case sir timothy LANNOY and another appellant John weary and another  respondent that march Mews dig I thirteen on point as to convoy see martial v  de la Torre Esp in what case a court of chancery will settle a difference in  damage by way of estimate without send the matter to be try by a jury order of  Lord chancellor Harcourt vary by consent this seem one of the many case which  involve only a uninteresting and private question in the respondent weary be  master of a ship call the swallow galley and the respondent Trewolla be master  of a ship call the Beak galley and the appellant who be Turkey merchant have  great quantity of good at different port in Turkey hire these two ship in  order to bring the same home to England brown er p brown for this purpose the  appellant and respondent enter into a several charterparty for each ship the  one with Trewolla be date the that and the other with weary the d of September  and by these charterparties the appellant take the say ship to fraught in  equal moieties for a voyage from Leghorn to Alexandria in Egypt and then to  Tripoli scanderoon and Cyprus all or any or either of the say port as the  appellant or their factor shall direct and at each of these port to take in  all such good as their factor shall tender to be put on board the say ship and  the factor be to dispatch the say ship at those several port in the space of  seventy day in the whole The respondent on their part covenant that as soon as  the say seventy day for load be expire they will sail direct for Gibraltar and  there tarry and remain until some convoy either British Dutch or any other in  alliance or amity with the crown of England shall then next present from  thence bind either for Lisbon or England and will sail with such convoy either  for Lisbon or London and in case such convoy shall not proceed direct for  England that then the say galley shall sail for Lisbon with the first convoy  bind thither and there tarry and remain until some convoy either British Dutch  or other in alliance or amity with her majesty shall present from thence for  England and then sail thither with such convoy and if such convoy shall not  come into the down then the respondent be to stay with their ship at the first  port they shall make in England until a convoy shall sail from thence to the  down with which convoy they shall sail thither and from thence make the best  of their way for London and there deliver their cargo the appellant also on  their part covenant that they will load the ship and dispatch they within  seventy day and pay three single fraught twothirds of the portcharges and  primage and average as accustom and will also pay to the respondent in London  pound per they for the swallow galley and pound per they for the Beak galley  for each and every day that the say galley shall wait for convoy at Gibraltar  Lisbon or elsewhere during the say voyage over and above the space of twenty  day in the whole it be thereby agree that during the say space of day if the  say galley shall so long stay for convoy at Gibraltax Lisbon or the port of  England they shall lie at the sole charger of the say commander and the party  reciprocal bind themselves in the penalty of pound for the performance of  these covenant pursuant to these charterparties the respondent sail with their  ship in company together from Leghorn to Alexandria Tripoli scanderoon and  Cyprus and have take in what good be tender at Cyprus the last load port they  sail from thence for Gibraltar on the d of march and arrive there on the that  of may where they stay for want of convoy till the that of October follow be  day brown for on the that of September captain moody with two other English  and some Dutch ship of war and about sixty sail of English and Dutch transport  of which he be commodore come into Gibraltar where he stay till the that of  October when have give the say two galley sail order he sail with they and the  rest off the fleet from thence to Lisbon where he arrive on the that of the  same month and stay there till the that of November follow from whence they  then depart for England and arrive at Falmouth on the d of December and there  stay till the that of January be day and then sail for Spithead where he  arrive on the that of the same month and from thence to the down and the say  galley have there take leave of their say convoy arrive in the river Thames on  the that day of February follow and there finish the voyage the respondent  soon after their arrival at the port of London deliver their cargo to the  appellant or their order in good condition and accord expect payment of their  fraught demurrage portcharges primage and average pursuant to their  charterparties which by a account deliver amount for the swallow galley to  pound S d and for the Beak to pound S make together pound S d part of this  money to the amount of pound be at different time pay but the appellant  neglect to pay the residue action at law be commence against they by the  respondent in the court of king bench to compel a satisfaction of brown er p  their demand to these action the defendant for delay put in long and frivolous  demurrer which be overrule by the court and judgement obtain they then bring  writ of error in the exchequer Chamber and afterward on the that of may  exhibit their bill in chancery against the respondent insist that no demurrage  ought to be pay for either of the say ship for any of the day after convoy  have join they that the respondent do not join the first convoy which come to  Gibraltar that they the plaintiff have sustain great loss by the ship not come  soon from thence particular by their not come away with sir John leak who pass  by Gibraltar on the that of September and therefore the bill pray a  satisfaction for the damage which have arise from this conduct and a  proportionable deduction out of the demurrage the defendant by their answer to  this bill deny the several allegation thereof and set out the whole course of  their voyage from Gibraltar under the convoy of captain moody as before start  and that they use all their endeavour to have come with sir John leak when he  pass by Gibraltar but that he positive refuse to take they under his convoy  have appoint captain moody for that purpose on the saint of February the cause  be hear before the Lord chancellor Harcourt who refer it to a master to take a  account of what be due to the defendant respective from the plaintiff for  fraught demurrage portcharges and average or brown otherwise accord to the  covenant in the charterparties and decree that the plaintiff shall pay the  same in moieties and the master be to see when the sum Payable to the  defendant become due and what they have receive from the plaintiff towards  satisfaction thereof and when and the say master be to make all just allowance  on either side and upon the plaintiff pay what the master shall certify to be  due satisfaction be to be acknowledge on the record of the several judgement  obtain upon the charterparties but upon nonpayment of what the master shall  certify to be due the bill be to stand dismiss with cost and it be further  order that the party shall proceed to a trial at law in the court of queen  bench the then next term to try whether the plaintiff or either of they be  damnified by any breach of the covenant in the say charterparties or any of  they commit by the defendant or either of they and wherein and if the  plaintiff be damnified then how much they be damnified by such breach and  after such trial have either party be at liberty to resort back to the court  and the consideration of interest and cost be reserve till after the account  take and trial have on the that of December the issue be try when the jury  without go out of court find against the plaintiff and that they be not  damnified by the breach of any of the covenant in the charterparties in  consequence of this verdict the party proceed before the master upon the  account direct by the decree and by the report date the that of march the  master certify that there be demurrage due to each ship for day which at pound  per diem for the swallow galley amount to pound and for the Beak at pound per  diem to pound and in this demurrage be include the day which the ship stay at  Falmouth to this report the plaintiff file several exception the most material  of which be saint that the master shall have distinguish how the demurrage  happen and shall not have charge those day which the defendant be detain by  contrary wind and d that he have overcharge for both the ship day at Gibraltar  after captain moody arrive there day at Lisbon day at Falmouth and day at  Spithead on the that of December these exception be argue before the Lord  chancellor Cowper who be please to declare that the plaintiff ought to be  charge with demurrages during the time that the ship wait for want of convoy  beyond the day as also for demurrage from the time that the convoy be not  ready to sail but that no demurrage ought to be allow while the ship and their  convoy stay for want of wind or be detain by contrary wind but if the convoy  be not ready or able to sail at any time when the ship be both ready and able  to sail the stay of the ship for the convoy be the same thing as if no convoy  be near at that time his brown lordship also declare that brown er p upon the  whole evidence it appear that the galley be keep at Falmouth partly by stormy  weather and contrary wind and partly by reason that their convoy can not turn  out of the harbour and prosecute the voyage when the galley can and therefore  the master have charge the plaintiff with the whole day demurrage have charge  they with too much but it not appear exact how long the galley be detain there  by contrary wind or bad weather and it be unlikely that any better evidence  than be already before the court can he have before a jury if the matter be  send to a trial at law at so many year distance and on such a subject as the  state of wind and weather at that time his lordship think fit to settle the  difference by way of estimate as near as may be on the evidence before he and  the rather because there have be several issue already direct and try in this  cause wherein the defendant have be acquit of all affect delay in the voyage  and as this cause by its long depend have already become one of those which be  a reproach to the justice of the kingdom his lordship therefore order that the  plaintiff shall be allow day demurrage out of the day with which the master  have charge they by his report in respect of the time which the galley  themselves appear by a reasonable estimate on the proof take in the cause to  have be detain at Falmouth by bad weather and contrary wind and during which  time they must have continue there though they have make the best of their way  and not wait for convoy as it appear they do but from so much of this order as  allow any demurrage at Falmouth the plaintiff appeal insist S Cowper W peer  William that it manifest appear by captain moody and several other witness and  even by the respondent own letter that the ship be force to put in and be  detain all the say day at Falmouth by contrary wind and bad weather and not  for want of convoy and that several ship which venture out from thence be lose  that captain moody who convoy the respondent to Falmouth sail from thence  three day after their arrival there and that the respondent can not sail with  he and if they have though they may not have be cast away as several be yet  they must have stay at Plymouth where captain moody be oblige to put in and  continue by contrary wind till the respondent overtake he so that although he  leave Falmouth so soon he do not arrive in the down one day before the  respondent do that although moody and other sail from Falmouth without the  respondent yet several other man of war lie all the time there for no other  purpose but to convoy the merchantship up the down which they accord do as  soon as the wind and weather permit and that if this fact have be as doubtful  upon the evidence as it be plain it will have be at least reasonable to have  try the same at law but as it full appear upon the proof that the respondent  be detain by contrary wind and bad weather and not for want of convoy it be  hope that brown so much of the say order as allow the respondent demurrage for  any of the say day will be reverse and the exception take to the master report  in that respect allow to this it be answer r Raymond S mead that the reason  mention in the order as the ground and foundation of it be so very strong and  unanswerable as make it evident that the appellant can scarce be think to aim  at any thing by this appeal but to delay the respondent from receive the  residue of the money due to they for which they have be now prosecute almost  nine year and therefore it be hope that the appeal will be dismiss with  exemplary cost but after hear counsel on this appeal it be with the consent of  the party on either side order and adjudge that the order complain of shall be  so far vary as that the payment of day demurrage by the appellant of the say  day shall be reduce to day jour vol p brown er p