1797. CHEETHAM and the principle there laid down, which has never been doubted fince, whether founded in reafon or not. HEATH J. I am of the fame opinion. It is of no confequence JAMES WARD. Whether the release be by operation of law, or by deed demonftrating the intent of the party. For when the obligee actually releases to one as matter of favour, that release affects both. Feb. 6th. 10 Eaft, 385. 2 Bof.& Pull. 323. A fhip bound for London after taking in her cargo, but before breaking ground was cut out of her port of lading into another port in the fame ifland, where the cargo was fold by order of the Court of Admiralty for the benefit of the ROOKE J. The general principle that if the action be once fufpended in the cafe of a fingle obligor, it is gone for ever, is not now difputed: and the cafe in the year-book shews, that if the action be gone as to one obligor where two have become bound, it is gone as to both. Now the obligee has it not in his power to elect to discharge one obligor without discharging the other. Judgment for the Defendant. CURLING and Others v. LONG and Others. ASSUMPSIT for freight claimed under the following circumftances. The Plaintiffs were owners of the fhip The Earl of Effingham, and the Defendants the confignees of nine hogsheads of fugar fhipped on board her while lying in Salt River, Jamaica, and bound for London. The goods were put on board on the in Jamaica by a French privateer, 18th of September 1795, and four feveral bills of lading were but was afterduly figned by the captain. On the 2d of December following, wards re-captured and carried having completed her lading, the ship cleared out for her voyage. On the 31ft of December, while waiting for convoy, the was cut out of the river by two French privateers, and carried out to fea, but was re-captured on the fame day by a British schooner, and carried into Port Royal. The fhip was afterwards libelled in the Admiralty Court of Jamaica, and appraised and fold under an order of that court. The proceeds of the fale, after deducting one-eighth for falvage, were remitted to the Defendants as agents for the feveral owners of goods on board. The whole of the cargo, including the goods in question, was brought to the ship in Salt River for the purpose of being loaded, and was actually put on board at the expence of the Plaintiffs as owners of the fhip according to the ufage of the Jamaica trade. This amounted to 310. The Plaintiffs alfo expended 455l. 18s. according to the fame ufage, for the provifions and wages of the crew, between the time when the fhip began to take in her loading, and the time of the capture. The Plaintiffs' demand was fhaped in freighters: held that the owners of the ship were not intitled to any part of the freight. Though by the ufage of the trade the fhip was loaded at their expence. different 1797. CURLING different ways fo as to recover a proportion of the freight either from the 1ft of * September 1795, when the goods were put on board to the ift of January 1796, when the fhip was re-captured, or from the 2d of December 1795, the day the goods were shipped, to the rft of January 1796, the day fhe was re-captured; *[ 635 ] or to recover a proportion of the fums expended by the Plaintiffs as above mentioned. The caufe was tried before Eyre Ch.J. at the Guildhall fittings after Michaelmas Term 1796, who directed a non-fuit. A rule Nifi for setting afide this non-fuit, and entering a verdict for the Plaintiffs having been obtained on a former day, Adair and Heywood Serjts. now fhewed cause and contended that no freight could be claimed, there having been no inception of the voyage, which does not commence from the loading but from the time of breaking ground; that although no express case was to be found upon this fubject, yet that several paffages in Molloy afforded a strong implication in support of this pofition, as Lib 2. c. 4. S. 3. By the law marine chance or fome other "notorious neceffity will excuse the master, but then he loseth "his freight till fuch time as he breaks ground, and till then he "fuftains the lofs of the fhip;" fof. 5. "if goods are fully "loaded aboard, and the ship hath broke ground, the merchant 66 on confideration afterwards refolves not on the adventure but "will unlade again, by the law marine the freight is due;" and in f. 6. it is faid, that if the party agree to fail with the firft wind and opportunity, "the fhip departs not with the first wind and 66 opportunity, yet afterwards breaks ground and arrives at her "port, the freight in this cafe is become due, for there is "nothing can bar the ship of her freight, but the not depar"ture." They observed that with respect to the cafe of Luke v. Lyde, 2 Bur. 882. the proportion of freight there allowed was calculated from the day of failing, and that Lord Mansfield explained "a rateable freight" to mean pro ratá itineris; and that as here there was no "iter," fo there could be no freight; that as to the ufage of the Jamaica trade, fince all the expences incurred by the Plaintiffs were to be covered by the freight, the Plaintiffs could have no demand where no freight was due. Le Blanc and Shepherd Serjts. in fupport of the rule, argued that in a contract where part of the confideration is performed, the party is intitled to a remuneration for fuch part-performance, and that in Molloy the freight only and not the loading was confidered; that the right to freight pro ratá itineris depends on the circum ftance V. LONG. ftance of the inchoate right having commenced or not, and that this circumstance depends on the inception of the contract. They refered to the cafe of Tonge v. Watts, 2 Str. 1251. where Lee Ch. J. non-fuited the Plaintiff in an action on an insurance for freight becaufe "the goods were not actually on board, fo as "to make the Plaintiff's right to freight commence," and to the obfervations of Ld. Kenyon upon that and the cafe of Montg mery and Egginton, 3 Term. Rep. 362. in the course of his judg ment in Thomfon v. Taylor, 6 Term Rep.481, 2. EYRE Ch. J. This is a cafe of the very firft impreffion; and it appears to me that the demand of the Plaintiffs is neither warranted by the marine or by the common law. The former has fettled what freight is, what fervices it includes, and also that it is divifible, which is contrary to the principles of the common law. At common law all the expences of loading are included in the freight, and if the party be not intitled to freight he can demand no fatisfaction for loading. The inception of freight is breaking ground (a). In the law of infurance, indeed, this doctrine is not holden fo ftrict, for there if the goods be fo fituated as to create a well-grounded expectation of freight being raised, it is decided that the freight is infurable, and recoverable. But that does not affect the marine law as to freight in cafes between the fhip-owners and freighters, by which this cafe must be decided. According to that law no right to freight commences till the ship has broken ground; here the ship had not broken ground, having been captured in the river. The fituation of the places where cargoes are taken in materially varies the labour, coft, and pains taken by the fhipper and mafter. In fome places there is little difficulty and expence, in others a great deal. On these circumftances, depends the price of freight; if the mafter incurs this coft and trouble he takes a larger freight, if the shipper, a smaller. In either cafe the freight is his reward. If therefore by the marine law he be intitled to no freight, he can claim no remuneration. So ftands the cafe by the marine law. Let us now view it upon the principles of the common law. The contract was to load thefe goods on board and bring them to England for a certain price. Upon this contract, how could a declaration be framed for the Plaintiffs' demand either (a) Though "breaking ground" be the ufual inception of freight, yet an exception to this general rule has been ftated by a writer of fome authority; "In cafe a fhip is freighted out, and in confequence "of the agreement, receives her lading « aboard, if a embargo happens after "wards, and her cargo is taken as forfeited, 66 yet the owners fhall notwithstanding re "ceive the freight, as the fault was not in "them, but in him whofe property the "goods were." Beares Lex. Merc.87. and with this agrees the civil law. Dig. Lib. 19. tit. 2. 6.61, in affumpfit (a), or in an action on a charter party (b)? Could the Plaintiffs ftate a part-performance of the contract and infift on payment for it? This could not be done, for by the law of England the contract is intire and indivifible. By the marine law, indeed, parties may recover pro ratá, if the voyage be interrupted. And by the common law where a contract cannot be performed fuch a meritorious confideration may arife as will fometimes intitle a party to recover in the form of an action of affumpfit for work and labour even after the contract has been broken (c). Such is the cafe where a fhip after capture and re-capture completes her voyage; for there the fhipper has his goods with the advantage of carriage, and upon that, though the original contract be gone, a meritorious confideration arifes which intitles the mafter to a recompence; not, however, on the foot of the old contract, but on a new contract which springs out of it. Here the ship never arrived at the port of destination, but put into a port in Jamaica, without having conferred any benefit on the freighters by the carriage, or bettered the goods in the fmallest degree by the expences incurred. I am therefore of opinion, that neither by the marine, or the common law, are thefe Plaintiffs, however unfortunate, entitled to recover. HEATH J. This is a demand for a proportion of freight. The contract for freight is technical in its nature. By the marine law an inchoate right to freight attaches from the ship's breaking ground, and is confummated upon her arrival at the port of deftination. If the voyage be interrupted the party may claim pro ratá. Freight commences at the fame time in all parts, fince it depends on the fame principle here and at Jamaica. It is true, indeed, that by the cuftoms of different ports, duties more or less onerous, may be imposed on the master, and recompenfed by the freight. But that does not vary the principle. This cafe is only new in its circumftances. The law of infurance does not apply to this cafe: for the mere hope or expectation of interest is fufficient to intitle the affured in a policy of infurance to recover against the underwriters. (d) (a) This agrees with the doctrine laid down in Cutter v. Powell,6 Term Rep. 320. where a failor having taken a promiffory note for a certain fum from his employer on condition of performing the voyage, died before the arrival of the fhip. There the Court held, that no wages could be claimed either by virtue of the contract or upon a quantum meruit. (b) If one covenant for fuch a fum to carry goods to fuch a place, and being pre vented by the act of God from delivering (c) Said to obiter dictum. 3 Bof. and (d) To this effect fee Le Cras v. ROOKE 1.797. CURLING V. LONG. 1797. CURLING V. LONG. ROOKE J. This is a new cafe, and therefore I take the demand not to be founded on the ufage of trade. The contract in a bill of lading is for freight. The expreffion is, "they "paying freight;" and though the mafter may have been at the expence of loading, and the freight was higher on that account, yet as it had not commenced, the Plaintiffs cannot demand a recompence. The text writers all agree that freight commences from the breaking ground. This is clear and intelligible: the ship begins to earn when she begins to move; and we cannot introduce new principles. The writers also fay, that there may be cafes where the fhip-owners may be intitled to a proportion of what the ship has earned; but that cannot include what has been earned by the mafter before the commencement of the voyage. This doctrine is founded in good policy, for it tends to expedite the failing of the ship. Did the freight commence sooner, it 'might induce the mafter to ftay a longer time in port and fo delay the voyage. Infurance is a contract of indemnity; the cafes, therefore, which are founded on fuch a contract are not applicable to this cafe. Upon thefe grounds I think the non-fuit right. Rule discharged. Feb. 8th. Non damnificatus cannot be pleaded D to debt on bond, conditioned for the payment of a that the bond HOLMES and Another v. RHODES. EBT on bond; and the common counts in debt. The Defendant craved oyer of the bond, which was a joint and feveral bond of the Defendant and one T. R. for the payment fum of money at of the penal fum of 600l. to the Plaintiffs and one W. H. fince dea certain day, though it appear ceafed; and also of the condition, which was as follows: " Whereas by the condition" the above-named Plaintiffs and W.H., at the fpecial inftance "and requeft and for the only proper debt of the above-bound "defendant and T. R. in and by one bond or obligation bearing "date &c. became jointly and feverally bound together with the "faid Defendant and T. R. unto R. Wright, of &c. in the penal "fum of 6ool. with a condition there-under written that if the "faid Plaintiffs and W.H. and the Defendant and T. R. or fome "or one of them their or fome or one of their heirs executors was given by way of indemnity. or adminiftrators fhould and did well and truly pay or caufe "to be paid to R. Wright 300l. with lawful intereft for the fame " in manner following that is to fay 100l. on the 10th of Ja"nuary 1788 with lawful intereft on 300l., 100l. on the 10th "of |