ALBANY,

LORILLARD

being an entire voyage, out and home, there could be no apportionment of freight. It is well settled, that if the owner takes January, 1818. his goods, after the voyage is commenced, and before it is completed, he must pay freight for them pro rata. (Luke v. Lyde, 2 Burr. 882. Lutwyche v. Grey, Abbot, 298. part III. ch. 7. s. 13.)

S. Jones, jun., in reply. The bill of lading contains a positive engagement to deliver the goods to the plaintiffs, the dangers of the sea only excepted; the defendants thereby taking upon themselves all other risks. The plaintiffs, after waiting a reasonable time, had a right to say to the defendants, "Carry on the goods, agreeably to your contract, or return them to us." The defendants refused to deliver them, and made no offer to carry them on by land, or in any other way, but insisted on receiving half of the freight. If a ship becomes damaged during the voyage, the owner is allowed a reasonable time, and no longer, to make the necessary repairs, and to proceed on the voyage. Where there is no limited time expressed in the contract, it must be always understood to mean a reasonable time. The cases which have been cited, all show, that in case of accident during the voyage, the master must send on the goods by another ship, by lighters, or by land, or in the best practicable mode, in order to entitle himself to freight. (Bradhurst v. Col. Ins. Co. 9 Johns. Rep. 9.. Schieffelin v. The N. Y. Ins. Co. 9 Johns, Rep. 21. 3 Johns. Rep. 331. 10 East, 393. Park, 221.) In Gosling v. Higgins, (Campb. Rep. 451.) Lord Ellenborough was of opinion, that the seizure of the goods, by the officers of government, and that without any fault of the master, did not excuse the non-delivery of them. Wilson v. R. Ex. Ass. Co. 2 Campb. Rep. 624.

V.

PALMER.

As to pro rata freight, that is never demandable, except at a port of necessity, and is not payable, where the ship returns to her port of departure. The right to pro rata freight is wholly founded on the acceptance of the goods by the owner, at the intermediate port. The master has no *lien on the goods for such [18] freight. A lien is allowed only in favor of a person who has performed his contract.

THOMPSON, Ch. J., delivered the opinion of the Court. The claim, in this case, is founded on the non-delivery of a quantity of tobacco, shipped on board a schooner, of which the defendants were owners, to be transported from Richmond, in Virginia, to New-York, and there delivered, pursuant to a bill of lading for that purpose, signed by the master of the schooner. The vessel, with the tobacco on board, sailed on the voyage about the 26th of January, 1813, but, finding the Chesapeake blockaded by a British squadron, was unable to proceed on the voyage, and some time in March following returned to Richmond, where she remained with the tobacco on board, until the

ALBANY,

16th of September, when the agent of the plaintiff's demanded January, 1818. the tobacco, which the master of the schooner refused to deliv

LORILLARD

V.

PALMER.

[19]

er, unless he was paid half freight, which the agent refused to pay; and on the 21st of the same month of September, the schooner, in consequence of a violent storm and sudden freshet, was sunk at the wharf, and the tobacco wholly ruined and lost.

The case does not warrant the conclusion that the loss was attributable to the negligence of the master, or the want of proper care of the vessel. Here has, therefore, been a dead loss, without any real or actual fault, other than the non-delivery of the tobacco when demanded.

The only question in the case is, whether the master was bound to comply with the demand without receiving the half freight claimed. It appears, by the case, that the blockade was not known to the parties at the time the schooner sailed from Richmond; and it continued until after the loss happened. Although it may appear equitable that the owners of the vessel should receive some compensation for the care they had taken of the plaintiffs' goods, yet I know of no principle of law on which half freight could be claimed. The defendants had a right to demand either full freight, or none at all. But I think no freight could be claimed. Whenever any accident occurs to a vessel, or there is any interruption of the voyage, the ship owner has a reasonable time to repair his vessel, or wait for the removal of the obstruction, and then to carry on the cargo and earn his freight. But there must be a limitation to such delay. It would be a monstrous doctrine to allow the ship owner to retain the cargo, and perform the voyage when he pleased. No time being specified in the bill of lading for the delivery of the goods, the general rule of law applicable to the performance of all other contracts, must govern, to wit, that it must be done in a reasonable time. Although the right to freight commences on the loading of the goods, it is a defeasible right, depending on the success of the voyage; and in case no part of the iter is performed, to any beneficial purpose, no freight is earned. (3 Johns. Cas. 97.) If the ship owner is determined to have his freight, he must forward the goods. It is upon the delivery of the cargo that the right to freight depends, unless such delivery is waived, or some new contract is made respecting it. If the ship owner will not, or cannot, carry on the cargo, the freighter is entitled to receive his goods again without paying any freight. (Hunter v. Prinsep, 10 East, 393.) Any other rule would be hard and unjust upon the merchant. (9 Johns. Rep. 20.)

The question, in all cases of this kind, must depend, in a great measure, upon the particular circumstances of each case, according to the nature and cause, as well as the length, of the delay. In the case before us, the plaintiff had waited a reasonable time for the goods to be carried on. Nearly nine months had elapsed from the time of shipment, and the tobacco was

But

V.

PALMER.

wanted by the plaintiffs to be sent on in some other way. If ALBANY, the defendants were bent upon receiving their freight, they January, 1818. should have transported the goods in some way or other. If LORILLARD not by water, they should have sent them on by land, which might have been done, though at a much greater expense. as the freight to be paid was a war freight, it might, perhaps, have warranted such transportation. The blockade of the Chesapeake was not such a temporary obstruction as that it could reasonably be calculated that it would be removed in a short time. From the length of time it had already continued, and the local importance of the place, no doubt could be entertained but that it was intended as a permanent measure of hostility, to be continued as long as the war lasted, if in the power of the *enemy to maintain it. There was, therefore, no reasonable prospect of the goods being carried on by water. It would be extremely unjust, if the merchant could not again obtain his goods, either to sell, or send them on in some other way, without being charged with the freight, when no part of the voyage had been performed. The ship owners would not have been bound to keep their vessel with the cargo on board until the blockade was removed. They must have had a right, after a reasonable time, to re-deliver the cargo, and discharge themselves from the bill of lading. There would be no reciprocity, unless the merchant might, within a reasonable time, demand his goods, when all prospect of sending them on had failed.

This is not like an embargo, or some temporary obstruction to the performance of the voyage, which might furnish an excuse for the delay, without putting an end to the contract. The effect of the blockade upon the bill of lading is very much the same as upon a charter-party. It is well settled, that, by the blockade of the port of discharge, a charter-party is dissolved, and all claim to freight under it is gone. Scott v. Libby and others (2 Johns. Rep. 336.) is a very strong case on the point. The vessel was chartered on a voyage from New-York to the city of St. Domingo, and back to New-York. On arriving in sight of St. Domingo, she was turned away, on account of the port being blockaded. On her return to New-York, the owners of the vessel refused to deliver the cargo until the freight was paid. But in an action of trover for the goods, it was held that no freight was due; that there could be no pro rata freight, because the goods were brought back to the port of lading, and no benefit accrued to the owner. So, in the case before us, the goods were brought back to the port of lading, and no benefit had accrued to the plaintiffs, and the compensation claimed must have been in the nature of a pro rata freight.

Suppose, in this case, the tobacco had not been lost, and an action of trover had been brought by the owner, it would have been very analogous to that of Scott v. Libby. If an action of trover could have been sustained without paying the freight, it must follow, as matter of course, that the defendants are respon

[* 20 ]

DOLF

V.

ALBANY, sible for the loss; because they were in *default in not deliverJanuary, 1818. ing the tobacco when demanded. We are, upon the whole, of opinion, that, under the circumstances of this case, the plaintiffs had waited a reasonable time for the defendants to send on the goods and earn their freight; and being in default, by not delivering the tobacco when demanded, they must be responsible for the subsequent loss. The plaintiffs must, accordingly, have judgment upon the verdict of the jury.

BASSET.

Judgment for the plaintiffs.

Where

and B.

A.

chased a piece

DOLF, Widow, against BASSET.

THIS was an action of dower, for the recovery of dower in pure certain lands in the town of Chatham, in Columbia county. The of land, and cause was tried before Mr. J. Van Ness, at the Columbia circuit, them, in September, 1816.

divided it be

tween

and A., being in

the exclusive

veyance, it was

might be prima

Simon Dolf, a witness on the part of the demandant, testified occupation of that he was acquainted with the farm formerly in the possession his part, sold it of Jonathan Dolf, the husband of the demandant, which conto D., but both 1. and B. join- tained 150 acres, besides the part that Dolf afterwards got of ed in the con- Stephen Hare; that Jonathan Dolf formerly lived on the farm, held that, al- and that the tenant came into possession, about 20 or 22 years though the deed before the trial, under J. Dolf, claiming it by purchase from from A. and B. him. The witness further stated, that J. Dolf and his brother facie evidence Charles Dolf purchased the farm together, and then divided it, that they were a division fence being put up, and each occupying his part mon of the part separately, and that the tenant had got J. Dolf's part; that the conveyed, yet deed was given to C. Dolf, and the witness did not know that tion of the land J. Dolf ever took a deed for his part; but when he sold to the by A., and the defendant's pur- tenant, the deed was executed by both Charles and Jonathan. chasing it of him The demandant produced the record of the deed from J. and exclusively, were evidence C. Dolf, to the father of the tenant, dated May 8th, 1792, for the consideration *of 1000 dollars, which deed also included part of 4.'s seisin of of Hare's land, and contained full covenants.

tenants in com

that the occupa

[ * 22 ]

to entitle A's

of his part of the

the whole, so as The tenant offered to prove, that he had erected, and made widow to dower on the premises, valuable buildings and improvements, which cut of the whole testimony was objected to by the demandant's counsel, and reland originally jected by the judge. The counsel for the tenant then contended, purchased by that the demandant was entitled to recover her dower in the moiety not merely in a of the farm only, and not in the whole farm; that the deed moiety of that

A. and B., and

part. (a)

Dower of land aliened by the husband in his lifetime is to be assigned according to the value of the land at the time of alienation, and such value may be ascertained, either, (1.) By the jury on the trial of the issue in the action of dower; or, (2.) By the sheriff on the writ of seisin; or, (3.) By a writ of inquiry founded on proper suggestions. (b)

(a) Vide M Clung v. Ross, 5 Wheat. 116.

(b) Vide Coates v. Cheever, 1 Cowen, 460.

ALBANY,

DOLF

from J. and C. Dolf, with full covenants, was evidence of seisin in J. of a moiety only, and that the demandant was estopped January, 1818. by the deed from claiming dower in more than a moiety. The judge charged the jury that the demandant was entitled to recover her dower in the whole farm; and the jury found a verdict for the demandant generally, and that J. Dolf aliened the premises on the 8th of May, 1792.

The tenant moved for a new trial, and the cause was submitted to the Court without argument.

Per Curiam. This case is very obscurely drawn, and it is a little difficult to ascertain the facts necessary to decide one of the points which appears to have been made upon the trial, to wit, in what part of the farm the demandant had a right to recover dower. The better conclusion from the case is, that what is meant by the whole farm is the 150 acres purchased by Jonathan Dolf, the late husband of the demandant, and his brother Charles; and that the defendant is in possession only of one half of that farm, being the moiety which, on a division between Charles and Jonathan, fell to the latter; and the only difficulty that appears to be created is, that when Jonathan conveyed his part to the defendant, Charles also joined with him in the deed; from which circumstance it is contended, on the part of the defendant, that Charles and Jonathan are to be deemed tenants in common of the land so conveyed to the defendant, and the widow only entitled to dower in the moiety belonging to Jonathan. If this be the correct construction of the case, there can be little doubt that the demandant is entitled to dower in the whole of the 75 acres which it is supposed the deed contains. This deed might be prima facie *evidence that Charles and Jonathan held as tenants in common; but the proof is abundant to show that such was not the fact, but that Jonathan had held and enjoyed the whole, in his own right, and Charles must have been joined in the deed for greater caution. The manner in which Jonathan used and occupied the land, and the defendant's purchasing it of him exclusively, are sufficient, within the decisions of this Court, to establish a seisin in Jonathan. (1 Caines, 185. 2 Johns. Rep. 119.)

The next question presented by the case is, whether, in this action, the defendant could be admitted to show that he had made valuable improvements upon the land. This is a case where the land in which dower is claimed had been aliened by the husband in his lifetime, and, therefore, coming within the statute, which provides that dower of any lands sold by the husband shall be according to the value of the lands, exclusive of the improvements made since the sale. (1 N. R. L. 60.) It has been settled by this Court, that dower is to be taken according to the value of the land at the time of alienation. (2 Johns. Rep. 484. 11 Johns. Rep. 510.). But in what manner, and at what time, that value is to be ascertained, has not been

V.

BASSET.

[* 23]