1805. BENTLEY versus SMITH. appears by this record; nor have they a right to come into the docks. The very first object proposed in the and Another erection of them was to secure the property from pil lage, but this right which is now claimed would expose the docks to such a continual resort as would render them equally liable to pillage, with the ordinary wharfs in London. By these acts, ships outward bound for the West Indies, may take in their cargoes either in these docks, or at any other part of the river below the canal at Blackwall.* Ships outward bound for any other part may be laden at any place whatever, including all West India property. Amongst other precautions, as to all ships which are bound to come into these docks, the hatches are to be sealed down at Gravesend; the goods are to be landed by the company's servants; they are to examine the damage done to the casks; and they are to take samples. Almost every thing which might be done formerly by the owner or persons employed by him is to be done now by the company. This operates therefore as an implied exclusion of all persons to do work on goods at the docks, but there is no express exclusion of any persons excepting the seamen, By one clause, the company may appoint labourers, and take security; but this will be of no avail if the owners are to send their own coopers It must be admitted that the construction of the claims of compensation to the company do not include the cooperage on exportation. As to the right of using the legal quays, the law did not impose upon the owners of the legal quays an obligation to permit this cooperage to be done for exportation. Cranes, indeed, are instruments necessary for lading and unlading, and therefore the owners were obliged to keep them but they are not bound to permit. this to be done there which may be done elsewhere; : 39 Geo. III. c. 69, s. 91. and if the coopers had a right or liberty of coming on the legal quays, it must have been by contract or permission, and not by strict legal right vested in them. The verdict only states that it was usual to do the cooperage on the quays. If indeed, any damage were done in the carriage to the quays, it might create a necessity of repairing and coopering the casks there. And such a necessity might also arise in case of fire on the quays; in which case the owner might have a right to go with his servants upon the quays for the securing his casks; but all such right of going there must be understood at the utmost as arising out of necessity, and as being subject to some qualification. Supposing even that, by the length of time during which the owners of the legal quays had permitted this resort to the quays, a usage would be presumed, and a right would thence be derived, yet that could not extend to the present case. It is said that a great deal of work is to be done to these casks which cannot be done at home; but that is absurd; for the more there is to be done the greater the necessity of doing it at the proper workshop of the cooper. The hardship is much less in preventing these persons from coming to do their work here, than it would be upon the other merchants, whose property would be exposed to plunder, if they were to be permitted to enter the docks. The remedy of the coopers, in case they have a right to enter the docks, is misconceived, it should be an action against the nierchants only. LAWRENCE, J. "If the merchant has a right to have his casks coopered there, docs not the contract with the merchant give him (the cooper) also a right to go, and is not the obstruction an injury to him?” Lord ELLENBOROUGH, C. J. "Is there not a general right to maintain an action for the prevention frou exercising a trade in any place where the party is not by law prevented from exercising it? It is not found 1805. BENTLEY in the verdict that this work must necessarily be done upon the wharfs. If it is not so, I agree with the SoThe coo and Another licitor General, that it may be a nuisance. versus SMITH pers claim rather too large a right; for the company do not exclude the owners from having that done which may be necessary for the safety of the goods. At the same time the verdict does not state any legal right to go on the old legal quays. I believe the legislature did not think it necessary to mention this case; it was thought that this business might be done by the company or their coopers; but if there is a doubt we ought to lean in favour of the antecedent rights. There is no stipulated price for the use of the docks upon importation or beyond the 12 days upon the exportation. In the act are the words "for delivering the same from the warehouses" what does that mean* Why not deliver out of the lighters? There is also this expression, "Such coopering as they may want after being unshipped." This the plaintiff must say applies only to the coopering upon being unshipped yet he admits too that it applies to coopering for delivery in town; and the words are large enough to apply to the coopering for exportation. Cur, adv. vult. And on this day the judgment of the Court was delivered to the following effect by Lord ELLENBOROUGH, C. J. After stating the case. This special verdict is so defectively stated that no judgment can be given thereupon for the plaintifs. The right of coopering, in this case, is claimed on a supposition that the premises of the dock company are from the moment of their being put in the place of the legal quays, subject to all the rights of entry and user which are legally claimed there in exercising the plaintiffs' trade upon those quays. But the special verdict is defective in not stating expressly the rights claimed by the plaintiffs to be exercised upon the legal quays. It states only, that they used to cooper sugars there for shipment for exportation. But this being only an actual practice of a trade, mignt, for all that appears to the contrary, have been upon the license of the owners. It is not even stated that the plaintiffs had a right to do so, or that the master had a right of sending his servants. No agreement, supposing that to be ever so clearly stated, or the owners of the legal quays can entitle the coopers to come upon these docks to exercise their business as they would have done under such agreement. It should seem also that these docks are not liable to be used by the coopers as a workshop, for work to be done to the casks which might be done elsewhere previous to their exportation. And although out of so many hogsheads some of them might of necessity require to be coopered, and that cooperage might be necessary to be done in that place, yet we cannot take that upon us as a fact, unless it is expressly so stated. JUDGMENT for the DEFENDANT. A venire de novo, being prayed for by Wood for the plaintiffs, the COURT refused it, saying, that if a plaintiff states a defective case, upon a special verdict, he is never entitled to a new trial, by a venire de no20. If he were, it would be a most convenient inode of procuring a new trial for him, but a most vexatious ne for the defendant, SHARP against GLADSTONE.-12th Nov. Upon an embargo or detention where there is an abandonment of both ship and freight to the respective insurers and the owner is paid as for a total loss, and, notwithstanding, the ship 1805. BENTLEY and Another versus SMITH. 1805. SHARP versus GLADSTONE. is released, and earns freight; the wages of the crew, the port, and other charges are quasi, a general average or salvage on the ship and freight, according to the particular nature of such charges and the persons to whom they belong; and in an action for money had and received by the underwriters on the freight against the assured who has received. it, he may deduct the same out of the sum to be recovered. CASE for the opinion of the court: Declaration in assumpsit for money had and received by the defendant to the use of the plaintiff, with the usual money counts; plea, general issue. This cause was tried at the sittings at Guildhall, after last Hilary term before Lord Ellenborough and a special jury, who found a verdict for the plaintiff, for 1001. with the further sum of 161. with interest, from the 24th day of February, 1802, to the 8th day of May, 1805, subject to the opinion of the court on the following case: The defendant as owner of the ship Jane, caused a policy to be effected thereon for a voyage from Liverpool to Petersburgh and back. He also caused another policy to be effected to the amount of 8001. on the freight from Petersburgh to Liverpool, as interest should appear, to which last policy the plaintiff was subscriber for 1001. On the 5th day of November 1800, the ship being at Cronstadt upon the voyage insured, and being a seeking ship and not a chartered ship, had taken on board a considerable part of her homeward cargo on freight, and the remainder was then loaded in lighters in its passage from Petersburgh to Cronstadt. The master had signed bills of lading for the said cargo, which was shipped by different merchants, each upon a distinct engagement for freight. The ship would have been ready to sail in six or seven days on her voyage home. On the said 5th day of November, 1800, by order of the Russian government, the ship was forcibly seized, the master and crew were compelled to quit the ship, and were marched into the |