Boucher v Lawson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1815 |
| Date | 01 January 1815 |
| Court | Court of the King's Bench |
English Reports Citation: 95 E.R. 53
IN THE COURT OF KING'S BENCH, AT WESTMINSTER
CAS. T. HARD. 8B. HILARY TERM, 8 GEO. II. 53 [85] hilary term, 8 geo. II. 1734, B. R. Philip Lord Hardwicke, Lord Chief Justice. Sir Francis Page, Knt., Sir Edmund Probyn, Knt., William Lee, Esq., Justices. John Willes, Esq., Attorney-General. Dudley Ryder, Esq., Solicitor-General. boucher versus lawson. Although it appear that the freight of certain goods shipped on board a general ship usually belongs to the master, yet if he refuse to deliver the same to the consignee, an action for non-delivery lies against the owners on the general custom, and this, although the master do not account to them for the freight. But then in the case of a special verdict, it must be found that the ship was a general ship; i.e. carrying for hire; for the custom need not be alledged in the declaration : facts must be found sufficient to bring the case within the custom. The plaintiff in a hard action will not after verdict be permitted to discontinue. An action on the case brought against the defendant, for that the plaintiff delivered a parcel of goods into a ship, whereof the defendant was owner, bound from the river Tagus to London, where the goods were to be delivered ; and, that the defendant undertook to carry the goods and deliver them at London to the plaintiff; the plaintiff averred, that the ship did arrive safe at London, and that the defendant refused to deliver the goods to him. The defendant pleaded not guilty. On a trial at Guildhall, before Lord Hardwicke, a special verdict was found as follows : That the defendant was sole owner of the ship ; that he appointed one Fletcher master of it; that the plaintiff put the goods on board this ship to be carried from the river Tagus to London. And the bill of lading was found in htec verba, whereby the plaintiff was to pay so much freight for the goods, and that the goods were to be delivered at the port of London on the 9th of August, damages of the sea excepted; which bill of lading was signed by the master. [86] They further find that the ship did arrive safe at London ; that the plaintiff has made no assignment of the goods. That in September the plaintiff made a demand of them, and that the defendant refused to deliver them, and that the plaintiff was ready to pay the defendant the freight. They further find that the goods were Portugal gold, and that to export it is an unlawful trade according to the laws of Portugal. They, lastly, find it to be usual when any gold is exported from Portugal to this kingdom, for the master of the vessel to take the whole freight to his own use, without accounting for any part of it to his owners, unless there be some special agreement between them to the contrary, and that in the present case there was no such special agreement. Serjeant Darnel, for the plaintiff. That this does not differ from the common case of owners of ships, who in like manner as carriers are liable for the master's neglect in respect of freight. Mars and Since, 1 Mod. 85. 2 Lev. 69. 1 Vent. 190, 238, [S. C.J. An action against the master of a ship for damage the plaintiff had received by his negligence; it was strongly insisted upon, that the action did not lie against the master, but should have been brought against the owners, themselves. But the Court held the action lay, either against the owner, or master, for that they were both entitled to an action for the freight. The defendant in that case pleaded, that eleven armed men came on board him under pretence of pressing, and took away the gold ; but this defence was not allowed of, the Court comparing it to the case of a common carrier. upon the 25th of May, 1731, had no access to her from that time till the 25th May, 1733, upon which day she was delivered of a bastard child, begotten by...
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...to have been based on the principle that smuggling and freedom ‘gang thegither’ and had its high water mark in Boucher v. LawsonENR (Cas. t. Hard. 85). Scrutton L.J., in Ralli Brothers v. Compania Naviera Sota y AznarELR ([1920] 2 K.B. 287), reserved the issue for consideration should it ar......
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