1. Are the insurers on the vessel entitled to any part of the money, allowed by the commissioners for freight?

2. Are Geyer & Son entitled to that money, or to any

part of it?

OPINION.

1. It is my opinion, that the insurers have no claim to the money allowed for freight, as they did not insure the freight. I see no color for any claim of the insurers, unless it may be that the brigantine, cargo and freight, shall jointly contribute to the expenses incurred before the commissioners; but in this case, I know of no principle of law which will direct a gross

average.

2. It may be said on this question, that if the money be paid over to Geyer & Son, they will have the use of the brigantine, for the passage out, gratis ; and it may be replied, that if Bradford retains the money, he will receive double freight for the passage out. But as Bradford is in possession of the money, under an award in his favor, Geyer & Son must show a right to recover it from him, before they can receive it, even if Bradford has no right to receive it. The only right that Geyer & Son can set up, is that they had already paid Bradford the hire to the time of the capture. Now if Geyer & Son were obliged by law to pay that hire, and have received an equivalent for it, by the use of Bradford's brigantine for the passage out, agreeably to their contract with Bradford, I do not see how that payment can give them a right to the money awarded to Bradford. The decision therefore of this question depends, in my opinion, on the right that Bradford had to recover of Geyer & Son, the hire for the brigantine until her capture; for a payment by Geyer & Son through mistake, will not establish in Bradford a right to receive.

Now it is my opinion, that by force of this charter party, Geyer & Son were not obliged to pay Bradford the hire of the vessel, until the capture by Admiral Jarvis. The charter party contemplates but one service, and but one voyage, and the money is to be paid in thirty days after the return of the brigantine to Boston, where the voyage is to end, an event

which never happened. If the charter party had contemplated as many voyages as passages, then, by the marine law, the hire, until the first voyage was performed, and not until the capture, was due, unless the express contract of the parties had excluded the operation of the marine law in the case. I am sensible our Supreme Judicial court have decided one or two causes differently, but I believe the principle must be reconsidered. The leading cases, on this subject, were not before the court. They are, (1.) Machrell v. Simond & Hankey ; (2.) Byrne & others v. Pattinson, and (3.) Cook v. Jennings. This being however the law of England, in which country the commissioners sat, they undoubtedly supposed, that agreeably to that law, Bradford had lost his freight, as well as his vessel, they therefore award it to him, but he had already received it of Geyer & Son; they therefore have an equitable right to stand in Bradford's place, as to so much of the freight awarded, as they were not obliged by law to pay him.

If the charter party contemplates as many voyages as passages, which is not in fact my opinion, then Geyer & Son ought at most to have paid the hire, until the vessel had discharged her outward cargo in Martinico, and for no longer time-all they paid more, is clearly money paid by mistake, which ought to be refunded to them. This is the rule of the marine law, and the suggestion is made, on a supposition that this rule is not controled by the express contract of the parties, contained in the charter party.

And upon the whole, it is my opinion that Geyer & Son were not liable to pay any portion of the hire in an action founded on the charter party, but it is also my opinion that, as the performance of the contract created by the charter party became impossible by reason of the capture, Bradford might have waived the express contract, and in an action of the case, might have recovered for the use of his vessel, until the cargo outward was discharged. Therefore let Bradford retain such a proportion of the $1500 and interest, as the time the vessel was employed until her outward cargo was discharg

ed, bears to four and a half months; and let him pay over the residue to Geyer & Son.

This opinion is founded on the general rule, that when a contract is executed in part, but the party is prevented from executing it completely, either by the act of God or by any foreign force, that party who has derived a benefit from the partial execution, shall make a reasonable compensation for the benefit he has received.

(1.) Abbot on Shipping, 209 or 267. (2.) Same, 211 or 170.

(3.) 7 Term Rep. 381.

DIGEST OF RECENT DECISIONS.

Principal Cases in

9 DAY'S REPORTS, Connecticut.

1 GREEN'S REPORTS, New Jersey.

4 & 5 VERMONT REPORTS.

ACTION.

1. (By a State Treasurer.) The state treasurer of Connecticut cannot sus tain an action, in his own name, to recover a fine and costs imposed by a judgment of court on conviction of a crime, although, by the terms of the judgment, the fine is payable to the treasurer of the state, for the use of the state treasury. Bissell v. Spencer, 9 Day, 267.. 2. (For causing the river bank to be undermined.) A corporation was created, by the legislature of Connecticut, for the purpose of removing the obstructions to the navigation in Connecticut river, from Hartford to the Sound; it being there a public navigable river, subject to the ebbing and flowing of the tide. With an honest attention to accomplish this object, and without any design to injure any proprietor of land, the corporation erected piers and put other obstructions in the river, in a prudent and skilful manner; whereby the land of A., adjoining the Eastern bank of the river, was gradually undermined and washed away. In an action on the case, brought by A. against the corporation, for the injury which he had thus sustained, it was held, 1. that Connecticut river, being a public navigable river, prima facie and of common right, belongs to the sovereign power; 2. that the lands of individuals bounded on this river, have been granted to those individuals, or to those under whom they claim, by the state; but the state did not thereby divest itself of the right and power of improving the navigation of the river; 3. that the state, now holding the river for the purpose of navigation, may do every thing for the full enjoyment of such right, not inconsistent with the great constitutional principle that private property shall not be taken for public use, without just compensation; 4. that it is the duty of the individual proprietors of land adjoining the river, and not of the corpo