Brown v. Delano

A. ship was chartered to go from New Bedford to Savannah, there take a cargo of timber and carry the same to England. After the cargo was laden on board, an embargo took place, and it was agreed by the agent for the hirers and the master, that she should return to Neio Bedford, and there wait the ending of the embargo. After arriving at Neio Bedford, war was declared against England, which put a stop to the voyage. In the mean time the agent had sold the cargo. The purchaser was held entitled to the cargo, paying the expense of unloading, without paying any freight; and this, notwithstanding the master had signed bills of lading promising to deliver the cargo in England.

This was an action of replevin, to which the defendants pleaded property in a stranger ; replication, property in the plaintiff, and issue thereon. This issue was tried at an adjournment of this Court for the county of Bristol, held at Taunton, in May, 1814, before the present Chief Justice. The facts proved at the trial, as reported by the judge, were as follows. On the third of February, 1812, the defendants, being owners of a certain ship, entered into a charter-party with one E Brown, as agent of the company of Brown and others, merchants of Plymouth, in England, by which charter-party the defendants were bound to send the said ship to Savannah, in Georgia, there to take in a cargo of timber and other wood, and proceed to Plymouth, or some other port in England. The ship proceeded to * Savannah, and there took in a cargo, pursuant to the [* 371 charter-party ; which cargo was purchased for and in behalf of the said house in England, by the said E. Brown, their agent. After the ship was loaded, and before she could go to sea, the act of the United States laying an embargo had passed, and, on the 15th of April, 1812, notice of it reached Savannah ; which prevented the ship from sailing. An agreement in writing was then made, by the said E. Brown and the master of the ship, that the ship should be carried to New Bedford, there to remain until the embargo should cease. Before this, the master of the ship had signed bills of lading in the usual form, one of which had been sent by the said agent to the house in England. After the ship arrived at New Bed-ford, war was declared between the United States and Great Britain. The said E. Brown testified, that his principals in England had, by letter, authorized him to dispose of the cargo in America, on account of the war, and that, in pursuance of said authority, he sold the same to the plaintiff for a valuable and sufficient consideration, of which he gave immediate notice to the defendants. After the purchase, the plaintiff came on to New Bedford and claimed the cargo, and tendered to the said Delano the sum of $ 220, for the expenses of unlading the cargo, dockage, &c. But the defendants refused to deliver the cargo, alleging that they ought to be paid their freight, at least from Savannah to New Bedford, and that they had a right to retain the property until the bill of lading, which had been sent on to England, was returned or cancelled. The defendants also offered evidénce to show that the plaintiff, as owner, had derived an advantage from the removal of the timber from Savannah to New Bedford, which was rejected ; and the jury were instructed, if they believed that the sum tendered was sufficient to indemnify the defendants for unlading the cargo, and for the charge of dockage, &c., to find a verdict for the plaintiff, which they did. The defendants moved for a new trial, because E. Brown was admitted as a witness, and because the jury were misdirected in matter of law.