Birkley and Others against Presgrave
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1801 |
| Date | 03 February 1801 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 86
IN THE COURT OF KING'S BENCH.
Referred to, Harrison v. Bank of Australasia, 1872, L. R. 7 Ex. 49; Svensden v. Wallace, 1884-85, 13 Q. B. D. 73; 10 App. Cas. 404; The Brigella [1893], P. 194; The Bona [1895], P. 129. Adopted, Milburn & Company v. Jamaica Fruit Company [1900], 2 Q. B. 546. Dictum explained, The Leitrim [1902], P. 260.
86 BIRK.LEY V. PJRESGRAVE 1 EAST, 220. [220] bikkley and others against presgrave. Tuesday, Feb. 3d, 1801. An action upon promises lies by a ship owner to recover from the owner of the cargo his proportion of general average loss incurred by sacrificing the tackle belonging to a ship for an unusual purpose, or on an extraordinary occasion of danger, for the benefit of the whole concern. [Referred to, Harrison v. Bank of Australasia, 1872, L. R. 7 Ex. 49; Svensden v. Wallace, 1884-85, 13 Q. B. D. 73; 10 App. Cas. 404; The Brigella [1893], P. 194; The Bona [1895], P. 129. Adopted, Milburn & Company v. Jamaica Fruit Company [1900], 2 Q. B. 546. Dictum explained, The Leitrim [1902], P. 260.] In assumpsit, the first count alleged that the plaintiffs were owners of the ship " Argo," with the appurtenances, of the value of 6751., whereof G. A. was master, which ship, on the 3d of November 1799, was proceeding upon a voyage with a cargo of wheat of the value of 8551.; that during the voyage part of the furniture of the ship, of' the value of 201. was utterly lost to the plaintiffs, and other part thereof sustained damage to the value of 501.; which loss and damage were occasioned by certain acts of the master arid crew of the vessel, properly and necessarily done by them in order to preserve the ship and cargo from perishing by storm. That certain help and assistance were then and there obtained by the master in order to preserve the ship and cargo from so perishing by storm, and were then and there necessary and proper for that purpose, for which the plaintiffs were obliged to pay and did pay 201. That the ship and cargo were, by the means used for the general preservation thereof, òpreserved from the storm and completed the said voyage. Of all which premises the defendant afterwards had notice. That the defendant was, during the time the wheat was on board the ship as aforesaid, and at the time of the loss, damage, help, and assistance aforesaid, the owner of the wheat, and was and is benefited in respect thereof by the acts of the master and crew, and by the said help and assistance; from all which respectively the loss, damage,- and expences accrued. By reason whereof the defendant, as the owner of the wheat, became liable to contribute to the said loss, damage, and expences in a general average; and there-[221]-upon in consideration of the premises the defendant promised to pay the plaintiffs so much money as he, as such owner of the wheat, was liable to contribute to the said loss, damage, and expences in a general average when he should be thereunto afterwards requested. And the plaintiffs averred that the defendant, as such owner of the wheat, was liable to contribute to the loss damages and expeuces, in a general average, the sum of 401. whereof he had afterwards notice. The declaration contained two other counts ; the one indebitatus assumpsit for money due and payable for a general average; and the other for money paid, laid out, and expended ; with the common breach to the whole. The defendant pleaded non assumpsit. This cause came on to be tried at the last assizes for Durham before Graham B. when a verdict was found for the plaintiffs, damages 191. 12s. subject to arbitration as to the quantum, and to the...
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