1804. The KING againft The uhabi tants of PUCKLE CHURCH. the mafter acceded to without any queft on; a circumstance which was foarcely probable to have happened if the parties had confidered that they had contracted for a year. These circumftances therefore rebut any implication of law, that this was a yearly hiring. Lord ELLENBOROUGH C. J. then added, that he hoped it would be understood in future, that where nothing was faid in the contract about time, but a refervation of weekly wages, it was only a weekly hiring. Order of Seffions quafhed. Monday, Where a writ Sheriff need not return it till the first day of the enfuing term, The KING against the Sheriff of BERKS. THE fheriff was ruled on Saturday the 12th of May last, two days before the end of Eafter term, to return a writ of fieri facias; but no return was made till the first day of this term; on which day an attachment was obtained against him for not returning it. Gibbs thereupon moved to fet afide the attachment, on the ground that the rule having expired in the vacation, the fheriff had until the first day of this term to return it, and was not bound to make his return within the fix days given him by the rule. Garrow and T. Carr relied on the rule of * 387] Court, Mich. 32 Geo. 3. (a), to fhew that the fheriff ought to have returned the writ within the fix days; which rule directs that all writs fhall be returned by the fheriff on the day on which the rule for returning the fame expires. and has the whole of that day to file it, The Court, however, on inspection of the rule, were of opinion that it could only apply to writs returnable in term; becaufe it fays, at the conclufion of it, that "in default thereof the plaintiff fhall be at liberty to move for an attachment on "the next day," which can only be moved in term time. The Mafter afterwards put into the hands of the Court an anonymous cafe in Tr. 30 Geo. 3. taken by the late Mafter Benton, which was read as follows: Where a rule to return a writ is ferved only three days be (a) 4 Term Rep. 496. sc fore "fore the end of a return, the sheriff has until the first day of "the next term and all that day to file the return." Per Curiam, Rule abfolute for setting aside (a) Upon inquiry it appears that many fuch writs are filed in vacation with the Cuftos Brevium. But the fheriff of London and Middiefex in particular feldom returns them until the first day of the following term. 1804. The KING against The Sheriff of BERKS. M'CARTHY, CORNER, and HENDERSON, against ABEL. [ 388 ] Tuesday, June 19th. THIS HIS was an action on a policy of infurance on freight of Upon a hofthe fhip Thomas, upon a voyage at and from Riga to tile embargo Chatham, London, Portsmouth, or Plymouth. At the trial be- in a foreign fore Lord Ellenborough C. J. at the fittings at Guildhall after last Trinity term a verdict was found for the plaintiffs for 2001., fubject to the opinion of the Court on the following cafe. port the owner, who had feparately infured ship and freight. aban doned them to the refpective under writers, which was On the 19th of November 1800 the defendant underwrote the policy to the plaintiffs for 200l. at 10 guineas per cent. premium, and at the time of the lofs occafioned by the embargo in the declaration and after mentioned, the plaintiffs were interested in the freight of the fhip on the voyage beyond the accepted by amount insured. The plaintiffs, being owners of the fhip which the them; after Thomas, chartered her on the 9th of September 1800 to Meffrs. embargo was Thorntons and Smalley of London, merchants, to proceed from taken off, and London to Riga, there to load from the factors of Meffrs. Thorn. the fhip completed her tons and Smalley a cargo of mafts, &c. with which he was to voyage and return to the river Thames, Chatham, Portsmouth, or Plymouth, earned as might be ordered at Riga; and freight was to be paid ac- freight: held cordingly, in certain proportions for the feveral articles named fured could (restraints of princes and rulers during the faid voyage ex- not recover cepted). Half of the freight was to be paid on delivery of the as for a total cargo, and the remainder in three months following. Fifty-five running days were allowed for loading at Riga, and delivering freight hav at her port of discharge, and ten days on demurrage, over and ing been in fact earned; or fuppofing it to have been in any other fenfe loft to the affured by the abandonment of the ship to the underwriters thereon, it was fo loft, not by any peril insured against, but by the voluntary act of the assured in making such abandonment. above that the af lofs of freight, the 1804. M'CARTHY and thers against ABEL. * above the faid laying days, at 5%. per day. The Thomas failed in ballaft from London in September 1800, in pursuance of the faid charter-party, and arrived at Riga in the October following. Oa her arrival there, fhe was fupplied by Meffts. Cumming and Co., to whom it was agreed that the captain fhould apply for the *[389] purpose, with a cargo, the whole of which had been delivered to the captain, and nearly the whole thereof had been actually taken on board, and the ship ordered to Plymouth, when on the 7th of November 1800 an embargo was laid by the Ruffian government on all British fhips then in the port of Riga. Under that embargo the Thomas was detained from the time just mentioned until May 1801; during which period the master and crew were kept as prisoners in Ruffia. Upon laying the embargo the fhip was taken poffeffion of by the Russian government, her fails were taken away, and the cargo re-landed. The plaintiffs, upon receiving intelligence thereof, on the 1th of January 1801, abandoned their intereft in the freight to the underwriters thereon, and demanded payment of a total lofs. And on the fame day (a) the plaintiffs abandoned the ship to the underwriters on ship. Upon the 30th of May 1801 the Thomas was reftored by the Ruffian government, and the mafter and crew were released, and the cargo, which had been before shipped and afterwards re-landed, was again put on board, and the ship afterwards proceeded therewith for Plymouth, where the arrived in August following. The cargo was delivered to the agents of the freighters, and the freight earned by the ship in the said voyage amounted to 2242% 6s. 1od. An indenture of three parts was made on the 26th of 【390] February 1801 between the plaintiffs of the first part, Thompson and Anderson of the second part, and the several underwriters of the third part; which after reciting (in substance) that Thompson and Anderson, and the faid other perfons parties thereto of the third part, had infured the fhip Thomas upon her faid voyage, at and from Riga to her port of discharge in England; that the fhip had been and then was detained under the faid embargo at Riga; and that the plaintiffs being fole owners of the Thomas had given, according to the law and usage of merchants, due notice of abandonment thereof, and had called upon the several (a) To a queftion by the Court in the course of the argument, to which fet of underwriters the abandonment was first made, it was anfwered that the abandonment was made to both at the same time. under. 1804. MCCARTHY and Others against ABEL. underwriters for the amount of their refpective fubfcriptions, which they had respectively agreed to pay on having the ship affigned to Thompson and Anderfon upon the trufts thereinafter mentioned; purported to be an affignment or transfer by the plaintiffs of the fhip Thomas, and all the interest, property, claim, and demand of the plaintiffs of, in, to, or out of the said ship and her appurtenances to Thompson and Anderson, upon the trufts therein mentioned. The faid indenture was executed by the plaintiff M'Carthy, (but not by the other plaintiffs,) by Thompson and Anderfon, and by the several other perfons parties thereto of the third part. In July 1801 R Corner, one of the plaintiffs, as mafter of the fhip, drew a bill at Riga for 7187. 35. 6d. upon Mr. Halliday the agent of the underwriters on the fhip. for the purpose of paying for mafts, fails, cables, repairs, and other charges on the body of the fhip: this bill was duly paid Mr. Halliday in London. And on the 30th of September 1801 captain Corner, as mafter of the fhip, received at Plymouth of the agents of the freighters 500l., part of the freight, to enable him to pay feamen's wages and the charges of delivering the cargo; and the laft mentioned fum of money was duly applied to thofe purpofes. The underwriters upon the fhip [391] claimed the freight, and the fum of 1742/. 65. 10d. the balance of fuch freight, after deducting the 500l., has been paid by the freighters of the ship to the agent for the underwriters, under an indemnity from them against any claims which might be made thereto either by the plaintiffs or by the underwriters on the freight. The agent for the underwriters on fhip gave a receipt, dated the 7th of December 1801, for the said 1742/. 65. 10d. as for freight of the faid cargo. The question for the opinion of the Court was, Whether the plaintiffs were entitled to recover? If they were, the verdict to ftand; otherwife a nonfuit to be entered. This cafe was first argued in Hilary term laft by Hullock for the plaintiffs and Giles for the defendant, and again in this term by Park for the plaintiffs and Erskine for the defendant. The Court having directed the second argument to be confined to the confideration of the effect of an abandonment of a ship upon the right to the accruing freight, it is fufficient to state the fubftance of the arguments on that point, which was recently under confideration in the cafe of Thompson v. Rowcroft (a). 1804. For the plaintiffs it was argued, that the law of England, recognizing ship and freight as two distinct objects of infurance, MCCARTHY confequently recognizes them as diftinct subjects of abandon and Others ABEL. against ment; and therefore as a fimple infurance of ship, without more, does not cover freight, so an abandonment of the former must be always underftood with an implied reservation of the latter, otherwife the underwriter on fhip would gain that for which he had confeffedly paid no equivalent. The laws of [392] France and fome other countries differ from our own in this refpect, confidering freight as a mere acceffary of and infeparably attached to the hip. 2 Valin. 58. Pothier, c. 1. f. 2. par. 36. 2 Emerigon, 221. The freight there being reckoned as part of the value of the fhip, the underwriter on fhip is in truth an underwriter on freight alfo. In this cafe, whether the act of the Ruffian government amounted to an embargo or an hoftile feizure (a), it was fufficient at the time to warrant the plaintiffs in abandoning both fhip and freight to the refpective underwriters: and if the action had been brought for a total lofs immediately after fuch abandonment there could have been no defence to it. The circumftance then of the freight having been fince earned and received cannot, as between thefe parties, deftroy the right of action which then accrued. At moft it is only fo much falvage for the benefit of the underwriters on freight which they are entitled to recover from the freighters. Infurance is always confidered as a contract of indemnity (b). The underwriter on fhip engages to indemnify the owner against the lofs of the body of the fhip by certain perils, he taking the benefit of falvage of the materials remaining, if any. The underwriter on freight engages to indemnify him from any lofs of the expected profits of the fhip derived from the carriage of goods, &c. for the particular voyage, he also taking the benefit of falvage of freight, if any be earned after an abandonment; though from the nature of the contract falvage of this fort feldom accrues, where the ship itself or the voyage is fo far endan [393] gered as to warrant an abandonment. The abandonment then to either underwriter can only be co-extenfive with the intereft which he infured: and the infurer of fhp, knowing that he did not protect the freight, must be taken to have accepted the (a) In Beale v. Thompson, 4 Faft, 545 it was confidered in the na◄ ture of an embargo, and not of a capture. (b) Gafs v. Withers, 2 Burr. 693. and Hamilton v. Mendez, ib 1210. abandon |