freight becomes due and is recoverable. The safety 1 Esp. 113. of the ship is the mother of freight, " and where no freight is earned by the ship, the mariners have no title to wages. Freight is the hire of a ship, or part of one, for conveying Insurance on goods from one port to another; or is the sum agreed on by Ch. 40, a. 16. the owner and the merchant for the use of the vessel, and is a lien on the goods. On a general principle an owner of a Freight, see CH. 33. Art. 1. Imp. M. P. 279, 280. Abbot 196, 200. 4 Mass. R. 672, Pearce v. Phillips. 4 Mass. R. 692, 702, Gilchrist v. Ward. vessel has an action of assumpsit against any person who (without deed) uses her, or transports his goods in her; but the general principle is controlled in some cases by certain established rules. These are: First. If a merchant hires a ship, and do not fully load her, without his consent the master cannot take in other goods, without accounting to him for the freight. §2. Second. Though the merchant do not load the full quantity of goods agreed on, yet he shall pay the whole freight; and if he load more, yet he shall pay for the excess. §3. Third. If a time be appointed, and either the ship be not ready to take in, or the merchant to put on board, the parties are at liberty and have a remedy by action for the detriment. 4. Fourth. If a part be on board, and some misfortune prevent the merchant sending the whole in time, the master may contract with another and have freight, as damages for the time they were on board longer than limited. On the other hand, if the vessel be not ready, the merchant may ship the remainder of his goods on board another vessel, and recover damages against the master for the rest. § 5. Fifth. If a ship be freighted out and in, (or out and home) there is no freight due till the whole voyage is performed, if therefore the ship perish coming home, the whole freight is lost; so if captured, unless due from the captors &c. $6. Sixth. The master shall take no freight for any goods lost by shipwreck, plundered by pirates, or taken by the enemy, unless the ship and goods be redeemed. In which case he shall be paid his freight to the place where he was taken, upon contributing to the redemption. 7. Seventh. The master shall be paid his freight for the goods saved from shipwreck, and in case he cannot get a vessel to carry them to the place where they were bound, he shall be paid in proportion to the part of the voyage already gone; this must mean if the merchant receive his goods. And if the master have another ship ready to carry the goods to their place of destination, and the owner of them takes them himself, yet the master shall have his full freight, for then the master is ready to do as the circumstances require. The plt. carried money for the deft. to India, on half profits, in lieu of freight and commissions. Part of the goods were lost. There was a profit on the part not lost, and no profit on the whole taken together. The court decided that the ship owner was not entitled to any of the profits on the goods not lost, as the whole adventure was to be considered. In this case it appeared that specie was shipped on a voyage from the United States to Sumatra, and back to Europe, the owners of the ship to have half profits in lieu of freight; at Sumatra the property of the owners and shipper was invested in a cargo for Europe and there sold, and there the supercargo caused them to be credited with their respective proportions of the proceeds. The share of the owners was duly remitted to them with half the profits on the adventure of the shipper, who having directed a particular appropriation of his share, the same remained in a merchant's hands, by whose failure a loss accrued thereon. This was the shipper's loss, of which the ship owners were not liable to bear any part. CH. 33. Art. 1. fin v. Storer> In this case also A hired one fourth of a vessel for a voyage 5 Mass. R. at a certain sum per month. In the voyage she was wrecked, 252, 257, Cofand the cargo was transported to the agreed port of delivery. Held, the owner shall receive the hire as if the voyage had been performed, deducting the expenses of transporting the goods from the wreck to this port; held also, A must pay his fourth part of this transportation from the wreck to the port of delivery held 3. A, the freighter, paid none of the expense of landing his goods at the place of wreck, (Eastham,) but this fell on the freight, but was considered as receiving his goods after there landed. In fact, as the owner of the vessel delivered A's goods at their destined port, (Biddeford,) A paid full freight. The expense by land from Eastham to Biddeford was deducted out of the whole freight; this expense he paid. 272. Further rules laid down by Lord Mansfield and the court. § 8. Eighth. If a freighted ship become accidentally disabled 2 Burr. 882, on her voyage, without the fault of the master, he has his option 890, Luke & al. v. Lyde.of two things, either to refit his vessel, if he can in convenient 1 W. Bl. 190. time, or to hire another to carry the goods to the port of de- -Abbot 194, livery. If the merchant disagrees to this, and will not let him 200.-Dougl. do so, the master will be entitled to the whole freight for the full voyage ;" and if he "hire another ship to complete the voyage," "" he shall have his freight of the goods to be reckoned, according to their proportion to the whole cargo, and the goods shall pay the costs of their salvage." It seems to follow from this rule, that if the master will not do so where he can, and carry the goods to the port of delivery, he shall lose all his freight. 9. Ninth. "As to the value of the goods it is nothing to the master of the ship, whether the goods are spoiled or not, provided the freighter takes them. It is enough the master has carried them; for by so doing he has earned his freight, and the merchant shall be obliged to take all or none; he shall not take some and abandon the rest." "If he abandon all, he is excused the freight, and he may abandon all, though they are not all lost." These rules, eight and nine, were laid down in this case, viz: the deft., Lyde, shipped 1501 quintals of fish in the. Sarah from Newfoundland to Lisbon, at 2s. freight a quintal. CH. 33. Mal. Lex Mer. 99 to 102.--Abbot 196. Fish cost at Newfoundland 10s. 6d.; the plts. shipped 945 quintals; this and the ship they insured, but not the freight on the 1501 quintals. Nov. 27, 1756, she sailed from St. Johns, and had been on her voyage seventeen days, when, Dec. 14, she was taken by a French ship within four days' sail of Lisbon. The captain, officers, and crew (except one man and a boy) were put on board the French ship. Dec. 17, the Sarah was retaken by a British ship, and Dec. 29, carried into Biddeford, in England; there the plts. abandoned the ship and the 945 quintals. The deft. had his fish of the recaptors, and paid them 5s. a quintal, salvage, at the rate of one half. The fish could not be sold in England for more than 10s. a quintal. Bilboa was deemed the best market; there the deft. sent his fish without delay, and there sold it at 5s. 6d. a quintal, clear of freight there, and all expenses attending the sale there. The freight from Biddeford to Lisbon was higher than from Newfoundland to Lisbon. All the distance from the place of capture to Biddeford was out of the ship's course. Judgment for the plts. for freight on the half saved, for the part of the voyage performed before the capture; that is, computing the voyage at twenty-one days, freight was allowed for seventeen. The court added, that there was a capture without the master's fault, and a recapture, the deft. did not abandon, but took his goods, and did not require the master to carry them to Lisbon. Some freight then is due, for the freighter received his goods. This was computed as above. The salvage, one half, was considered the same as if half the goods had been lost. Abbot 201, has the same idea, that the expenses paid for saving the goods must be viewed as so much of them lost; hence, if a bale of goods sell for $100, and $75 have been paid for the expenses of saving them, three quarters of them must be considered as lost. So in the Sarah's case, 5s. a quintal on the fish, half the value having been paid as salvage, half was viewed as lost, and freight allowed on the other half pro ratâ itineris. In Coffin v. Storer our court said, this rule adopted in Luke v. Lyde" is manifestly unjust." 10. Tenth rule. If a master state that his ship shall take in a certain lading, and he take in more, especially of other men, he shall lose all his freight. And in such case, if goods be cast overboard in a storm, the master shall bear the loss, and there shall be no contribution or average. 11. Eleventh. If a ship freighted for one port enter into another by reason of storms, or some force against the master's will, the goods shall be transported to the port of delivery at his charge. And if one compel the master to overload his ship, he is liable to make the master whole. 12. Twelfth. If a merchant freight a ship with all her furniture by the month, he to man and victual her, and contract with the owner to pay him for the use of the ship and furniture £20 every month, at her return to the Thames; and after being abroad about two years she is lost in coming home, the master shall have his freight at the time of the loss, for the money is due monthly. Quære, as to a part of a month. 1 CH. 33. Art. 1. § 13. After the mortgage of a ship the mortgagee cannot H. Bl. 117. have assumpsit for the freight till he takes possession; for the Imp. M. P. 281, Chennemortgager while he retains possession is owner as to all the ry v. Blackworld; he bears the expenses and is to reap the profits; nor burne.-1 H. does assumpsit lie against the mortgagee for necessaries pro- Jackson v. vided for her before he takes possession. See Mortgages, Vernon. Ch. 112. Bl. 117, 120, Wolf. 14. Freight to a neutral master, on enemy's goods, can 3 T. R. 323, be settled only in the admiralty; for it is connected with the 348, Smart v. prize question, as whether he has forfeited it by having contraband goods &c., &c. Hence assumpsit does not lie for such master to recover freight on such goods. But he must sue in the admiralty, and found his claim on national law. 104.-12 § 15. The master may retain the goods, shipped on board Imp. M. P. his vessel, till he is paid his freight; but if he parts with the 281-Dougl. possession of them, he must then resort to his contract. And Mod. 511.— he may plead his lien, or give it in evidence. Mal. Lex See Ch. 44. 2 Dallas 182. 16. If a ship be freighted so much out and so much home, Mer. 98.the outward freight shall be paid, though she perish in return- Dougl. 541. ing home; and when the ship is lost, the whole freight, from -1 Šid. 236, the last place of payment, is lost, except as Sth and 9th. § 17. If the master sail in a tempest, without a pilot, or necessaries, or contrary to contract, he cannot demand freight; his claim to it is forfeited by his misconduct. Mal. Lex Mer. 98, 102. 597. § 18. The plts. took on board of their vessel two horses of the Atwater & al. deft., to be carried from New Haven to Trinidad, for a freight Court of Erv. Pinto, Sup. of $70 each. Having been out 13 days, and being within rors in Con2 day's sail of Trinidad, the vessel, without any fault of her uecticut. master &c., was captured by a French privateer, Dec. 1799, and ordered for Guadaloupe. Three days after she was recaptured by the English, and carried into Martinico. The said horses were ransomed at one third of their value. This, Pinto, the deft., paid, and received the horses in good order, and made no objection, and sold them for $420, a good price, and before the plts. had a reasonable time to proceed on the voyage to Trinidad. For Pinto accepted the horses at Martinico, sold them well, and did not request them to be carried to Trinidad. The court held, that Pinto was liable to pay of the freight, so much of the passage having been performed, after deducting the salvage. Cases cited, 1 Brown 86 VOL. I. |