NAMES OF THE CASES REPORTED IN THIS VOLUME. Aldridge and Higdon vs. Turner, Annan and State, use of Oyster, Barney, et ux. vs. Coale, et ux. Bowie, use of Ladd, et al. vs. Duvall, Burch, et al. vs. Scott, Carnan and Williamson, Chamberlain vs. The State, use of Keiler, Chappellear's Ex'rs vs. Harrison, Clarke vs. Belmear, Coale, et ux. vs. Barney, et ux. Crane vs. Meginnis, Danels vs. Taggart's Adm'r, Donnell and Pawson's Adm'rs, Donnell vs. Pawson's Adm'rs, Dorsey and Edelen and Dorsey, Dugan vs. The Mayor and City Council of Baltimore, Duvall and Bowie, use of Ladd, et al. Dyer vs. Dorsey and Edelen, Hoskins vs. Rhodes, Hughes, et al. and Giraud's Lessee, Hughes's Adm'r vs. Mayor and City Council of Baltimore, Kiersted vs. The State, use of Costello, Mactier and Wirgman's Adm'rs, Mayor and City Council of Baltimore vs. Hughes's Adm'r, Mayor and City Council of Baltimore and Dugan, CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OF MARYLAND. DECEMBER TERM, 1829. PAWSON'S Adm'rs vs. DONNELL. DONNELL vs. PAWSON'S Adm❜rs. It is the unquestionable and exclusive right of the Jury to decide on facts, of the existence of which, contradictory testimony is adduced. The owner of a ship and cargo has the uncontrolled power of breaking up, or changing the voyage. The principles which should govern such cases, in the absence of all commercial usage on the subject, and by which the effect of its action on the contract of the ship master or supercargo with the ship owner, is to be determined, are 1st. If by the exercise of this privilege a special injury is done to either, the ship owner must bear the loss, and make a reasonable indemnity. 2. If by the change of the voyage, the captain or surpercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished. 3. If a part of the duties have been executed, then such a proportion of the stipulated compensation should be allowed, as appears just on comparing the services rendered, with those which remain unperformed. For the interpolated part of the voyage, the usual compensation must be paid. The parties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract for the voyage as changed, been entered into between them. To all the customary emoluments of a captain, or supercargo, on such a voyage, are those officers respectively entitled. A ship master, who was also the supercargo, was directed to proceed with his ship to several ports; his compensation, in addition to monthly wages, VOL. I-1. Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs.-1829. was a sum certain, with a privilege of bringing home a specified quantity of merchandize from one of such ports. After a part performance of the Voyage, the ship owner changed its direction, and shortened it; so that the port at which the privilege might have been exercised, was not visited by the ship; before the termination of the voyage, the ship master died. HELD that the privilege was so inseparably connected with the vessel's destination to the particular port, at which it was to have been exercised, that upon its ceasing to be one of the termini of the voyage, the privilege of necessity expired, and that the sum certain stipulated to be paid the captain had relation to the voyage as originally contemplated, and was therefore subject to abatement, in the discretion of the Jury. First, for the alteration of the voyage, if they believed, that the ship master's labour and responsibility were thereby lightened; and, secondly, for that portion of his contemplated services, which were lost by his death. The misconduct of a captain or supercargo, which produces neither injury nor inconvenience to his employer, forms no defence to the payment of his wages. The consignees selected by a ship master or supercargo in a foreign port, according to the usual course of trade, and in good faith, are so far the agents of the owners of the ship and cargo, that upon the death of the captain or supercargo, his representatives are not responsible for the consequences of the neglect or misconduct of such consignees, in the execution of their agency after his death not imputable to instructions given in the life of such captain or supercargo. A shipment of merchandize, whose exportation is prohibited, made by a supercargo for acconnt of his principal, is at his own risk, and if seized and condemned at the place of exportation, the supercargo must bear the loss. The acceptance by a ship owner of the letters and invoices sent to him by the consignees of his ship in a foreign port, is not such a ratification of the acts of those agents, as would throw a loss arising from the seizure of merchandize exported against the laws of the port of shipment by them, for his account, upon such ship owner. These were CROSS APPEALS from Baltimore County Court, from a judgment rendered in an action of Assumpsit in favour of the plaintiffs, (the appellants in the first and appellee in the second of these appeals) against the defendant (the appellee in the first and appellant in the second of these appeals.) The declaration contained two counts-One for work and labour, &c. goods, &c. sold and delivered, money lent, and for money had and received; and the other on an insimul computassent, between the defendant and the plaintiff's intestate. The defendant pleaded non assumpsit, and issue was joined. It was Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs.-1829. agreed between the parties, "that the defendant may give in evidence under his plea, any items of account which he may have in bar of the plaintiff's claim, and which he might legally set off, or give in evidence, had he filed an account in bar or given regular notice of set off"-Also, "that all errors in the pleadings be mutually released, and that each party shall be at liberty to give any special matter in evidence under the issue joined." Also, "that by the shipping articles entered into in relation to the voyage referred to in this case, John C. Pawson was to receive the sum of sixty dollars per month, as captain of the ship Chesapeake; and that the sum of $2000, also referred to in these proceedings, was a compensation agreed to be paid to him, as stated in the letter of instructions, dated the 18th of November, 1819." 1. At the trial of this cause, the plaintiffs read in evidence, by consent, the following letters of instructions: the first dated Baltimore the 18th of November, 1819, from the defendant to the plaintiffs' intestate, John C. Pawson, viz: "With my ship, Chesapeake, of which you are commander, you will proceed with all possible despatch, to the port of London. On your arrival, you will deliver my letters to John Horstman, Esq. to whom your ship and cargo are consigned. In the discharge of the cargo lose no time, and be careful to have it delivered in good order. It may be advisable, that immediately on arrival, you will engage sufficient ballast for your ship, and in every other respect provide what may be necessary to perform a long voyage. When so prepared, apply to Mr. Horstman, who will deliver you, on my account, eight thousand doubloons, which you will endeavour to ship on board without the knowledge of your crew. If they are under a belief that you have no specie, less danger may be apprehended from them; but I recommend to you never to be off your guard. With the ship, and the coin on board, you will proceed to the port of Coquimbo, in Chili, for the purpose of loading entirely with copper, and with it proceed to Canton; there dispose of it, and with the proceeds, load your ship agreeably to the list I have furnished, and return with the same |