in the Service done for Salvage, &c. And further, that if in Extremity, the Safety of the best of the Ship's Cargo is not preferable before that of the meaner Value, it will be of ill Consequence; and therefore the Sea-law provides first for the Safety of the best of the Cargo, and the Master acted accordingly; and that 'tis the Opinion of those who are learned in the Maritime Laws, That where Freighters Goods are equally in Danger, and a like Opportunity for the Salvage thereof, if the Safety of the one be preferred, and the other comes to be [20] lost, such Preference obliges the Goods preserved to contribute to those which are lost; it being a General Rule in Causes Maritime, That one Man's Interest ought not to suffer for the Safety of another's.
Argument for the Respondents. Average where to hold. Decree affirmed.—On the other side, it was argued with the Decree, That this Pretence was new; that 'twas a Notion unprecedented; that the Rule of Average went only to the Cases, where the Loss of one Man's Goods contributed to the Safety of another's, as by Lightning the Vessel, &c. and not to this Case; that here each Man was to undergo the Peril of his own Goods; that in Case of Damage to Goods within the Vessel, other Goods were not contributory, but the Owner must endure his own Loss, and had only his Remedy against the Master, if it were occasioned by his Defect or Miscarriage: That the Reason of Average was a meritorious Consideration in the common Case, because there the Loss of one did actually save the other; but here was no such Thing: The Loss of these Oils did not save the Silk, nor did the Saving of the Silk lose the Oils; for if the Silk had not been saved, the Oils had been lost, for they were so bulky that they could not easily be removed without further Time; and if Part only be saved, 'tis to the Advantage of the Owner; and where all cannot be saved at a Time, the Benefit is accidental to him, whose Goods the Master's Discretion directs to be saved: And in this Case here was no such Commodity, as could contribute to the Loss of a Ship, if it had been kept on Board; for the Silk, if on Board, had not assisted to her sinking. But besides, here were six or eight Days between the Landing of the Silk and the Seizing of the Ship by the French, in which Time all the Oils might have been Landed, and thereby both them and the Ship saved; and the Apprehension of the Danger could not so soon be removed by losing Sight of the Enemy in the Morning, and therefore there was no Reason for the Master immediately to forbear landing his Oils. Therefore 'twas prayed that the Appeal might be dismissed, and the same was accordingly done, and the Decree of Dismission below affirmed.
Whitfield & Ux' & al', Appellants; Paylor & Ux' & al', Respondent [1697].
[16 Lds. Jo. 139.]
What Agreement not relieved in Equity as unreasonable.—Appeal from a Decree in Chancery: The Case was thus: Sir Lawrence Stoughton, a young Baronet in Surrey, having an Estate of near 1000l. per Ann. was a Suitor to the Respondent Mary, the Daughter of one Burnaby a Brewer, reputed to be very Rich. Upon the first Proposal of Marriage, Burnaby did agree to give 5000l. certain, and insisted to have a Jointure of 500l. per An. [21] settled, and that she should have the Inheritance of the Jointure, if he died without Issue. Sir Lawrence did refuse to agree to this; but afterwards he renewed the Treaty himself, and accepted of Articles for payment of 5000l. Portion, and made a Settlement of a Jointure of Lands worth 500l. per Annum; and likewise made another Deed in the Nature of a Mortgage of all his Estate, as well the Reversion of her Jointure as the rest, for securing the Payment of 5000l. to her in case Sir Lawrence died without Issue; and died within a Fortnight after Marriage, without Issue. The Lady Stoughton prefers her Bill, and prays that the Appellants might be fore-closed of the Equity of Redemption on Failure of Payment. The Appellants exhibit their Bill to be relieved against this as a Fraud; and upon hearing of these Causes before the Master
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