1804. and the imprisonment of the master and crew, on the 11th day of January, 1801, abandoned their interest in and Others the freight to the underwriters thereon, and demanded MCARTHY versus ABED. payment of a total loss on their respective subscriptions; and on the said 11th day of January, 1801, the plaintiffs abandoned the ship to the underwriters, by whom she had been insured. Upon the 30th day of May, 1801, the Thomas was restored by the Russian government, and the master and crew were released, and the cargo, which had been before shipped and afterwards relanded, as above stated, was again put on board, and the ship afterwards proceeded therewith for Plymouth, where she arrived in August following. The cargo was delivered to the agents of the freighters, and the freight earned by the ship in the said voyage amounted to 22421. 6s. 10d. An indenture of three parts was made on the 26th day of February, 1801, between Daniel McCarthy, Robert Corner, and Lawrence Henderson, (the plaintiff's) of the first part; Henry Thompson and John Anderson of the second part; and the several other persons, whose hands and seals are thereunto subscribed and set, of the third part; which, after reciting (in substance) that the said II.Thompson and John Anderson, aud the said other persons, parties thereto, of the third part, had insured the said ship Thomas, upon her said voyage at and from Riga, to her port of discharge in England; that the said ship had been and then was detained under the said embargo at Riga, and that the plaintiffs, being the sole owners of the Thomas, had given, according to the law and usage of merchants, due notice of abandonment thereof, and had called upon the said several persons, who had underwritten the same, for the. amount of their respective subscriptions, which the same several persons had respectively agreed to pay, on having the said ship assigned and transferred unto the said Henry Thompson and John Anderson, upon the trusts therein. after mentioned, purports to be an assignment or transfer by the plaintiffs of the ship Thomas, and all the interest, property, claim, and demand of the plaintiffs,of, in, to, os out of the said ship, and her appurtenances to the said Henry Thompson and John Anderson, upon the trusts therein expressed; the said indenture is executed by the plaintiff, Daniel MCarthy, by the said Henry Thompson and John Anderson and by the several other persons, parties thereto, of the third pait; but not by the plaintiffs, Robert Corner and Lawrence Anderson, or either of them. In the month of July, 1801, the plaintiff Robert Corner, as the master of the ship, drew a bill at Riga, for 7181. 2s. 6d, upon Mr. L'allidey, the agent of the underwriters on the ship, for the purpose of paying for masts, sales, cables, repairs, and other charges, on the ship; this bill was duly paid by Mr. Halliday; and on the 30th day of September, 1801, the said Captain Corner, as master of the ship, received at Plymouth, of the agents of the freighters, the sum of 5001, part of the freight, to enable him to pay seamen's wages and the charges of delivering the cargo, and the last mentioned sum of money was applied to those purposes. The underwriters of the ship claimed the freight; and the sum of 17421. 6s. 10d., the balance of such freight, after deducting the said 5001. has been paid by the freighters of the ship to the agent for the said underwriters, under an indemnity from them. against any claims which might be made thereto, either by the plaintiffs or by the underwriters on the said freight. The said agent, for the underwriters on the ship gave a receipt, dated the 7th day of December, 1801, for the said 17421. 6s. 10d. as for freight of the said cargo.-Question-whether the plaintiffs were entitled to recover? This case was ably argued in Hilary term by HULLOCK, for the plaintiffs, and GILES for the defendants; and in Easter term by PARKE for the plaintiffs, and ERSKINE, for the defendants. These arguments embraced a variety of topics, but the grounds of the opinion of the court are so clear and decisive as to render it unnecessary to recapitulate them. 1804. MCARTHY and Others versus ABEL. 1804. MCCARTHY and Others versus ABEL. - 19th of June. The opinion of the court was this day delivered to the following effect, by Lord ELLENBOROUGH, C. J. after stating the case, "The novelty of the question, the value of the property depending upon it, and the extent of the principles upon which it must turn, made the court desirous of obtaining every information upon the several points made in the case, and therefore, we wished for a second argument. Now, after considering the whole circumstances of the case, it resolves itselfinto this question, whether the freight has been lost or not? If, in fact, the freight, in this case, has not been lost, but has been fully received by the assured, then there is no loss within the meaning of the policy, and the insurers of the freight are not liable, because they made themselves auswerable merely in case the freight should be lost. Thus it would be if the assured actually received the freight himself for his own use; but if it has been actually lost to the assured, in this case, it has not been lost by any of the risks in the policy, but only by means of the abandonment of the ship by the assured himself, which is his own voluntary act, and with which the insurer on the freight has nothing to do. The plaintiff's are, therefore, not entitled to recover, quâcunque via data, whether the underwriter on the ship is entitled to receive the freight or not." NONSUIT TO BE ENTERED. GOULD Tersus GAPPER, Clerk-June 7. The defendant libelled the plaintiff for tythes in the spiritual court; the plaintiff pleaded that the place was extra-parochial; the defendant replied an inclosure act 31 Geo. III. c. 91,, and insisted that it was thereby annexed to and made part of the parish whereof he was rector; the spiritual court decreed, accordingly, the tythes to be paid to the defendant: Held, upon a declaration in prohibition, that the spiritual court, having misconstrued the statute, a prohibition might be granted in this case after sentence; it appearing that the court could no otherwise have decreed the tythes than by misconstruction of the statute.-Note, The question suggested by Buller, J. in Home v. Camden, 4 T. R. 382. 2 H. Bl. 533, whether the misconstruction of a statute is not matter of appeal and not of prohibition, after sentence, is now settled that it is matter of prohibition. THE plaintiff declared in prohibition against the defendant for prosecuting a plea in court Christian, in substance as follows: for that whereas, "the trial of bounds, borders, and limits of parishes within the realm of England, and how such bounds, borders, and limits do extend themselves, and all and singular pleas and business of and concerning the same, and of and concerning all prescriptions and customs whatsoever within this realm and the cognizance of those pleas, are and from time, &c. have been matters merely triable by the common law of England, and not in any manner by ecclesiastical courts and censures." "And whereas, in 1799, and the two following years, and in January, 1800, the plaintiff occupied meadow and pasture and divers other land, late parcel of King's Sedgmoor, in the county of Somerset, which, by an act made in the 31st year of King Geo. III. intituled an act for draining and dividing a certain moor or tract of waste land, called King Sedgmoor, in the county of Somerset, hath been lately drained, inclosed, allotted, &c. and which said meadow, &c. so occupied by the plaintiff, until the allotting &c. of the said moor, whereof, &c. were not, nor was any part thereof, within the parish of High Ham, in the county of Somerset, or the tytheable places thereof, nor within the bounds or tytheable places of any parish whatsoever, but wholly extraparochial; and whereas in the said act there is a saving to the king's most excellent majesty, and his heirs, of all such right, &c. as his said majesty had before the passing VOL. III No. 28. 3 Y 1804. GOULD versus GAPPER. 1804. GOULD versus GAPPER. " of that act. And whereas within the parish of High Ham aforesaid, and the tytheable places thereof, there now are, and from time &c. have been certain customs, &c. (setting out a modus for meadow lands, for milch cows, and for agistment respectively), yet the defendant, rector of the parish of High Ham, meaning to aggrieve the plaintiff, &c. in the consistorial court of the archdeacon of Wells, exhibited his libel against him, alleging inter alia that in 1797, and the two following years, and the month of January aforesaid, he was rector of High Ham, that the said meadow and pasture lands, and other lands were mowed, and that the plaintiff received hay therefrom, and depastured unprofitable cows thereon, and tilled other parts; and whereas the plaintiff alleged and offered to prove the matters aforesaid; and the defendant, by way of answer, "did deny that the said parcel of land, &c.were extra-parochial, for, the proprietors of land in the several parishes thereto near adjoining of which he alleged the said parish of High Ham to be one, did, in respect of their lands, &c. claim, and from time whereof, &c. had claimed right of common of pasture on the said moor, and therefore he submitted that the said tract of pasture land lay in and was part of the said parishes, though the respective boundaries were not known; that it was not in the said act mentioned to be extra-parochial, but to be in, near, or adjoining to certain parishes; that the commissioners therein named did set out and allot the same tract to and among each and every of the said parishes, and did allot part of the said tract adjoining to the old inclosures of the parish of High Ham, unto and for the said parish, and other part to Low Ham; and that by another act of the 37 Geo. III. intituled an act for dividing, allotting, and inclosing the open or commonable lands and fields within the parish of High Ham, in the county of Somerset, &c. the said parcels of meadow land, in the occupation of the plaintiff, were allotted under and by virtue of the said act for or in respect of some or one of the rights of common, appurtenant to some or one of the said tenements, in the said parish of High |