The Solicitor General shewed cause, and was to have been followed by Dunning, and Davenport, but Lord MANSFIELD stopped them.-Lee, and Baldwin, for the plaintiff.

Lord MANSFIELD,-The great object in every branch of the law, but especially in mercantile law, is certainty, and that the grounds of decision should be precisely known. I took great pains in delivering the opinion of the court in the cases of Goss v. Withers (t), and Hamilton v. Mendes (u). 1 read both those cases over last night, and I think that from them, the whole law between insurers and insured as to the consequences of capture and recapture may be collected. Whenever a question of law arises at nisi prius, I propose a case, or grant one when asked for by the counsel, and I avoid as much as possible blending fact and law together, having seen the inconvenience of it in Poole v. Fitzgerald (v). But, on the trial of this cause, it did not appear to me, that there was any question of law, and no case was asked for. It was impossible to ask for one, till the facts were ascertained, and, when they were, it would have been impossible to state them in any way which could have left a doubt on the law. It was not contended, that a capture necessarily amounts to a total loss as between insurer and insured; nor, on the other hand, that on a capture and recapture, there may not be a total loss, though there remain some material tangible part of the ship and cargo. Neither was it contended, that the captain has an arbitrary power by his act, to make the loss either partial or total, as he pleases. A great deal has been said about what the Admiralty could or would have done in such a case, in order to pay the salvage. As to that, if no owner appeared, they would condemn the whole; but if they saw from the ship's papers, that there was one, they would not. If there were different claimants of the ship and cargo, they would leave it to them to say what part should be sold, and, if they differed in opinion, would order the sale of such part as would be attended with the smallest loss. But all that is foreign to the present question, which is singly this, whether the consequences of the capture were such as, notwithstanding the recapture, occasioned a total obstruction of the voyage, or only a partial stoppage, as in the case of Hamilton v. Mendes. In that case, and in Goss v. Withers, great stress was laid on the situation of the ship and cargo, at the time when the insured had notice, at the time of the offer to abandon, and at the time of the action brought. No cases say, that the bare existence of the hulk of the ship prevents the loss

(A M. 32 Geo. 2. 2 Burr. 683. (u) T. 1 Geo. 3. 2 Burr. 1198. since reported, 1 Blackst.276.

being

1779.

MILLES

against FLETCHER.

[233]

(v) E. 23 Geo. 2. cited in Goss v. Withers.

1779.

MILLES against FLETCHER.

[234]

being total. In Hamilton v. Mendes it is laid down [F1], that" if the voyage is lost, or not worth pursuing, if the "salvage is high, if further expence is necessary, if the insurer will not at all events undertake to pay that expence, "&c. the insured may abandon, notwithstanding a recapture." Here, at the time of the capture, there were no hopes of a recovery; no friend's ship in sight; no means of resistance; all the crew was taken out, and part of the cargo; and the rigging also taken away. Afterwards the ship was retaken, and brought into New-York. When she was brought there, it still continued a total loss. Neither the insured, nor the insurers, had any agent in the place. The court of Admiralty must have proceeded secundum æquum & bonum, and might have sold her for the benefit of those concerned. When the insured first had notice, and offered to abandon (which was when the captain came to England), and when the action was brought, it was still a total loss. The voyage was abandoned, the cargo sold, and the ship left to be sold. The only answer the defendant makes, or can make to this is, that the loss was total indeed, but that the captain made it so by his improper conduct, for that on his taking possession of the ship the loss became partial, and that he ought to have pursued the voyage. But is this defence true in fact? The captain, when he came to New-York, had no express order, but he had an implied authority from both sides, to do what was right and fit to be done [F 2], as none of them had agents in the place; and whatever it was right for him to have done, if it had been his own ship and cargo, the under-writer must answer for the consequences of, because this is within his contract of indemnity. Suppose there had been no insurance, what ought the captain to have done? 1. As to the cargo; according to the course of the voyage, the ship should have arrived at London,

[F1] These principles were cited and confirmed by the court in Hadkinson v. Robinson, 3 B. & P. 388; but held not applicable to that case, in which the captain, learning that if he entered the port of his destination, the ship would be lost by confiscation, avoided the port, and sold the cargo; and the court were of opinion that the loss was not occasioned by a peril insured against not coming within the description of a restraint of princes.

152. this case was cited by Lawrence, [F 2] In Reid v. Darby, 10 East, J. for the point here stated. In that has no discretionary authority so sell, case it was decided that the captain decree of a vice-admiralty court for sale as against the owners, even under a of a ship reported upon a survey to be unseaworthy. The distinction between that case and the present appears to be, that here "the sale was ratified by the

66

owners, and being bona fide, was "held to bind the underwriters."

1779.

MILLES

against FLetcher,

London in July [F 3]. On the capture, part had been taken out, some was washed over-board, 57 hogsheads damaged, and the whole, from the leakiness of the vessel, in a perishable state. There were no store-houses, nor could the ship proceed in the state she was in. The crew was gone, and an embargo laid on till December. What, shall a cargo which was intended to arrive at London in July, be kept in a perishable state at New York, in a leaky vessel, till December? 2. As to the ship; it was certainly better to sell her, than bring her to London. There was no crew belonging to her, and she had no cargo. Even if all the cargo had been left, the expence of repairs would have exceeded the freight. If she had been brought home the expence of bringing her might have been more than what she would have sold for in London. It has been said, that the damage would not have fallen on the underwriters; but the argument drawn from thence is a fallacy, for that circumstance goes to determine it to be the interest of the insured to abandon the voyage. The point is, what did the owner suffer by the capture, and it appears that he suffered so much, that it was not worth while to pursue the voyage. The whole voyage was lost. As the captain did not know of the insurance, he had no temptation to give the turn of the scale to one side or the other. I left it to the jury to determine, whether what the captain had done, was for the benefit of the concerned. If they had found that it was in words, where would have been the question of [235]

law?

The rule discharged [† 68].

[68] Vide Baillie v. Modigliani, Term Rep. 187. Mitchell v. Edie, B, B. R. H. 25 Geo. 3. Cazalet v. R. H. 27 Geo. 3. 1 Term Rep. 608. St. Barbe, B. R. E. 26 Geo. 3. 1

[P3] In Park on Insurance, p. 156. the accuracy of this report is confirmed, as contra-distinguished from another report by the name of Milles . Hayley, published in Weskett on Insurance, p. 4. in which most of the

following facts as to the state of the ship and cargo are omitted; facts which the learned author observes, were very material to the decision of the

cause.

Wednesday, 23d
June.

If a sum of money is lent

upon an agreement to pay legal interest, and a premium over and above

is paid when the

money is advanced, such

premium not of

itself exceeding

FISHER, qui tam, &c. against BEASLEY.

THIS

:

HIS was an action of debt on the statute of Queen Anne (w), for taking more than at the rate of five per cent. by the year, for the loan of money. The case was this One Grindall had borrowed £100 of the defendant, for which he had given him a bond conditioned for the payment of the principal and interest, at the rate of £5 per cent. at the end of six months. He also paid two guineas to the defendant, as a premium, at the time when the money was advanced. At the end of the six months the capital was repaid, and £2 10s. for interest. The action was brought within a year after the payment of the capital and interest, but more than a year after the two guineas were paid, and the money advanced. Lord MANSFIELD, at the trial, was actually received of opinion, that the usury was complete, and the penalty incurred, when the premium was paid, and therefore nonsuited the plaintiff [15].

the legal interest,

the security is void, but the penalty is not incurred

till more than

legal interest is

[F].

On Tuesday, the 8th of June, Wood obtained a rule to shew cause, why the nonsuit should not be set aside, and a new trial granted; and, on Tuesday the 15th of June, the case was argued, by Bearcroft, and Wood, for the plaintiff, and the Solicitor General, Dunning, and Morgan, for the defendant.

For the defendant, it was contended, that the offence was committed at the time when the two guineas were re

(w) 12 Ann. st. 2. c. 16. [15] By st. 31 Eliz. c. 5. §. 5. all qui tam actions upon any statute made or

ceived,

to be made (except the statute of tillage) shall be brought within one year after the offence committed.

[F] So where there was a loan of £500 for five years, and the borrower returned £50 to the lender, after the execution of the securities, in pursuance of the usurious agreement between them, and paid £25 per annum to the end of the five years, it was held that the usury was not completed by the return of the £50, but continued on the payment of each sum of £25, being interest for that which in

fact was a loan of only £450. Scurry v. Freeman, 2 B. & P. 381.

Where the lender received a premium at the time of a loan for a year, and afterwards in the course of the year received the interest then due, at 5 per cent. it was held that the offence of usury was then complete, without waiting to the end of the year, the period for which the loan was made. Wade v. Wilson, 1 East, 195.

ceived, and that it would have been usury although neither the interest nor the capital had ever been paid. That the contract was not to pay £4. 12s. per cent. for half a year, but to give two guineas for the loan of a sum of money, for which legal interest was also to be paid. Lloyd v. Williams (x) was cited, and a case of Mallory v. Bird, mentioned in Pollard v. Scoly (y), where it is said, "That if a man con"tract to have twenty pounds for the loan of a hundred, and "take nothing, he is not punishable by the statute (z), but if "he taketh any thing, if but one shilling, this is an affirm"ance of the contract, and he shall render for the whole "contract."

BULLER, Justice, said, that the answer given by ASTON, Justice, to that case, when it had been cited on some former occcasion, was, that it meant one shilling above the legal interest.

1.

For the plaintiff, it was observed, that the case of Mallory v. Bird is only a loose note of the reporter. That there ase two distinct provisions in the statute of Queen Anne. That all bonds, contracts, and assurances for the payment of any principal, or money, to be lent, whereupon or whereby there shall be reserved or taken above 5 per cent. shall be utterly void. 2. That all persons, who shall upon any contract, take, accept, and receive for the forbearing or giving day of payment, more than at the rate of 5 per cent. per annum, shall forfeit treble the sum lent. That under the first, the offence is complete as soon as the contract is made, though nothing has been paid for the loan; but, to incur the penalty, more than the legal interest must have been actually received. That the contract here was to forbear for six months, and £2. 2s. which was all that had been taken, accepted, and received, more than a year before the bringing of the action, was less than at the rate of 5 per cent. by the year; but that, when the additional £2. 10s. was paid, then, and not till then, the offence for which the penalty is given, was committed; for that, till the payment, the law allowed the party time to repent, and to avoid incurring the penalty by relinquishing the usurious interest. They cited Brown v. Fulsbye (a), where it was held, that when for the loan of £80, a bond was given to pay £90, at the end of the year, the penalty for taking more than £10 per cent. (the legal interest at that time,) was not incurred, although the £90 had been tendered,

(x) C. B. M. 12 Geo. 3. 3 Wils. 250. since reported in 2 Blackst. 792. (y) C. B. E. 25 El. Cro. El. 20. (z) 13 Eliz. c. 8. That statute revived the statute of 37 H. S. c. 9. and VOL. I.

because,

1779.

FISHER against BEASLEY.

[236]

66

the words there are, that the penalty shall be incurred if the party have, receive, accept, or take," &c. § 3. 5. (a) C. B. T. 19 El. 4 Leon. 43.

66

S