whole freight is due to the master. Art. 1. Con. Art. 296 if the master I. CH. 33. is obliged to have his vessel repaired during the voyage, the freighter must wait or pay the whole freight: if she cannot be repaired, the master is bound to hire another vessel. If he cannot do so, the freight is due only in proportion to the part of the voyage performed. Art. 299: the master loses his freight and is liable for damages to the freighter, if he prove the vessel was not sea worthy when she sailed. This proof is admissible, though contrary to the certificates of survey when she departed. Art. 300: if the vessel be arrested in the course of her voyage by order of a sovereign power, no freight is due for the time of her detention, if chartered by the month; nor increase of freight, if chartered for the voyage. The wages and maintenance of the crew, during the detention, are reputed an average loss. Art. 301: the master is to be paid the freight of the goods thrown overboard for common safety, at the charge of a general contribution. Art. 302 no freight is due for goods lost by shipwreck, stranding, or pillage of pirates, or capture of enemies. The master is held to refund the freight, if paid in advance, unless there be a contrary agreement. Art. 303 if the vessel and cargo be ransomed, or if the cargo be saved from shipwreck, the master is paid his freight as far as the place of capture or shipwreck; and all his freight, if he contribute to the ransom and carry the goods to their destined place. Sailors' wages are not subject to contribution. See 2 Taunt. 407, Morrison v. Parsons, as to freight in case of a mortgage. § 21. Green brought assumpsit against the Wards, and laid the Ward & al. v. common money counts. June 27, 1825, the defts. owned the Green, 6 Cowen, 173, Morgiana, James Alleh, master. Green gave in evidence the 178, error from following receipt signed by the master, Received of Benjamin the common Green 270 Spanish dollars, deliverable at New York, dangers pleas. of the seas excepted, unto the said Benjamin Green, one-anda-half per cent. primage. New Orleans, the 27th June, 1825.' The plt. below rested on this evidence. Wards gave in evidence the freight list of the ship, dated June 28, 1825, containing various articles, in the names of various shippers, on various consignments, which did not include the dollars. receipt, signed by H. Ward, one of the owners, of even date with said receipt, acknowledging the receipt of $15 of the plt. as his passage money to New York, in the steerage. Deft. proved Green was a passenger, and that H. Ward sailed as supercargo. Agreed, the master's contract for the specie was made without the knowledge of H. Ward, and that he knew nothing of it till after the specie was stolen as the master stat ed. A Ön these facts, held, 1. The master aboard is the agent Art. 1. Con. I. CH. 33. of the owners, and has power to bind them as to the freight : 2. Where one of them is on board and exclusively attends to the shipments of the cargo, he is not bound by the master's contracts, but to show he is not liable, he must prove the fact that he was exclusively attending to the shipment of the cargo, and he must show the same thing, though on board as supercargo: 3. It is not enough one of the owners is on board, as supercargo; and where this was the case, and the master of a general ship receipted dollars, as above, and they were so stolen on the voyage, the owners are liable: 4. A general ship is one in which the master or owners engage separately with a number of persons, unconnected with each other, to convey their respective goods to the place of the ship's destination. The Morgiana was a general ship. See King v. Lenox, 19 Johns. 236; 11 Mass. R. 99; 4 Greenl. 407; Bee's adm. R. 353-369; 7 Cowen, 564.. ART. 2. Con. Welch v. Hicks, 6 Cow § 23 con. Assumpsit for freight of the ship Romeo, from St Petersburgh, in Russia, to Provincetown, in Massachusetts. Her owner declared he received goods on board at St Petersen, 504-511. burgh, consigned to the deft. at New York, but the ship was forced by the violence of winds and tempests, to put into Provincetown on her voyage to New York, where the deft. elected to receive his goods, and did receive them, and released the plt. from his obligation to transport them to New York; added counts suited to full and pro rata freight. Verdict for the plt., new trial granted. Held, 1. Where a ship is disabled from prosecuting her voyage by perils of the sea, and puts into an intermediate port, and the goods are received there by their owner, he is liable for freight pro rata itineris: 2. In such a case, where the master, without sufficient cause, refuses to repair his vessel and send on the goods, and to procure other vessels for the purpose, the owner may immediately demand his goods, and be discharged from freight, both full and pro rata. To entitle to pro rata freight, the acceptance must be voluntary, as in this case, the master might have repaired in two or three weeks, or obtained other vessels in Provincetown. See 12 Wheat. 383; 1 Mason, 43; 7 Cranch. 358; 1 Edwards, adm. R. 246; 3 Binn. 437; 5 Binn. 525: these, and several other cases appear to have been decided on this distinction: if the owner accept voluntarily his goods at an intermediate port, he pays freight pro rata, &c., if by compulsion he does not so pay; also 15 Johns. 332; 17 id. 722; Brod. & Bing. 379; 7 Cowen, R. 564. 37. The ship owner may put into port and repair his ship in two months, and then proceed in order to earn his freight, the want of repairs being occasioned by a storm in the voyage, though by the delay, the cargo (tobacco) may lose its best market. 2 Pick. I. CH. 33. R. 104-112; Hen. Clark v. Mass. F. and M. Ins. Com.; see 16 Johns. R. 348; Palmer & al. v. Lorillard: Hadley v. Clark & al. 8 D. and E. 259. Art. 2. R. 334. 38. Consignor liable for freight; as where the deft. owned Baker v. Hagoods, and shipped them in the plt's. vessel to be carried from vens, 17 Johns. New York to Liverpool, and there to be delivered to A, consignee, he paying freight for the same, with primage,' &c., according to the bill of lading signed by the master; who, when he arrived at Liverpool, delivered the goods to A, not then receiving the freight, though he afterwards demanded it; when payment was refused. Held, the plt. had an action for the freight against the consignor: 2. It seems, where the consignor is not the owner of the goods, and they are not shipped for his account and benefit, he is not liable for the freight on such a bill of lading: 3. In all cases it is the master's duty to endeavour to 6 Serg. & R. obtain the freight of the consignee. $39. Lien for freight on the goods. This is the result of usage in trade, and does not exist where the parties by special contract provide for the freight. 429. Chandler v. Belden, 18 $9. In Pothier on maritime contracts in 1821, are found the ART. 3. following rules as to freight. 1. A ship may be let to hire in whole, or in part, as by the ton of 42 cubic feet, or by the quintal of 100 weight. 2. If no freight be agreed, the merchant pays the usual freight. 3. If he put his goods on board without the master's knowledge, he may reland them; but if knowing they are on board, he proceeds to sea with them, a mutual contract is presumed, and this constitutes a contract of charter party, and the master must carry and deliver the goods; but by the French maritime ordinance of Louis XIV., the master has the highest freight. 4. The contract of charter party is complete by the consent of the contracting parties; the writing is only proof of it. 5. The master is not bound, by the bill of lading, as to the quality of the goods; and as to the weight he may add, 'as it is said,' if the owner of the goods do not offer proof of the weight it is to be made in the master's presence. 6. The master engages his ship is fit for the voyage, properly maned and documented: if not so he looses his freight, and is liable in damages. 7. He has no excuse for not delivering the goods, but superior force, as storms, &c., and sovereign power preventing him. If liable for failure, he pays the price of the goods at the port of delivery, deducting freight and charges. 8. If the consignee refuse to receive the goods, and the mas Con. I. CH. 33. ter is in no fault, he may get an order to sell enough of them to pay freight and charges, and may deposit the residue in some magazine at the owners' risk. Art. 3. Con. 1 Mason, 43, Sampayo v. Palter. ART. 2. 17 Mass. R. 3 Pick. 446 adm. v. Thompson. 9. If the master let the ship where the owner lives, without his knowledge, he is not bound, but the master is. 10. The master has his freight if he delivers the goods, though spoilt. 11. If on the passage he is prevented by superior force to proceed, he is not bound to get another vessel, but may claim his freight for the part of the voyage performed. But where a vessel has been captured on her voyage, and condemned at an intermediate port, and a part of her cargo has been restored, and sold at the same port, no freight is due for the cargo restored. In Luke v. Lyde, and similar cases, the owner of the goods carried part way, voluntarily received them, and dispensed with the further transportation. CHAPTER XXXIV. GAMING. § 6. A, plays away A, plays away B's money to C; B may have assumpsit for money had and received, and recover his money of C. As where the plt., delivered a parcel of bank notes to a carrier, who paid them to the deft. for a loss at a faro table. The plt. recovered the amount of the debt, with interest. § 7. A bill of particulars. Held, this bill must give as much 450, Babcock information as a special declaration, so that the deft. may know the real ground of the action : 2. It may be amended: 3. If not sufficient, or if not supported by proper evidence, the plt. may be nonsuited. 4. All gaming is unlawful. Money lost at gaming by fair or foul play, cannot be recovered back by the loser, nor by his executor or administrator, in an action commenced after three months from the losing. See a. 5 s. 13: 5. The plt. cannot recover where he must show his own illegal act as the foundation of his demand: this is a settled principle in the civil and common law, generally. 3 Rand. 214220. Jones v. § 8. Equity relieves against a judgment for a gaming debt, though the party failed to defend himself at law, and therefor give no good reason: see ch. 13, a. 1. s. 3; seems contra: 2. Where a part of a bond is on gaming consideration, and the other part for a legal consideration, equity relieves as to the vicious part, and supports the good part; the obligor being plt. in equity; as he asks for equity he must do it. § 9. A loses money at unlawful gaming; gives his note to a Sevier, 1 Litt. third person, he having given the winner an adequate consideration for it, is valid, though such third person had full knowledge 50. of the whole transaction. p. 409. The plea need not be sworn I. CH. 33. to, alleging the note sued was given to secure the repayment of Art. 2. Con. money lent for the purpose of gambling; and 3 Marsh. 499. § 10. The issue was, whether a note was given on a gambling consideration or not. Held, evidence the payee had the gene- Chambers v. ral character of a gambler was not admissible, but evidence was Simpson, 3 admissible to prove he in fact was a gambler. Litt. 290. nessee R. 369. § 11. Held, assumpsit for the price agreed to be given for a Herd v. Vinnote sold; which note was given for a gaming debt. B loses cent, 1 Tenmoney fairly at play, and voluntarily pays it, he cannot recover White ide v. it back at common law: so is the case, if won fairly, and the Tabb, Cooke's loser voluntarily pays it, knowing all the circumstances. R. 387. CHAPTER XXXV. GUARDIANS, IDIOTS, MINORS, NEXT FRIENDS. 1. The common law of guardianship in socage, never pre- ART. 1. vailed in chancery.' 1 Hop. Ch. R. 226. Con. 1 con. The guardian's general bond does not embrace 1 Hop. Ch. R monies arising from the sale of the minors' land. In case of 512-514. partition and sale, he gives a bond with sureties for the special purpose. In debt on the guardian's bond to the judge of probate, the 1 Greenl. 186 general plea of performance is a good plea: 2. If he neglect to -195, Bailey account, to charge him on his bond, therefore, the judge first judge v. Rocites him to render his account. The guardian by his bond is gers & al. not held to render his account until he shall thereunto be required,' and required by the judge; Mass. stat. 1784, ch. 55, Maine stat. 151, s. 1; 8, and 9, W. and M. ch. 11, not adopted. The many cases cited, generally, have been cited in this work. 15 con. The court will not appoint any of its officers, 1 Hop. Ch. R. as such, to act as guardians; nor any person, without his writ- 102. ten consent. Justice may appoint one ad interim, and must be a real person. 2 Cowen, 430; 2 Johns. 192. § 19 con. Notwithstanding this provision, &c., the legislature has power to license sales of such estates. This power is not 16 Mass. R. of a judicial nature. It decides no controversy, nor affects title 326-332. to property: if judicial, the legislature cannot exercise it without violating the constitution. Massachusetts act, March 2, 1829, impowers the Supreme Judicial Court to authorize some person to sell all, or part of the real estate of minors, or persons non compos mentis, and to put the proceeds out on interest, however the estate may have been acquired. |