Luke et Al' v Lyde

JurisdictionEngland & Wales
Judgment Date01 January 1759
Date01 January 1759
CourtCourt of the King's Bench

English Reports Citation: 97 E.R. 614


Luke et Al'

S. C. 1 Black. 190.

Referred to, Metcalfe v. Britannia Ironworks Company, 1876-77, Q. B. D. 620; 2 Q. B. D. 427.

luke et al' versus lyde. 1759. [S. C. 1 Black. 190.] In case of loss at aea, freight must be paid only in proportion to the goods saved, and the part of the voyage which was performed. [Eeferred to, Metcalfe v. Britannia Ironworks Company, 1876-77, 1 Q. B. D. 620 ; 2 Q. B. D. 427.] A special case from the last Devonshire Assizes; reserved by Ld. Mansfield, who went that circuit, last summer. The defendant Lyde shipped a cargo of 1501 quintals of fish, at the port of St. John in Newfoundland, on board the ship " Sarah " belonging to the plaintiffs, to be carried to Lisbon. The plaintiffs were to be paid freight, at the rate of two shillings per quintal. The original price of the said cargo was, at Newfoundland, ten shillings and six-pence sterling per quintal. The plaintiffs had also, on board the said " Sarah," a cargo of 945 quintals of fish, which wag their own property. The ship sailed from the port of St. John, on 27th November 1756; and had proceeded seventeen days on her voyage; and was taken on the 14th of December heirs as a future contingent use to take effect in case he survived his mother, and subject to revocation. He admitted the case of Lady Sunderland and Duke of Marlborough to have been determined as cited; for where a power is to be executed by will, every thing necessary to a will is implied, and therefore if the subject is a real estate, it must have three witnesses; if a personal estate, it must be proved in the Ecclesiastical Court: for the same reason, it will be ambulatory during the life of the testator or appointor ; and the depositions in it will be liable to lapse by the death of the appointees in the life of the appointor, which last point was the great point determined in the case of The Lady Swnderlatid and The Diike of Marlborough ; but notwithstanding this, when the appointment takes effect the appointee takes the use under the deed, and not under the will or the appointment; yet the estate passes by the deed, and. the will is only declaratory of the usa; therefore Thomas is in this case to be considered as taking the use out of the seisin of the trustees, under the deed, as a purchaser, and consequently the estate, by his death without issue, descended to the defendant, his personal heir. N.B. Mr. Yorke urged the distinction in Co. Lit. 271 b. which see. Vide also 2 Atk. 565, 661. (i) See Str. 1270. 8 Vin. 349, pi. 14. Lutw. 797. Ld. Eaym. 728. Cro. Eliz. 833, 919, 920. Salk. 242. Comyns, 72, all ace. and Cro. Car. 161. 2 Mod. 286, to the contrary were denied in Corny, and Salk. a BURR. 813. LUKE V. LYDE 615 [883] following, within four days sail of Lisbon, by a French ship. And the captain, the other officer*, and all the crew (except one man and a boy) were taken out of the " Sarah," and put on board the French ship. The ship " Sarah " was retaken on the 17th of the same December 1756, by an English privateer: and on the 20th of December 1756, brought into the port of Biddeford in Devonshire. The plaintiffs, having insured the ship and their part of the cargo, abandoned the same to the insurers. But the freight, which the owners were entitled to, was not insured. The defendant had his goods of the recaptors, and paid them 5s. per quintal salvage, at the rate of 10s. per quintal value. The fish could not be sold at all, at Biddeford, nor at any other port in England, for more than 10s. per quintal clear of all charges and expences in bringing them to such port. And the most beneficial market (in the apprehension of every person) for disposing of the said cargo of fish, was at Bilboa in Spain; to which place the defendant sent it in the March following: and there was no delay in the defendant in sending the said cargo thither. And it was sold there for 5s. 6d. per quintal, clear of the freight thither, and of all expences attending the sale there. The freight from Biddeford to Lisbon, is higher than from Newfoundland to Lisbon. From the time of the capture, the whole way that the ship was afterwards carried, was out of the course of her voyage to Lisbon. The question was " whether the plaintiffs are entitled to any and what freight; and at what rate, and subject to what deduction." Mr. Hussey, for the plaintiffs, observed (by way of preface) that the right of the owners of the ship was not so devested by the capture, as to preclude them from bringing their action for the freight. If the capture made any alteration, the recapture put every thing in statu quo. When the ship came into Biddeford there was a total incapacity and inability in the ship to proceed on the voyage; * and there was an abandoning by the owners, and acceptance by the insurers. This inability to proceed was involuntary, and accidental: without any fault of the [884] owners, master, or mariners.(&) [* Qu. this fact ? It is not stated ; but from what is stated seems improbable*] (k) Qu. For the inability immediately before mentioned was the inability of the ship when at Biddeford, and that is the inability to which this relates; and there is nothing but the abandonment stated to shew the plaintiffs might not have proceeded with their ship from...

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