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since a policy upon fruits, or any other subject free from average, except general, or in case of stranding, though it may bear the name of an insurance, scarcely deserves it.

The case of Luke v. Lyde' on the subject of pro rata freight has been not less frequently cited than those of Goss v. Withers, and Hamilton v. Mendes respecting capture and recapture. This was also a case of capture and recapture, and of insurance, but the principal point is the one above mentioned. The voyage was from Newfoundland to Lisbon, and the vessel was captured and recaptured and brought into England, and it was decided that freight pro rata was due, according to the proportion of the voyage performed. But the case does not decide, what is very material, and what has since been decided in the United States, namely, how this pro rata freight is to be estimated, whether by the difference of distance from Newfoundland and England to Lisbon, or the difference of freight. The latter is now the established rule. The establishment of the principle of pro rata freight, in general, was of great importance, although its construction was not very precisely defined.

On the subject of the liability of the ship owners for supplies for their ship, which was chartered absolutely, and manned and victualled, and supplied by the charterers, came under consideration in Rich v. Coe, where the owners were held to be liable. This case was doubted by Lord Kenyon in England ; the law of the United States is quite otherwise, for reasons that seem to be sufficient.

It has now long been held that the master has no lien on the ship for his wages, though the men have such a lien. This point was decided by Lord Mansfield in Wilkins v. Carmichael, though Lord Mansfield said he was at first inclined to a contrary opinion. The same rule extends to the freight in England; in the United States the inclination of opinion seems to be, to give the master a lien on the freight for any balance due to him for his services and disbursements.

The only case we have noticed on the subject of vendor and vendee in these reports, is that of Vale v. Bayle, in which it was held, as it continues to be at the present time, that if the vendor order goods by a particular conveyance, they are at his risk on 1 2 Burr. 882.

3 Doug. 101. 2 Cowp. 636.

4 Cowp. 294.



being delivered to the carrier, unless it is otherwise agreed between the parties.

These volumes contain some dozen cases on bills of exchange and promissory notes, and these cases stand stronger than those under the titles already enumerated. More important points, in proportion, which are now good law, were settled in the time of Lord Mansfield in relation to bills of exchange, than in respect to any other title of the law merchant. It was settled that a drawer of an inland bill must have notice, if the holder intends to resort to him, as well as the drawer of a foreign bill. The resemblance of bills of exchange to promissory notes is very clearly pointed out.' It was settled that the endorsement, if not restricted, follows the nature of the bill, or is negotiable; that is to say, 'pay to A B' endorsed on a bill of exchange, imports the same as pay to A B or order.'

The credit of negotiable paper was sustained by the decisions respecting lost and forged bills, and the previous decision of Lord Holt supported. In regard to the latter, it was decided that if a forged bill is accepted, and paid by the acceptor, to a bona fide holder, he could not recover back the money from the party to whom the payment was made, on discovering that the bill was forged."

On the subject of a stolen bill of exchange, it was held that where a bill assignable by mere delivery, is stolen, it may be recovered against the parties to it by a bona fide holder for a valuable consideration, into whose hands it came from the person who stole it, on the holder's proving that he gave a valuable consideration for it, and held it bona fide.

A scruple was raised in Pillans v. Mierop respecting consideration for an agreement, or promise, by letter, to accept bills of exchange, it being objected that such an agreement was nudum pactum, and so not binding. Mr. Justice Wilmot said I own that want of consideration first occurred to me. But I am now satisfied that this case has nothing to do with the cases of undertakings of one to pay the debts of another. But Lord

| Heylyn & al. v. Adamson, 2 Burr. 669. 2 Edie v. East India Company, 2 Burr. 1222. 3 Lord. Raym. 738. 4 Price v. Neal, 1 Burr. 2351. 5 Miller v. Race, 3 Burr. 452. 6 4 Burr. 1663.


Mansfield considered the case as coming under the general proposition that the law of merchants and the law of the land were the same, and that nudum pactum does not exist in the usage and law of merchants.'

This is according to Lord Mansfield's usual manner of taking very broad ground. If it be conceded, it covers the case in discussion, and settles it most conclusively. But the difficulty is to establish the position. It had previously been decided that a declaration on a negotiable instrument need not allege a consideration. This seemed to afford sufficient ground for the decision of the case of an agreement to accept without going the length of saying that the commercial law has no regard to the consideration as affecting the validity of contracts, a position which is contradicted by the ordinary rule respecting this very species of contract by negotiable paper, where the question arises between the original parties to the instrument.

From the remarks of Burrow in his preface, the question is suggested how far his reports do justice to the judges. He says,

'I do not always take down his restrictions with which the speaker may qualify a proposition to guard against its being understood universally, or in too large a sense. And, therefore, I must caution the reader always to imply the exceptions which ought to be made when I report such propositions as falling from the judges. I watch the sense rather than the words, and therefore

often use some of

my own.

If I chance not to understand the subject, I can only attend to the words, and must in such cases be liable to mistakes. If I do not happen to know the authorities shortly alluded to, I must be at a loss to comprehend (so as to take down with accuracy and precision) the use made of them.'

'I am thoroughly aware of all those faults. I am conscious, too, that not having had the good fortune of acquiring that knowledge in the science of the law which is gotten only by a lucrative experience at the bar (from which I was early removed) and not being blessed with the quickest of natural parts, I may have mistaken and misapprehended topics and allusions ; I may have made blunders in the sense, by endeavoring to rectify those of my pen. These are imperfections which my diligence could not cure.'

1 Macleod v. Snec, Lord Raym. 1481.

This preface bears date November 29th, 1765, being the day after Michaelmas Term of that year, and the cases of that term extend nearly to the end of Burrow's third volume, so that he did not begin to publish his reports until nine years after the decisions with which they commence, were given. It appears also that the judges were not then, nor indeed have they since been, in the practice, like some of those of the United States, of writing out their opinion. The great press of business in the king's bench, during the time of Lord Mansfield and since, would render such a practice too laborious. It would have assisted us a little, therefore, in judging of the accuracy and fidelity of the reports, if Burrow had informed us how soon he usually made up his cases after the decisions were pronounced. But notwithstanding his apologies, and deprecations of censure, his reports are no doubt very accurate, and deserving of their high reputation. If they have any fault it is that of being too full and minute, in justification of which he quotes Mr. Justice Foster's Discourses on Crown Law, who says, 'Imperfect reports of facts and circumstances, especially in cases where every fact weighs something in the scale of justice, are the bane of all science that depends upon precedents and examples of former times. There is very little ground to doubt, then, that Burrow does substantial justice to the judges, and indeed his reports carry a remarkably strong internal evidence in their own favor in this respect. At least there cannot possibly be any doubt of their correctness as to the general doctrines laid down, and the general positions assumed. Burrow seems to have been entirely content with being a sedulous recorder of what transpired in the case, and not troubled with a restless interest in the questions discussed, like Douglas, who says, 'I should have felt it to be an irksome restraint, in a work consisting of near eight hundred pages, and containing such a variety of reasoning on subjects extremely diversified, and often highly interesting to a lawyer, to confine myself so rigidly to the business of reporting as never once, even at the bottom of the page, to have mentioned what might occur to myself on any of those subjects. But though Burrow was less impatient of being a neutral auditor and recorder, he was, according to his own account, and as it also appears from the reports themselves, a very careful and pains-taking reporter. And notwithstanding what he says, we are inclined to consider the language, as well as the sense, that of the judges, and not of the reporter.

The reports contain but a small part of the cases tried by jury and in bank ; the whole number, as Burrow says, being about eight hundred annually; or about twenty-five thousand for the thirty-two years during which Lord Mansfield was chief justice; and the number reported being about sixteen hundred, or one out of fifteen. The instructions to juries at nisi prius trials would undoubtedly have a great influence in disseminating and establishing whatever principles of law were adopted by the court, and these principles were substantially those of Lord Mansfield, for the judges are said to have differed but in two cases during the period of his presiding as chief justice; a circumstance from which we may infer his great influence with the rest of the court. The correctness and authority of the decisions have also been inferred from the same circumstance, but we apprehend that the former inference has much the strongest ground; for whatever may be our opinion of his ability as a judge, we cannot suppose that all the judges, who sat with him during the long period of his judicial career, would always be inclined to the right side of all questions, and therefore without a great influence and weight of authority on the part of one or the other of the judges, they would have more frequently been divided. If we take Lord Mansfield's own intimation on the subject, the accuracy of a judicial opinion is a matter of some doubt; for in a case on a wager whether a decision of the chancellor would be reversed by the lords, it being objected by the losing party that it was not a fair subject for a wager, as the law was certain, and so it must be certain which way the decision would be, and it must accordingly be certain that it would be as it proved to be in the event, he only said it was perhaps quite as probable that it might be confirmed, though in the case in question it was reversed;' and therefore the advantage, if there was any, was on the side of the defendant. He speaks of the case, however, as being on the whole just about as doubtful after the chancellor's decision, as before.

But whatever influence the jury trials and cases not reported may have had in establishing Lord Mansfield's doctrines of com

1 Jones v. Randall, Cowp. 37.

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