Beale v Thompson
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1803 |
| Date | 23 May 1803 |
| Court | House of Lords |
English Reports Citation: 127 E.R. 221
Common Pleas Division
Reversed, 4 East, 546; 102 E. R. 940 (with note).
not from the making of the deed, and the reason which they give for the opinion is, that every grant shall be expounded most favourably for the grantee, and if the lease were to commence from the making of the deed, the lessee Would only have four years. It is true that Brown doubted upon this point, and that the Court of King's Bench came to a different decision. But although the Court of King's Bench might not think proper to go so far in favour of the lessee as the Court of Common Pleas did, yet it does not follow that they were disposed to deny the rule of construing leases favourably for the lessee ; for where two periods are mentioned in a deed, from which the ooramencement of a lease is to take place, the legal construction is, that it shall commence from which of the two periods shall first happen ; and so it was determined in Dyer, 312 b. in marg. This principle of exposition is sound ; but it is not applicable to this case, which does not depend upon the priority of different periods, but upon the question, in whom the option of deciding upon the alternative is vested I The lease agreed for in the present case was seven, 14, or 21 years. An option, therefore, was certainly intended. If then the principle be just, that a lease is to be construed most favourably for the lessee, why are we to determine in this instance that the option is in the lessor I If indeed a provision had been inserted that the lease should be determinable at the option of either party, the lessor would have been entitled to take advantage of it ; but where no such proviso is inserted, the true construction seems to be that the lessee is entitled, at his option, to take that term which is most beneficial to himself, Notwithstanding, therefore, the opinions which have been referred to (405] of Lord Kenyon, and Mr. Justice Buller, we think that where no custom of the country exists upon the subject, the principle of construing deeds between lessor and lessee requires us to hold, that where a grant is made in an alternative which cannot be determined by extrinsic circumstances, the option is left in the lessee. And we shall certify accordingly. There is a case of Keble v. Hall, Litt. 383, 370, which bears very strongly upon this subject. In that case, a lease having been granted to A. and B. for forty years if they and three others, or any of them, should so long live ; a second lease was granted " habendum from the adminis- tration (a), which should be in the year 1568, or from and after the surrender, forfeiture, or other determination of the said lease to A. and B.;" and some of the persons for whose life the first lease was granted having survived the year 1568, a question arose when the second lease ought to commence. The case indeed does not appear by the report to have been finally determined, but the Court strongly inclined to think the lessee should have his election, because that construction ought to be adopted which is most favourable for lessees. 1/3.. 111,- BEALx v. THOMPSON. May 23d, 1803. [Reversed, 4 East, 546 ; 102 E. 940 (with note).] Qu. whether the crews of the British ships detained in Russia under the orders of the Russian Government in the year 1800 were entitled to wages for the time during which the ships were so detained ? Yes, 4 East, 552. Judgment in this ease reversed in B. R.*. Assumpsit for wages due to the Plaintiff as a mariner on board the "Isabella," on a voyage from the port of London to Petersburgh, and from Petersburgh back to London, at 51. per month. The declaration alleged the safe arrival of the Isabella" at Petersburgh, and her return from thence to London, "during the whole of which said voyage the Plaintiff continued and remained in and on board the said ship, in the service of the said Defendant as such seaman and mariner as aforesaid." There were also counts for wages as a seaman, on a quantum meruit, for money paid, laid out, and expended, for money had and received, and on account stated. The cause was tried before Lord Alvauley Oh. J. at the Westminster Sittings after last Michaelmas term, when the following t406] special verdict was found. The (a) This seems to be misprinted in Litt, for Annunciation. * Vide Thompson v. Osborne, 2 Stark. Ni, Pri, 98. Thompson v. lioweroft, 4 East, 34, 47. Beale V. Thompson, Id. 546. Brown v. Milner, '7 Taunt. 319. Plaintiff, a British a) seaman, on the 14th day of July 1800, executed articles to serve as a seaman in a British ship called the "Isabella," of which the Defendant was master, at the wages of 51. per month, on a voyage from London to Petersburgb, and from thence to London, and that in consideration of the said monthly wages the Plaintiff should and would perform the above mentioned voyage ; and the Defendant did hire the plaintiff for the said voyage, at such monthly wages, to be paid pursuant to the laws of Great. Britain ; and the Plaintiff did promise arid oblige himself to do his duty and obey the lawful commands of the officers on board the said ship or boats there unto belonging as became a good and faithful seaman and mariner, and at all places where the said ship should put in or anchor at during the said voyage to do his best endeavours for the preservation of the said ship and cargo, and not to neglect or refuse doing his duty by day or night, nor go out of the said ship on board any other vessel, or be on shore under any pretence whatsoever till the voyage should be ended and the ship discharged of her cargo, without leave first obtained of the master, captain, or commanding officer on board ; and in default thereof it was agreed that he should be liable to the penalties mentioned in the 2 Geo. 2, c. 36, and the 37 Geo. 3, C. 73; and further that 24 hours' absence without leave should he deemed a total desertion, and render the Plaintiff liable to the forfeitures and penalties contained in the acts above recited ; and also that the Plaintiff should not demand or be entitled to his wages, or any part thereof, until the arrival of the said ship at the above mentioned port of discharge, and her cargo delivered ; and that if the Plaintiff should well and truly perform the above mentioned voyage he should be entitled to the wages or hire that should become due to him pursuant to the said articles. The Plaintiff accordingly sailed on board the said ship, which arrived at Petersburgh on or about the 18th day of October in the same year, and continued there in prosecu tion of the purpose of the voyage until the 5th day of November following, on which day the following order was issued by the Russian Government " Whereas we have learned that the island of Malta, lately in the possession of the 'Hercule,' has (4073 been surrendered to the English troops ; but ae yet it is uncertain whether the agreement entered into on the 30th December 1798 will be fulfilled, according to which this island, after its capture, is to be restored to the order of Saint John of Jerusalem, of which His Majesty the Emperor of all the Russias is Grand Master, His Imperial Majesty being determined to defend his rights, has been pleased to command that an embargo shall be laid on all English ships in the ports of his empire till the above-mentioned convention shall be fulfilled." After this order guards were placed along the shore to prevent the crews from escaping from their respective ships until the 10th of the same month of November, when such part of the crew of each ship as were British subjects were taken out by a Russian guard and marched into the interior of the country, and the foreign seamen, being claimed by their consuls, were put on shore and set at liberty. On the 18th and 21st days of the said month of November, the following proclamations appeared in the Petersburgh Court Goalie t " The crews of the two English ships in the harbour of Narva, on the arrival of a military force to put them under arrest, in consequence of the embargo laid on them, having made resistance, fired pistols, and forced a Russian sailor into the water, and afterwards weighed anchor and sailed away ; His Imperial Majesty has been pleased to order that the remainder of the vessels in that harbour shall be burned." "His Imperial Majesty having received from his chamberlain Stalinskoi at Palermo, an account of the taking of Malta, has been pleased to direct that the following note shall be trans mitted to all the Diplomatic Corps residing at his court by the Ministers presiding in the College for Foreign affairs, Count Rotoptskin and the Vice Chancellor Count Fulfil :ùHis Majesty the Emperor of all the Russias has received circumstantial moun is respecting the surrender of Malta , by which it is actually confirmed that a the English generals, notwithstanding the repeated remonstrances on the part of His Majesty's Ministers at Palermo, as well as from the ministry of His Sicilian Majesty, have taken possession of Valetta, and of the island of Malta, in the name of the King of Great Britain, and have hoisted his flag only. His Imperial Majesty's just indigna tion having been raised by this violation of good confidence, he has resolved not to (a) There was a similar special verdict found in a case of Johnson v. Broderick, with this only difference, that the Plaintiff there was a foreign seaman. Both special verdicts were argued and decided together, take off the embargo that has been laid on all English vessels in the Russian ports until [408] the agreement of the convention concluded in 1798 shall have been com pletely carried into execution." On the 14th of January 1801 His Britannic Majesty in Council issued the following order : " Whereas His Majesty has received advice that a large nurnber of vessels belonging to His Majesty's subjects have been and are detained in the ports of Russia, and that the British sailors navigating the...
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