fhews that he can neither recover on the contract, nor on a (a) 2 Burr. 882. the the luggage is as much prize as the bulk of the cargo. And at any rate there can be no lien on the perfon for the paffage money, but only on the luggage. All the benefit the defendant has received, which is his own and family's liberation and their luggage, was after they were brought into this country as prifoners, and from other hands than the plaintiff's. Paffage money as well as freight must follow the title to the fhip. [Lawrence J. Foreign writers confider paffage money the fame as freight. Lord Ellenborough C. J. Except for the purpose of lien it feems the fame thing.] Richardfon began to reply upon the firft point of the argument: but The Court suggested that the difficulty which preffed moft on the plaintiff was that he was at any rate premature in commencing this action, pending the proceedings in the Admiralty Court to condemn the fhip as prize, when non conftat at the time that the fhip would be restored, or that the freight might not be decreed to the captors. To this he answered, that the pendency of the fuit there, which might involve the fame question, was only matter pleadable in abatement. That by the liberation in fact of the paffengers and their luggage all right of the captors was waved, and the parties were reftored to their original relative fituation, from whence it appeared that the defendant had in fact received a certain partial benefit from the plaintiff, for which the law would raise an implied affumpfit on a quantum meruit. That it did not even appear that the defendant was an enemy or amenable to the law of prize. Lord ELLENBOROUGH, C. J. If this were the cafe of a contract to be decided only according to the law of England, without adverting to any rule drawn from the marine law, it would be the cafe of a contract undertaken but not performed, and confequently the plaintiff could not be entitled to recover his wages or hire as for a partial performance of it pro ratâ. But according to the cafe of Luke v. Lyde the marine law has been imported as it were into this fpecies of contract, and a right to recover wages or freight pro ratâ has been introduced. There it seems an implied contract was raifed, if not on the ground of beneficial fervice performed for the defendant, at least on the ground of labour performed in his fervice by the plaintiff, for which none other but he was entitled to recover. But this is a very different cafe; for here by the capture other rights. have intervened and interfere with thofe of the mafter; and pending 1804. MULLOY against BACKER, [322] 1804. MULLOY against BACKER. 323] [324] pending the difcuffion of thofe rights in a court, which has not only competent but exclufive jurifdiction over the queftion of prize, and which has power to deal with the freight as it thirks proper, this action was brought, which affumes the right to the freight to be in the plaintiff. It is enough therefore to fay that the action is at leaft premature. Pending the fuit in the Admiralty no perfon had a right to restore the paffenger's luggage, which in strictness is as much fubject to the question of prize as the ship and cargo: and the mere restoration of it de facto by an unauthorized hand cannot affect the right of the captors pending the fuit. This distinguishes the case materially from that of Luke v. Lyde: but when a cafe like that shall occur, in deference to the authority of thofe who decided it we should most likely adopt the fame rule. GROSE J. It is clear there can be no recovery on any exprefs contract stated; for there has been no performance of it. Then can we imply a contract to pay the money from any thing which is ftated? Now confidering the cafe in the light to which our attention has for fome time been confined, it is impoffible to ftate a ground for the plaintiff's recovery. For by the facts ftated it appears that the fhip is now libelled as prize in the Court of Admiralty, and for aught appears is in a courfe of condemnation and if that Court decreed that the earnings of the ship belonged to another, how could this plaintiff be entitled to recover them. The action therefore was prematurely brought. : LAWRENCE J. This action was at any rate brought too foon pending the proceedings in the Admiralty Court, where it is admitted that freight may be directed to be paid to the captors when goods are restored to the claimants: and if paffage money ftand on the fame footing, the plaintiff, whofe fhip has been taken as prize, and who in cafe of condemnation may lose all claim to freight for goods, cannot now claim a compenfation for the defendant's paffage. LE BLANC J. It is not neceffary to give any opinion upon the cafe of Luke v. Lyde; for as this cafe now ftands the plaintiff cannot at any rate recover in this action. Suppofing this were a cafe for the freight of goods only, which have been stopped in the course of their voyage and carried to another place, then by affimilating it to the cafe of Luke v. Lyde the plaintiff contends contends that he is entitled to recover pro ratâ for the freight, not on the ground of the original contract, but by reference to the marine law, on which the Courts have fhaped a courfe to recover for a benefit to the defendant which made part of the original contract. That was the footing on which the cafe of Luke v. Lyde was put; that though the mafter could not recover on the original contract which was not performed; yet that he might recover upon an implied affumpfit for a benefit already conferred on the defendant; which in that cafe was implied from the acceptance of the goods by the defendant at the port into which they were carried. But here no benefit can be implied to the defendant from the plaintiff. For the plaintiff is a prifoner of war, and incapable of performing his contract; and every thing connected with his fhip and the benefit to be derived from it is transferred to another by the capture, or at least it may be fo, which cannot be known pending the fuit in the Court of Admiralty. Therefore till reftitution be awarded I cannot conceive how any cause of action can arife to the plaintiff. If the ship had been condemned there it is clear that the plaintiff could not have recovered. It was thereupon agreed that a 1804. MULLOY against BACKER. Nonfuit fhould be entered. The KING against The LEEDS and LIVERPOOL Canal T Company. HE defendants appealed to the quarter feflions at Preston in Lancashire against a rate made in December laft for the relief of the poor of the township of Habergham Eaves in that [325 ] Wednesday, Where goods are carried along two different lines of canal, one of which is by ftatute exempted from being rated in refpect of the tolls, and the other not; though the voyage happen to finish on the unexempted line where the tolls become due and are received, yet the Canal Company fhall not be rated for more than fuch proportion of the tolls as accrued in refpect of the carriage along the unexempted line. And the toll arifing in refpect of fo much per ton per mile is to be rated only for fo many miles as the goods were carried along the unexempted line. And where the act directs that the tolls fhould be exempt from any taxes, rates, &c. other than fuch as the land which fhould be used for the purpose of the navigation would have been fubject to if the act had not been made; that goes to exempt the tolls quà tolis altogether from being rated in refpect of the line fo exempted, leaving the land rateable as before. county, 1804. The KING againft The LEEDS and LIVER POOL Canal Company. [326] county, whereby they were rated for a warehouse and land occupied with it 9s. 6d. and for the rates, tolls, and duties arising from the navigation to the faid Company within the said townfhip of Habergham Eaves, 401., being a rate made upon the fum of 1352/. 125. 4d. On hearing the appeal the Seffions confirmed the rate, subject to the opinion of this Court as to the last charge, to which the appellants confined their objections, on a case stating in fubftance, That the rate was duly allowed and published. That by stat. 10 Geo. 3. the incorporated company of proprietors of the canal navigation from Leeds to Liverpool were enabled to make a navigable canal from Leeds to Liverpool, and to take a certain fum per mile for the tonnage and wharfage of goods navigated thereon, and fo in proportion for any greater or less quantity than a ton; which rates were to be paid to such persons at such places near the canal, in fuch manner, and under fuch regulations, as the Company fhould appoint. It was alfo enacted that the faid "tolls, rates, and duties should at all times thereafter be exempt "from the payment of any taxes, rates, affeffments, or impofitions, "whatsoever, any law or ftatute to the contrary notwithstand❝ing, other than fuch taxes, rates, and affeffments as the land which "should be used for the purpose of the faid navigation would have "been subject to if this act had not been made.” By another act of the 23 Geo. 3. incorporating the faid canal navigation with the river Douglas navigation, which had been made navigable under the authority of an act passed in the 6 G. 1., and then purchased of the proprietors of the faid river navigation by the Leeds and Liverpool Canal Company, it is enacted, "that the feveral navigations, cuts, or canals, and every part thereof, and the faid tolls, rates, and duties to be taken upon "the fame, or any part thereof, under the authority of this or "either of the aforefaid acts fhould at all times be exempt from "the payment of any taxes, rates, affessments, or impofitions whatsoever, other than and except fuch taxes, rates, and assessments as the "land which had been or should be ujed for the purposes of such navigations, cuts, or canals were or would have been fubject to if <if this at had not been made: and that fuch navigations, cuts, "or canals, should not be subject or liable to the payment of "any taxes, rates, or affeffments, fave and except fuch taxes, "rates, and affeffments as had been and then were usually charged "and affeffed thereon, any law or ftatute to the contrary not |