meadow, and lie down to repose yourself, the refreshment thence arising can reasonably be described as an invention. The case of Home v. Young, therefore, in which these arguments were used, has nothing to do with the present. My Lords, the authorities appear to be as conclusive for the respondent as they are against the appellant; and among them the first to which I would refer your Lordships is the case of Dunse (1), where it was held in effect that a right of servitude could not be sustained by the inhabitants of a town generally without tenements to support it; and that the right must be measured by the property. In England we know that the right of pasturage is by levant and couchant; that is, it is governed by the number of cattle which you have the means of housing and providing for in winter. The next case which supports the respondent is that of The Marquis of Breadalbane v. McGregor, which is very important. There you may say the right was claimed for the whole world, the allegation having been that everybody coming from the north to the south was entitled to use certain resting stances on a drove road passing through the estate of Lord Breadalbane. The pursuers, moreover, asserted that *as the distance was too great for their cattle to travel without rest, they had therefore a right to stop at convenient distances, and to depasture them on the land adjoining the stances whenever they found it necessary to do so. The Court of Session so far gave way to this pretension, as to send it for trial by jury; but your Lordships, upon very sufficient reasons, as I apprehend, decided that no such universal right could exist. That there had been encroachments by the cattle in their progress from the north to the south, and if they returned, as they might do, from the south to the north might have been the case; but this House held that that circumstance could found no right whatever. Accordingly your Lordships stopped the trial of the issue which had been directed. Now, if you will apply the same principle to the present case, and if, instead of cattle, you take the gentle inhabitants of Aberdeen and its vicinity, you will find that it fits much more closely than at first might be imagined. My Lords, the next case is an infinitely stronger one, and is a clear decision, I consider, upon this very question; I mean the case of Harrie v. Rodgers. Lord MONCREIFF, who was himself counsel in the cause, thus explains it: "The pursuer did at first claim a right for the public of strolling or wandering generally over the banks of the Clyde within Harvie's grounds. But this was resisted, and the COURT refused to grant any issue on it; and the only issue sent to trial was distinctly of a public foot-path from the city of Glasgow or the Green, to the village of Carmyle. This goes directly (1) Dunse v. Hay, Morr. Dict. 1825. R.R.-VOL. CXLIX. 2 DYCE v. HAY. [*314] to the point, that though there may be a right of road to the public through private grounds, it is as a road or passage only, and for no other purpose. A servitus spatiandi over open ground which has in some manner been devoted to public use, is also intelligible and known to the law; but such a right as that here claimed over private inclosed grounds, not made for the public, but for private parties, and having no written title connected with the grounds, for merely walking over them, and resting thereon according to their pleasure, is a thing of which, I believe, there has hitherto been no example." My Lords, some important observations were made by Lord ELDON in this House, in the case of Dempster v. Cleghorn, where a right of playing golf was claimed over certain property; and the question arose, whether the owner could or could not keep rabbits on the soil, to the destruction or interruption of this game of golf. Lord ELDON remarked that the question was, "whether a servitude. could be supported which subverted the use of the property over which it was claimed?" On a subsequent day, he adverted to a point upon which I have already observed. He said that" certainly it was a different question whether such a title could be set up by prescription, and whether it might be reserved by bargain." Upon another point to which I have also called your Lordships' attention, he held "that it was a strong thing to say that all who chose to do so might play at golf on a man's ground; and for that purpose destroy all the produce which it was best calculated to yield, and prevent its being used for those ends to which alone it could be applied beneficially for the owner." It is quite clear, therefore, that the impression on the mind of Lord ELDON was, that no such right could be claimed as would be inconsistent with the rights of property. My Lords, I think, therefore, that by the law of Scotland, this is a right which cannot be maintained. I think, moreover, that it is a right which ought not to be maintained. The appellant has endeavoured to invoke the aid of the law of England in his favour; but I apprehend the law of England is more decidedly against him even than that of Scotland; by which last, however, it falls upon the House to be governed exclusively in the present instance, and in accordance with which, as I understand that law, I now humbly advise your Lordships to dismiss this appeal, and to affirm the interlocutors complained of. It is ordered and adjudged, that the said petition and appeal be, and is hereby dismissed this House, and that the said interlocutors therein complained of, be, and the same are hereby affirmed: and it is further ordered, that the appellant do pay or cause to be paid to the said respondent the costs incurred in respect of the said appeal, the amount thereof to be certified by the clerk assistant: and it is also further ordered, that unless the costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the cause shall be and is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the bills during the vacation, to issue such summary process or diligence for the recovery of such costs as shall be lawful and necessary. STEWART AND OTHERS . GREENOCK MARINE (1 Macq. 328-333; S. C. 2 H. L. C. 159.) [Reported, 81 R. R. 91, from 2 H. L. C. 159.] SCOTTISH MARINE INSURANCE COMPANY OF GLASGOW v. JAMES TURNER (1). (1 Macq. 334-343.) DYCE v. HAY. 1847. June 15, 17. 1848. Sept. 1. 1853. Feb. 15, 17. Lord Upon a policy for freight the insurers cannot be held responsible CRANWORTH, where the freight has been actually earned. Where ship and freight are separately insured, any arrangement between the insurers of the ship and the owners, to the prejudice of the insurers of the freight, should be watched with jealousy. Definition of the obligation upon a policy for freight. Where a vessel has received injuries entitling the owner to treat her as totally lost, and where he consequently abandons her to the underwriters on ship, they are entitled to all freight afterwards earned. An owner insured is not bound to repair the ship, if she be so damaged that a prudent owner, uninsured, would not repair her. On abandonment, the owner becomes trustee for the underwriters on ship and is bound to assign. But how far the abandonment operates itself as an assignment, regard being had to the Registry Acts,-Quære. Immaterial whether the ship is lost a short time after the inception of the risk, or a short time before the completion of the voyage. A verdict is to be taken in conjunction with the admissions of the parties which admissions even the jury cannot gainsay. Comments by Lord TRURO on the decision of the House in Stewart v. Greenock Marine Insurance Company (2). THE Owners of the ship Laurel (as appears by the report of the preceding case (3), having been compelled to surrender the freight received by them from the consignees of the cargo, were advised to institute the present action in the Court of Session against the insurers of the freight-the present appellants-alleging that as the underwriters on ship had been found entitled to the freight, it must be considered as lost to the assured, and consequently recoverable under the policy. The COURT below (2) gave judgment in favour of the owners, which occasioned this appeal. (1) Marine Insurance Act, 1906, s. 63; Potter v. Rankin (1870) L. R. 5 C. P. 341, 358; in H. L., L. R. 6 H. L. 100. (2) See 13 D. 652, 989. L.C. [334] SCOTTISH MARINE INSURANCE CO. OF GLASGOW v. TURNER. [ *335 ] [ *336 ] Sir Frederick Thesiger and Mr. Willes, for the appellants. Sir Fitzroy Kelly and Mr. Serjt. Byles (Mr. Burnie with them), for the respondents. The argument is exhausted by the following opinions. THE LORD CHANCELLOR (1): My Lords, I have given very anxious attention to the able and well-reasoned opinions of the learned Judges in the Court below, but I am unable to assent to them; *for I apprehend they rest on an unsound foundation. I am of opinion that, as between the parties in this cause, it cannot be said that the ship was totally lost during her voyage. That she was not in fact lost is certain; for she arrived at Liverpool, was there brought into dock, her cargo safely delivered to the consignees, and the freight paid to the owners. But how then, it is asked, are these facts consistent with the verdict of the jury in the previous action against the underwriters on ship. The answer, my Lords, is that the verdict in that case was altogether res inter alios. When it is said that, as between the owners and the underwriters on ship, there had been a total loss, all that is meant is that the circumstances of the case were such as to give the owners the same rights against the insurers of the ship as if there had actually been a total loss. My Lords, when the cargo was delivered, and the freight paid, the owners, if they had thought it for their interest, might have retained the damaged ship, and come on her insurers for the cost of reparation. In such a case there could have been no possible claim against the underwriters on freight. The learned Judges in the Court of Session seem to doubt whether the contract of the underwriters on freight was performed, and whether the sums paid to the owners by the consignees on the delivery of the cargo were not to be regarded as in the nature of salvage rather than of freight; paid indeed to the owners, but paid to them only as agents of the underwriters on ship. I do not think there is any ground for this doubt. The sums paid to the owners by the consignees were due for freight and for nothing else; and if payment had been withheld, there cannot be a question but that an action could have been maintained by the owners for payment of the freight immediately on delivery of the cargo. None but the owners could have maintained that action, and they could maintain it only by virtue of their original contract of affreightment. What the underwriters on freight undertook was that the voyage should be so performed as that the owners should be able to deliver (1) Lord CRAN WORTH. the cargo, and so be in a condition to assert their title to freight. SCOTTISH This contract the underwriters on freight have undoubtedly performed. It is true that the Court of Session first, and this House afterwards, decided that the sums paid for freight were paid to the owners not for their own benefit, but for the use and behoof of the underwriters on ship; and it was strongly contended at your Lordships' Bar that the contract into which the underwriters on freight entered with the owners was that the voyage should be so performed as to entitle the owners to recover the freight for their own use, and not merely as agents or trustees for others. By the decision it has been determined that, under the circumstances, the freight was due not to the owners but to the underwriters on ship; and so it was urged in the present case that the contract of the underwriters on freight was not performed. But this reasoning rests on a fallacy. The underwriters on freight engaged that the ship should not be prevented by perils of the sea from enabling the owners to earn her freight. Nor was she so prevented; for, in spite of those perils, she arrived in port under the conduct of the owners, and they obtained payment of her freight. The right of the underwriters on ship to claim that freight arose, not from perils of the sea, but from the election made by the owners, after the freight had been earned, to treat the ship as wholly lost on the 11th of August. My Lords, where a ship has received such injuries as entitle the owner to treat her as totally lost, and where the owner consequently abandons her to the underwriters, they come in as assignees; and so are entitled to all freight afterwards earned. It was to this state of circumstances that Chief Justice TINDAL referred in Chapman v. Benson (1), where he said: "The assured has sustained a total loss of the freight if he abandons the ship to the underwriters on ship, and is justified in so doing, for after such abandonment he has no longer the means of earning the freight or the possibility of ever receiving it, if earned, such freight going to the underwriters on ship." But there the very learned CHIEF JUSTICE had in contemplation what was then treated as a total loss and abandonment before the freight was earned. The distinction between the case of Benson v. Chapman according to what were supposed in the Court of Common Pleas to be the facts, and the present case, is, that in Benson v. Chapman before any freight had been earned there had been a damage so serious as to justify the owner in treating it as a total loss and abandoning the ship to the underwriters. Whereas in the present case the owners remained in actual possession till after the freight had been earned, (1) 6 M. & S. 792. MARINE INSURANCE Co. OF GLASGOW v. TURNER. [ 337 ] |