1804.

versus

BACKER.

So with respect to the wines, they also were taken by the captors without any fault on the part of the plaintiff. MULLOY In Cooke v. Jennings, LAWRENCE, J. says, perhaps the subsequent receipt of the goods might have been evidence of a new contract. It is not necessary in this case to go at length into the principles of universal law as laid down by Lord Mansfield in Luke v. Lyde; but if it is to be said that the plaintiff cannot recover because the ship itself has not yet been restored, yet it is sufficient to answer that nothing unlawful has been done on the part of the plaintiff. The contract was lawful at the time of its inception, and the defendant's luggage has been restored."

GILES, contrà, made two questions;-first, the liability of the defendant to pay; and, secondly, the ability of the plaintiff to recover. The contract of the plaintiff is an entire contract to carry the defendant from Flushing to Demarara; and then, according to Cooké v. Jennings, he cannot recover."

LAWRENCE, J. "Perhaps it may be otherwise according to the Dutch law, and then Cooke v. Jennings will be no authority for you; for this is a contract to be performed in Holland made in a Dutch colony."

GILES. "Then it is for the plaintiff to make out that the law of Holland is so. In Cutter v. Powel, it was held a mariner could not, upon a contract for the voyage, recover wages for a part of the time. Where a contract has not been performed, the party cannot claiin on his express covenant; but is driven to his implied covenant. But this is said to be like freight, which is recoverable pro rata itineris. 'If so, this also, like freight, must be recoverable only on an implied contract arising out of some new benefit to be done by one party to the other."

Lord ELLEN BOROUGH, C. J. "Luke v. Lyde seems to be founded on a quantum meruit for something done VOL. III. N°. 21.

3 M

1804.

MULLOY

versus BACKER.

previously, namely, the carrying of the goods, although the whole voyage was not ultimately performed."

GILES. "I need not question the whole of the case of Luke v. Lyde, but I think I may deny the existence of the fact, in that case, out of which, upon the principles there stated, the freight pro rata itineris accrued; for the goods were not forwarded on their voyage at all. They were taken only to Biddeford, which is as far distant from Lisbon as Newfoundland, so that the party had derived no benefit at all."

Lord ELLEN BOROUGH, C.J. "The carrier had done all that he could: and it is not necessary that it should actually be a benefit to the one party if it was a loss to the other. It is, at least, not necessary that there should be a benefit and advantage moving from you, if you have bestowed your labour in order to procure it."

GILES.

"But in this case, where there is no benefit, it must stand upon the express contract. It is not necessary to argue that point now: for I go upon the principles stated in the case of Luke v. Lyde. There, when the goods were at Biddeford, the carrier had a right to carry them forward to Lisbon in another ship, and although that would not be much for his own benefit, yet, in consideration of his giving up the goods and that right to proceed, the defendant there contracted to pay, by implied assump sit, pro rata itineris."

Lord ELLEN BOROUGH, C. J. "No, the party took the goods not of the captain of the ship, but of the recaptors. The owners of the ship had then no lien on the goods."

GILES. "When goods are recaptured, the new owner of the ship is obliged to deliver them up, upon payment of the salvage by the owner; so that the captor could not give them up to the freighter without the license of

1804.

versus

BACKER.

the owner of the ship, and the argument of Lord Mansfield, in his judgmeut, proceeds on the supposition that the MULLOY owner of the ship might have carried the goods on; and whether the rate is to be computed on the labour, or on the benefit conferred, is immaterial. The case here is, that the ship is brought in as prize with the defendant and his portmanteau on board; the ship is libelled, the person is permitted to go at large, and his portmanteau is given up: but that is done by the lenity of the captors and of the government, and is no act of the plaintiff or the owner of the ship."

Lord ELLEN BOROUGH, C. J. "No, that is not actually so stated in the case. It does not say by whom the luggage was delivered to the defendant. It was probably by the captors, but it is not so stated."

GILES. "It is, however, stated, that the ship is libelled as prize, and the plaintiff could not have detained the defendant's person till he had paid the passage-money, as he might goods for freight. In Luke v. Lyde, and the other cases, the merchant is only held liable in consideration of the plaintiff waving some right which he has on the goods, upon the giving up of which a new implied contract arises: but that principle does not apply here. Here the party has given up nothing, and we have not received any benefit from him, for we are brought in prisoner, and what we have recovered of our property is received from another person, and I cannot see what right A. can have to claim of B. a quantum meruit for that which was done by C. Secondly, what right has the plaintiff to sue? He is a captain of a ship now libelled in the court of admiralty. If the ship is condemned he cannot claim either the freight or the goods: both must go to the captors. If there is any claim to the goods, it must be in the captors. There is no pretence for the plaintiff's claiming such a right. If he recovers in this action, the ship may notwithstanding be afterwards condemned, and the judge

1804.

MULLOY

versus

BACKER.

of the court of admiralty may order the freight to be paid to the captors, he, the judge having the complete control over that subject. Then the plaintiff is at least premature in bringing his action until the right is deter mined. In general, indeed, the practice is that they do not order the freight to be paid to the captors."

Lord ELLENBOROUGH, C. J. "Have you any case in which the court of admiralty has compelled the captain of a foreign vessel to pay over the freight to be received pro ratâ itineris."

LAWRENCE, J. "The foreign writers on freight consider money to be paid for passage just the same as freight. Roccus de Naulo inquires whether freight is due for a passenger iu particular cases, and puts a question, whether, if a woman be brought to bed, freight is to be paid for the infant?"

Lord ELLEN BOROUGH, C. J. "I agree with you, however, that I do not see any difference between freight and passage-money. It is the same thing, whether it be for the carrying of live things or dead. The circumstance of the lien may probably make the only difference."

GILES then shortly recapitulated his argument, and concluded that the present plaintiff was not entitled to recover any thing for freight at all, and that if entitled to any thing, it was only for the luggage.

RICHARDSON, in reply. "The grounds upon which it is admitted that a new contract may arise, have been too much narrowed by the defendant's counsel. Here has been labour and loss on the part of the plaintiff, which is sufficient to entitle him to his quantum meruit although it turns out unproductive of benefit to the defendant. It has been insisted that the liberation of the defendant's person, family, and luggage was not the act of the plaintiff but the hand from which it comes is in no

:

wise material. This liberation must take place in order to entitle us to recover; but the service done, and for which the quantum meruit is claimed, is not the liberation of the defendant, but the carrying him and his goods."

Lord ELLENBOROUGH, C. J. "This case is materially distinguishable from the case of Luke v. Lyde, for in that case there was an actual acceptance of the goods, and an acquiescence in the new contract."

RICHARDSON. "As far as the circumstances here can be assimilated, I submit that they are still similar. Here has been an acceptance on the part of the defendant. The right of the master to insist on getting another ship to carry the party forward on his voyage still exists. The consideration is not a mere lien, but a right of doing something which the owner gives up."

you

LE BLANC, J. "Does not the case state that were disabled from doing that which you say you gave up? It states that you were a prisoner of war."

RICHARDSON. "To make that a defence, there should have been a request on the part of the defendant, and a refusal on ours. In the case of Luke v. Lyde, there was the same disability, the ship was not in the hands of the party. Here, at least, the labour was performed."

Lord ELLENBOROUGH, C. J." So it would have been if the ship had been lost at sea with both the captain and the passenger. But, could the executors of the captain, or the owners of the ship, have recovered against the executors of the passenger ?"

RICHARDSON. "Here, however, there is no loss; and in case there had been a loss, and part of the goods had come on shore, the passenger would have been liable on a quantum meruit."

1804. MULLOY

- versus

BACKER.