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It is difficult to adopt any rule sufficiently certain and yet free of every exception. * - - re. In an average arifing from Jettisons, the English practice

is, to regulate the contribution by the clear price which the J.'

goods would have yielded at the port of destination, “it be

“ing equitable,” saysAbbott, “that the person whose loss has

“procured the arrival of the veffel should be placed in the

“fame situation with those whose property has reached its “port infafety”-Abbott, 262. If all the goods, as well those which arrive as those which have been cast into the fea, are to be estimated at their foreign value, the refult will be nearly the fame, provided there be an equal advance on all, as if the first cost be reforted to as the fiandard of their worth. I

cannot, therefore, perceive much force in the reason affigned by the learned author in favor of this mode. With regard to veflel and freight, various regulations have been established by different states as to the degree in which they shall beliable to contribute, which only shew how impoffible it is to find any rule that shall operate univerfally and with equal justice on the different perfons concerned. In England, Marfhal, following Molloy, and speaking of Jettifons, fays, the fhip contributes for her full value at her port of delivery, and the freight pays according to its value at the same place, after dedućting seamen's wages and certain other chargesMarshal, 467. I cannot fubfcribe to the equity of this mode of adjustment, as it relates to the veffel and freight. Pothier, in his treatise on maritime contracts, also exclaims against it—“As the freight,”fays he, “is only due to the owner of “a veffel, as a kind of indemnity for her deterioration and ex“penses incurred by the voyage,it is fubjecting him to adou“ble burthen to make him contribute for the entire value of “the veffel and of the freight. Our ordinance, therefore,”fays he, “has adopted the middle course of making him contri“bute for one half of the value of each”—2vol. n. 119. p. 411. OtherStates make the veffel contribute for half her value and one-third of her freight-Marsh. 467. As the rule is not accurately defined by the law of England, and the one adduced applies to cafes of Jettifon only, we are at liberty to

make one for ourselves. The injustice of making the ship

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v. Robert Dale,

ALBANY, and freight contribute for their full value has already been

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x -- ~ stated. The first will be injured by the voyage, and oftenL**** times the whole freight received will not be equal to the exJohn Dilatild. penses and disbursements to which the owner has been ex

The fam: w. Robert Dale.

posed. Valuing the property at the port of discharge, is 40 liable to difficulty and embarraffment. In many cases of a contribution, the veffel may not reach her port, which would have been the cafe here if she had been condemned; and if £he does, the veffel is very rarely sold there, and some calcultion must always be neceffary, to exhibit what are the net fales of the cargo. It will, therefore, be a rule less liable to cbjection, will fuit the greatest number of tales, and not be affected by the fluctuations of markets or other contingen

cies, and certainly most easy of practice, always to value the

goods at the invoice price, that is, at their first colt without regard to their price abroad. What value to put on the wiel and freight, to do complete justice, is more difficult, perhaps impracticable. To take their full worth will not do. After the best reflection I have been able to bestow on thefted, I am for valuing the veffel at four-fifths of her origi', reckoning nothing for provisions or wages paid in advante; and the freight at one half of the gross sum agreed to be paid This rule may be deemed arbitrary; so will any that can" devised; and yet, perhaps, it will come as near asanjodata producing a contribution in proportion to the realite" cf each which may be in jeopardy. It is seldom a vedevil" for more, after a voyage, than four-fifths of what he cult, and, of course, the owner is not more than that a gainer by her being released: so neither will his freight clearwin more, if as much, as one half which is contracted tole?" The fame course of adjustment must be pursued betw" underwriters. Upon the whole, therefore, our judgment is, tat" mariners' wages and provisions, from the time of the Sophia's capture to the day of her leaving Ramsgate, (t" appearing that she remained there unnecefarily after heri. eration) be added to the other expenses of reclaiming th: property; and that this aggregate fumbe paid by the £ underwriters on the veffel, cargo and freight. That inaceti

ing the proportion or amount of their refpective contribu- A BANY, - - - Feb 1804. tions, the cargo must be valued at its first cost and charges at the port of departure; the veffel at four-fifths of her ac- V. tual value, at the fame place, exclusive of out-fits, and with- ifiac Clafon. out regard to any valuation in the policy; and the freight TT at one half of what was agreed to be paid at Havre. That the underwriters on freight pay eight-ninths of the fum which, on this calculation, fball fall on the freight; and those on the ship, the whole of the contribution which shall belong to her, and also, one-ninth of that which is to be borne by the freight; and those on the cargo, the refidue.

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Robert Lyle against Isaac Clason.

THIS was an action on the cafe for writing and publish-, sending a : 1ibel fealed libellous 1ng a libel. letter to the

- - plaintiff himself The first count of the declaration after alleging that the # not a ground

defendant “wrote and published, or caused to be written £ #, - lm, * “and published,” a certain libel, proceeded thus, “which £ - - * e prefitned to “fame libel in the form and manner of a letter fubscribed £

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“fully, falsely and maliciously ent and caused to be rent by £, “ the fid Haac Clason to the faid Robert Lyle at, &c, and £wn. “ the same was by means of fitch fending thereof received and Stating it to “read by the aid Robert Lyle, and thereby published by the £

being sent to,

st faid Ifaac Clafon.” and received Judgment having gone by default, the plaintiff fued out # #:

and executed a writ of inquiry, on which the jury gave ge- thewing on the record itself, no

meral damages. publication, is For this reafon the defendant now moved in arrest of #" judgment. judgilicut. Hopkins for the defendant. The first count hews no cause of aćtion. The introductory, is to be connected with the latter part, and then the allegation of having wrote “and published,” &c. is fo explained as to shew there was not any writing and publishing in legal contemplation. The manner in which the injury complained of, was perpetrated is always tated, to have been in the hearing, or fome other fpecific mode of communicating the libel and of making it known. Raft. Ent, 13, Went. Plead, titles, Siar

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£5 *Y. der, and Libels. 1 Com, Di tit.2aion upon the case (G.
= 4. Cro. Eliz.486. Cro. Jac.394 scraigs: Thétis
*** ** all turn on the general Principle, that the git of the dim
is: Caton must be stated in exprji terms, for general will mt do.
In adault and battery, profecutions for conspiracy, &c.the
fame rule holds. The present action is for damages to com:
£” pensate for an injury fustained in the opinion of others. If
#:" X ": others knew not of the libel, no injury could have been ful.
#: ": tained. Hicks' case Hob. 215. Poph. 139.S. C. Barrow v.
£. Lewellin Hob. 62. Edwards and Wooten 12. Rep. 35.
: £ Harison and Hamilton contra. The fecond count flats
£". : that the letter was sent to France open. A publication may
£he judg- therefore be presumed, especially, as by suffering the judg-
Initfit.
ment to go by default, and an enquiry to be executed, the
defendant has acknowledged a cause of action. On this re-
fon the latter part even of the first count may be rejeded as
furplusage, and the first allegation of publishing held to be
confeffed. It is allowed that by the English law a trid
would have cured the objection, a question, howevermal
be made, whether the distinction between verdidsmid-
faults, established by the English code is known to our #.
risprudence. Our act of amendments and jeofailseriends"
judgments by confeffion, nil dicit and non fum inform:-
tus. Perhaps then it may be confistent with our principles"
fay that on a default the rule is the fame. It is not liw"
say the mode in which a libel is made known ought w?
pear on the declaration. That it was published is though.
So in affault and battery, that he affaulted and beat, without
the addition of knives, staves, &c. is well. Saying he pub.
lished is, therefore, saying the libel was made known. Be.
fides, the fuit itself shews it has been communicated The
exprefing in the count that it was made known too"
• In that £ is fuperfluous. Bell v. Stone l Bof and Pul. 331.” Atill
the letter was - - - th:
events, the fecond count states a poffible publication to

to a third per

'' £ person by whom sent, and we are entitled to a vent:

*" de novo. But it is trange to [ay the letter was not publi" when the very cafes adduced, by the counsel for the deit: ant, shew an indictment would have lain. The merew"

Iibellous words gives a right of action to the party girl

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whom it is written. On the execution of the writ of inqui- A'. ry, the plaintiff might have abandoned his first count, and ... I 504. proceeded on the fecond, this, therefore, the court may "#" now well intend to have been done. Rogers Troup in reply. It is not pretended that after judgment by default, a motion in arrest of judgment may not be made, 2 Bur. 899." If a libel, or flanderous word reach on- . comin, v. ly the ears or eyes of the person libelled or landered, no ac- £ tion lies. If a man after receiving a libellous letter, makes it £. known, he is the publisher, and volenti non fit injuria. To £ aud the authorities cited we may add 1 Mod. 58. Lake v. King. In addition to this, there is no rule better established, than that where a declaration contains good and bad counts, and a general verdict is given, the judgment must be arrested; because it is not known to which the verdict can be applied. Per curiam delivered by Kent J. I agree with the counfel for the defendant, that the first count is to be confidered, when taken together, as stating no other publication than the fending a letter fealed up from the one party to the other. A letter is always to be understood as fealed, unless otherwise exprefled, and the law is too well fettled to be now shaken, that fending a letter is no publication onf which £ife - * * in Hob. 215 to ground a private fuit. The baffs of the action is damages #oth isos, C. for the injury to character in the opinion of others. This can- £" not arise but from publication. A criminal profecution for #" fending a libellous letter is not founded on publication, but on the inducement which it produceth to a breach of the peace: The provocation is the fame in the breaft of the # This is the party libelled, whether the libel be or be not published to £. the world. The first count, therefore, does not state a £" cause of action, and the damages being general, the judg

"ment must be arrested, unless the plaintiff wishes for a writ

of inquiry de novo which he is entitled to, on payment of costs agreeable to the decifion in the case of Hopkins v. B.

* Ante 347.

John R. Livington against William Rogers.

THIS cause came before the court on three feveral mo- in affumpfit

tions, **: argument agreed hould £

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