case; wherein the reader will suppose that it became necessary in the Downs, to cut the cable of a ship destined for Hull; that the ship afterwards struck upon the Goodwin, which compelled the master to cut away his mast, and cast overboard part of the cargo, in which operation another part was injured; and that the ship, being cleared from the sands, was forced to take refuge in Ramsgate harbour to avoid the further effects of the storm.

That is, each person will lose 10 per cent. upon the value of his interest in the cargo, ship, or freight.

Total 1,180, which is the exact amount of the losses.

Upon this calculation the owners are to lose 2801., but they are to receive from the contribution 3801. to make good their disbursements, and 1001. more for the freight of the goods thrown overboard, or 4801. minus 2801.

They therefore are actually to receive

A. is to contribute 50%, but has lost 500%; therefore A.
is to receive

£.

200

} 450

} 100

B. is to contribute 100%, but has lost 2007.; therefore B.
is to receive

On the other hand C. D. and E. have lost nothing, 20.

And are to pay as before, viz.

Total to be actually paid

50

.D.

200

SE.

which is exactly equal to the total to be actually received, and must be paid by and to each person [350] in rateable proportion to be ascertained by anoth

er calculation, with which it is unnecessary to trouble the reader.

In the above estimate of losses I have included the freight of the goods thrown overboard, which appears to be proper, as the freight of these goods is to be paid,

and their supposed value is taken clear of freight as well

article is omitted in the

as other charges, although this example proposed by Pothier (l). But I find it charged in an adjustment of general average given by Magens (m).

17. By the Civil Law the master of the ship was required to take care to have the contribution settled, and to receive the sums to be contributed, and pay them over to the losers, and might sue and be sued for them, or might retain the goods for the suns to be contributed by their proprietors (n). The same power of retaining the goods is given to the master by the French Ordinance, and even the further power of sale, under the authority of a magistrate, to the amount of the sums to be contributed (o). But Valin acquaints us, that this power is never in fact exercised in his country (p). Indeed, where contribution is to be made according to the price of the goods at the place of destination, the exer

cise of this power is incompatible with the mode [351] of adjustment. In this country, which has no

peculiar forum established for these matters, but in which the practice of insurance is very general, it is usual for the broker, who has procured the policy of insurance, to draw up an adjustment of the average, which is commonly paid in the first instance by the insurers without dispute. In case of dispute, the contribution may be recovered either by a suit in equity (q), or by an action at law (r), instituted by each individual

(1) Traite des Avaries, Num.133. (m) 1 Magens, 289.

(n) Dig. 14. 2. 2. See Wellwood, tit. 21.

(0) Liv. 3. tit. 8. Du Jet. art. 21. Tom. 2. p. 211.

(q) Shepherd & others v. Wright, Shower's Parl. Cas. 18.

(r) Marsham v. Dutrey, Select Cases of Evid. 58. Birkley & othera v. Prestgrave, 1 East. 220.

entitled to receive, against each party, that ought to pay, for the amount of his share. And in the case of a genmany consignees, it is usual delivers the goods, to take a merchants for payment of

eral ship, where they are for the master, before he bond from the different

their portions of the average when the same shall be adjusted (s).

(8) So deposed by a gentleman very conversant with this business in the case of Myer & others v.

Vander Deyl. Guildhall, Sit. before Lord Ellenborough, Ch. J. Dec. 1803.

55

CHAPTER THE NINTH.

OF STOPPAGE IN TRANSITU.

1. WHEN goods have been shipped upon credit, and the consignee has become a bankrupt, or failed, the law, in order to prevent the loss that would happen to the consignor by the delivery of them, allows [352] him, in many cases, to countermand the de

livery, and before or at their arrival at the place of destination to cause them to be delivered to himself, or to some other person for his use. This is usually called stoppage in transilu.

2. This practice was first sanctioned and established in the Court of Chancery (4), but has been since frequently recognized and carried into effect by the courts of law. It is founded on principles of natural justice and equity. But the law of England is in this respect more favorable to the transfer of property, the great sub. ject of commerce, and less attentive to the interest of the seller of goods, than the ancient Civil Law, or the modern law of many European nations, which is chiefly founded on the Civil Law. For the Civil Law did not in general consider the transfer of property to be complete by sale and delivery alone, without payment or security for the price, unless the seller agreed to give a general credit to the buyer for it; but allowed the seller to reclaim the goods out of the possession of the buyer,

(a) In the cases of Wiseman v. Vandeput, 2 Vern. 203: Snee v.

Prescot. 1 Atk. 245; and D'Aquila v. Lambert, Ambler, 399.