Barker v. Cheriot, 2 Johns. 352

Barker v. Cheriot

2 Johns. 352 | N.Y. Sup. Ct. | 1807

Thompson, J.

This was one entire voyage 'from New York to Martinique, and back again; and as the vessel was captured upon her return, and did not deliver her return cargo, no. freight is due, notwithstanding the defendant may have had the benefit of the outward voyage, because, by the express agreement of the parties, the outward and homeward voyage were one, and the *356proát depended upon the entire performance. This rule is too well settled to admit of being questioned. (Abbot, 265. 269.) Here has been no acceptance of the cargo, so as to make the defendant liable for a pro rata freight.† The master ought to have waited at Antigua for the rémoval of the detention of the cargo, especially' as he Would have been entitled, on an eventual condemnation» to his freight from the captorfor the Court of Vice Admiralty admitted his lien for freight. (Pothier, Chart Partie-,'No. 100. 1 Beawes, 136.) The defendant would, therefore, be entitled to judgment; but, according to the-provision in the cas.e, we can only direct a judgment of nonsuit to-be entered.

Kent. Ch. J. was of the same opinion- SpenceR, J. not having heard the argument, gave iid opinion.

Judgment of nonsuit-

See ante. p. 336.