boucher versus lawson although it appear that the fraught of certain good ship  on board a general ship usual belong to the master yet if he refuse to deliver  the same to the consignee a action for nondelivery lie against the owner on  the general custom and this although the master do not account to they for the  fraught but then in the case of a special verdict it must be find that the  ship be a general ship I e carry for hire for the custom need not be allege in  the declaration fact must be find sufficient to bring the case within the  custom the plaintiff in a hard action will not after verdict be permit to  discontinue a action on the case bring against the defendant for that the  plaintiff deliver a parcel of good into a ship whereof the defendant be owner  bind from the river tagus to London where the good be to be deliver and that  the defendant undertake to carry the good and deliver they at London to the  plaintiff the plaintiff aver that the ship do arrive safe at London and that  the defendant refuse to deliver the good to he the defendant plead not guilty  on a trial at Guildball before Lord Hardwicke a special verdict be find as  follow that the defendant be sole owner of the ship that he appoint one  Fletcher master of it that the plaintiff put the good on board this ship to be  carry from the river tagus to London and the bill of lade be find in haec word  whereby the plaintiff be to pay so much fraught for the good and that the good  be to be deliver at the port of London on the that of August damage of the sea  except which bill of lade be sign by the master case tempt Hardwicke they  further find that the ship do arrive safe at London that the plaintiff have  make no assignment of the good that in September the plaintiff make a demand  of they and that the defendant refuse to deliver they and that the plaintiff  be ready to pay the defendant the fraught they further find that the good be  Portugal gold and that to export it be a unlawful trade accord to law of  Portugal they last find it to be usual when any gold be export from Portugal  to this kingdom for the master of the vessel to take the whole fraught to his  own use without account for any part of it to his owner unless there be some  special agreement between they to the contrary and that in the present case  there be no such special agreement sergeant darnel for the plaintiff that this  do not differ from the common case of owner of ship who in like manner as  carrier be liable for the master neglect in respect of fraught mors and sluice  Mod lev vent S c a action against the master of a ship for damage the  plaintiff have receive by his negligence it be strong insist upon that the  action do not lie against the master but shall have be bring against the owner  themselves but the court hold the action lie either against the owner or  master for that they be both entitle to a action for the fraught the defendant  in that case plead that eleven arm man come on board he under pretence of  press and take away the gold but this defence be not allow of the court  compare it to the case of a common carrier case tempt Hardwicke er p boson and  Sandford Carth salk lev comb show S c a action against the owner adjudge that  the action do lie against either owner or master for default of the master for  either of they may bring a action for the fraught although the point be admit  in the case here cite yet the decision of the case by reason of a defect in  party against who the action be bring be against the plaintiff on the trial  but now that defect be only available by abatement Brandon and peacock the sit  after easter term geo two at guildhall before Raymond c j cite post Cun S c a  person put tobacco on board a ship the master run away with the ship and  tobacco the good be insure the person that own the tobacco apply to the  insurance office and receive the value of it the insurance office take a  authority from he to sue the owner and the c I hold that the action lie this  have be likewise the practice of chancery vern a man have undertake to carry  good in a light and the light be overset and the good damage and a bill be  exhibit to discover the owner Morse and Buckworth in the same book case tempt  Hardwicke Abney contra for defendant that without impeach any of the other  case the present may be distinguish from they the verdict have find among  other thing that this trade of export gold be a illicit trade accord to the  law of the kingdom of Portugal and in this particular trade it be usual for  the master to take the whole fraught to their own use without there be some  special agreement to the contrary and that here there be no such agreement  Michaelmas geo canc Burroughs and Jamineau vin Abr pl Eq Cas Abr pl mos Sel  Chan Cas stram S c cite arguendo east a suit be commence at Leghorn about the  acceptance of a bill of exchange draw there and the judge of the court be of  opinion that the acceptance be not sufficient the party afterward happen to  come into England the plaintiff bring his action here but the defendant in who  favour the judgement at Leghorn be bring his bill in chancery and king Lord  chancellor be of opinion that the court of Leghorn have a general and proper  jurisdiction of the cause their judgement be bind and conclusive to the court  here and thereupon grant a perpetual injunction his lordship cite a very  remarkable case of a person try in Portugal for murder and acquit and who come  into England be afterward arraign at the old Bailey accord to the stat Henry  VIII but plead his formal acquittal and it be allow acquittal on a trial for  murder abroad plead on a arraignment here and allow hutchinson case show Rep  Kel Rep pl Mod comb Tri at Ni Pri Theo eved if the court here will take notice  of the particular determination of the court abroad they will have more regard  to the general law of a country declare trade unlawful and not give any  countenance to action bring upon such illicit commerce the owner of a ship be  to be consider as a general master and the master as his servant a master be  not answerable for the act of his servant but where he act in execution of any  authority give he by the master salk skin S c if a servant abuse a distress he  only be answerable hard my servant sell false stuff without my command it no  action lie against I otherwise if by my commandment in the present case there  be no privity between the plaintiff and defendant the defendant be whole a  stranger to the bill of lade which be make between the plaintiff and the  master and the fraught as be find by the verdict be the master and not the  owner case tempt Hardwicke the usage and custom of merchant which be part of  the general law of England and ought to be take notice of by the court of  justice be that in this case the master of the ship be entitle to the whole  fraught and the owner to no part of it the reason the court go upon in boson  and Sandford cite p ante and the other case case tempt Hardwicke er p be that  the defendant be common carrier of good for hire and be entitle to the fraught  it be say there that the action certain lie against they as they have all the  profit and all the recompense which be otherwise in the present case neither  be these case of a unlawful trade as hire be the ground of the action on the  custom against common carrier so be fraught against the owner of ship the  undertake be not the undertake of the owner but of the master if the servant  of a carrier carry good without the privity of his master or his receive a  reward for take they the master be not Chargeable Middleton and foul salk to  the same purpose pate and west Trin geo two a action against the Hampstead  stage coachman for a shirt that be lose raym c j hold that a servant by take  the profit or by a special undertake be liable but that the master be not  answerable where he do not receive the profit sergeant darnel in reply that  this can be distinguish from the case of boson and Sandford ibidem for the  very bill of lade give the owner a action for the fraught that this be a  unlawful trade in the kingdom of Portugal it can have no relation to the  contract between the owner and merchant if a man shall steal good and put they  on board a vessel there be no doubt but the owner will be entitle to fraught  as to the master not be liable for his servant but in the exercise of his  trade this be in the master trade for it be the trade of the owner of ship to  carry good if a servant nail a horse the master be liable a delivery to the  servant in the way his master employ he be a delivery to the master palm cur  Lord Hardwicke c j this case seem at the trial of very great consequence as it  concern on the one side one of the most beneficial branch of the English trade  as it relate to the security that person have in the trust their gold on board  English ship and on the other side as it concern the security of owner of ship  that they may not be charge by the default of their master further than reason  require but since by a Act of parliament make last session geo two c see  Commons journal for the year page the case refer to by the petition appear  clear to be that of Boucher Lawson cite in part chap sec the bill go through  both house without a division the clause direct proportional compensation and  relief in equity be introduce in the house of Lord Abbott c S n king owner of  ship be liable for good take in by their master without their privity no  further that their interest in the ship case tempt Hardwicke and in the  fraught it be not now of so great consequence as the point of law here bring  in question only concern the party in this suit and will not affect any future  determination have this case be direct within the reason of boson and Sandford  or mors and sluice both cite p ante the special verdict will not have be  direct to have be find these two case be under the like reason as be likewise  that of Brandon and peacock also mention p ante and therefore must be take for  law not now to be shake that where there be a trade ship concern in a voyage  it must be consider in the nature of a common carrier and the owner be liable  for the negligence or fraud of the master these case depend upon two ground be  it that the owner appoint the master and dly that the fraught come to the  owner here it be find by the verdict that the last of these reason fail and  therefore it will stand upon this single ground that the master be the owner  servant they be liable for his act the first difference attempt to be make  between this case and the other be that this trade of export gold be find to  be a trade prohibit by the law of the kingdom of Portugal but though the trade  be find to be there unlawful yet the verdict have not find the consequence of  it whether it may incur the loss of the ship or a personal penalty on the  master only and I be not satisfy that this will make any difference the carry  on indeed of a trade prohibit by the law of England be of material consequence  and it be say that the party in that case shall receive no relief as they be  both sharer sin and therefore the law will not give one any remedy against the  other but if it shall be lie down that because case tempt Hardwicke er p good  be prohibit to be export by the law of any foreign country from whence they be  bring therefore the party shall have no remedy or action here it will cut off  all benefit of such trade from this kingdom which will be of very bad  consequence to the principal and most beneficial branch of our trade nor do it  ever seem to have be admit the reason go upon by Lord chancellor king in the  case of borough and Jamineau cite p ante be certain right that where any court  whether foreign or domestic that have the proper jurisdiction of the case make  a determination it be conclusive to all other court but I never be satisfy  with the chancellor opinion in grant a injunction upon it for if the exception  be a exception at commonlaw therefore the party shall have be dismiss to have  take advantage of it there this case be cite for this arguendo east r case  tempt Hardwicke in the time of car two a suit be bring on a contract of  marriage the sentence of the ecclesiastical court at Turin be give in evidence  and allow to be conclusive and for the learning further as to the question of  the conclusiveness of foreign judgement see I Doug and the note and where n a  reference be particular make to this case but though a determination in a  particular case may be be ding here yet that will not make the general rule of  their law conclusive in this kingdom therefore it do not seem that the  unlawfulness of this trade in Portugal since it be lawful in England will have  any effect on the determination of this case the next distinction make be that  it be find to be usual when any gold be export from Portugal to London that  the master shall take the fraught to his own use without account for it to his  owner unless there be some special agreement between they to the contrary this  point if any will make the in Justin Inst title army ship a action do not lie  against a man as owner but as be have the benefit of the fraught for when  there be several owner and one dissent from the voyage he shall not be liable  afterward for a miscarriage c comb per holt C J material difference but it  want to be a little more clear up the bill of lade be find by the verdict in  haec word and in it be these word to pay fraught for the say good now fraught  be the fruit and earn of the ship by the rule of law belong to the owner and  the master only entitle to his wage and therefore have it stand on the bill of  lade and nothing else the court will have take it that the fraught belong to  the owner but the question be whether the subsequent find of this usage will  make any difference now as to that the point will be whether this be to be  take as a strict custom or for no more than the common practice and that the  owner only make a allowance to the master of this part of the fraught whether  that they pay he less wage or on any other consideration for then it be only a  allowance of part of their profit to the master and they be notwithstanding  liable and therefore if this find on the usage be to be take consistent with  the bill of lade and the reward for carry the gold be fraught and consequent  by the rule of law belong to the owner they be within the case of boson and  Sandford cite p ante page I that as to the find of the usage if a common  carrier shall allow his driver the carriage of some small thing as perquisite  the master will without all doubt be still liable and that be only a private  agreement between master and servant and only a different way of pay his  servant wage case tempt Hardwicke lee I be of opinion that as the owner be in  general entitle to the fraught for good import it seem not to be a proper  consideration for the court whether he be so in this particular case but that  they must go on the general notion of the law in these kind of imply contract  on which action be allow against carrier and owner of ship that as to the  trade be prohibit by the law of Portugal the right of a English subject can be  alter by the general law of any other country unless there have be a  particular determination in his case stand over Q Trin geo two see post case  tempt Hardwicke er p