Septr. 24th. 1760.1
If I am the Proprietor of an House, and I lease it to any Man, and bind my self to keep it in Repair, it is reasonable and it is Law, that I should have a Rent. So if I am the owner of a ship, and I let [it] out on a Voyage to the Wist Indies or to Europe it is reasonable, and the maritime Law has made provision that I should have freight. For the sum of Money, that an House or a Ship would Cost, would if placed out, on Interest, bring in Annually 6 pr. Cent for my Use. Now I cant loose the Interest of my money, and besides my House is constantly wearing and decaying and my ship and her Cordage and her Canvas are continually wearing, so that the Rent and the freight ought to be sufficient to enable [me] to make these Repairs: But besides this, all Merchants, all Persons who have Property, in shipping, in Vessells that sail upon the sea, are in a peculiar manner liable to Accidents and Misfortunes. They are in Danger, from storms, from Rocks and sands, and they are in Danger from Pyrates and frenchmen, so that the Law, in establishing the freight of Vessells has made allowance, for these 3 things—for the Interest of Money on the Capital, for the Constant Expences in Repairing the Hull and the Cordage and the sails, and for the peculiar Danger from seas, Winds, Rocks and Enemies, which constantly environ Vessells on the sea. And accordingly the freight or Rent of shipping is very high in all foreign Voyages. Well, now the same Reasons, which have established a freight upon Vessells in foreign Voyages, has by Law established a certain share of the Profits [of] this schooner now in Controversy. But the Case, which is more precisely parrall[el] to this of Mr. Lovell, and which is decisive in this Case, is that of Whaling Voyages. In Whaling Voyages, of[f] the shoals of Nantuckett, and in those to Hudsons Bay, there is frequently, a Master of a Vessell, and a Master of the Voyage i.e. a ship is taken into the service, and Whale Boats put on Board her. The Vessell sails into the Whaling Latitudes, and then puts her Boats to sea after the Whales. The Whales are taken on Board the Vessell, and brought home to Cape Cod we’l say, in a sort of Blubber. Wel there, at Cape Cod they frequently hire other People, People who had no Concern with the Voyage, to boil that Blubber into oil. When that is done the oyl is sent up to Boston and sold by Persons who are allowed Commissions for their Pains and after the Oyl is sold, the Established Rule is, to pay all the Costs of Boiling the Blubber and the Commissions arising on the sales and then the Vessell which went out upon the Voyage draws one Quarter of the whole Profits of the Voyage. But the particular Custom which has prevailed among these small Lighters, and schooners that run out a fishing, where there is not so much Danger of Shipwreck, is that the schooner or Lighter shall draw one fifth Part of the Profits of the Voyage. If a schooner runs out in the Harbour a fishing the schooner draws every fifth fish, and whenever they have taken up any drifted Timber or Shingles or Boards, the same proportion has been observed. I have known several Instances in which our Braintree Boats have taken up valuable things adrift, in Cases where there has been no danger to the Lighter, only her time has been consumed, and the Boat always drew one fifth of such drifted Timber as well as of the fish. The only thing, that I can think of, and which the first [. . .]2 to its utmost extent [. . .] think of, as I believe to distinguish this Case from any of the 3 that I have mentioned, either from that of a ship on a foreign Voyage or of any Vessell on a Whaling Voyage or of common Lighters and schooners on fishing Voyages, is this. That the schooner was not stout enough to weigh the Anchor and they were obliged to hire another Vessell to go down a Weight [?] it.—I beg your H[onor’] s careful Attention to this Point, because I suppose the whole stress of the Cause will be laid upon it, by the other side.—Now this I insist upon it can make no Alteration in the Case at all. For Mr. Lovells Vessell went out, upon the supposition that she should draw 1/5 of the whole Profits of the Voyage, 1/5 of all the fish, that should be caught, and 1/5 of every Thing that he found adrift upon the surface or drawn upon from the Bottom of the Sea. And without this Prospect of 1/5 of the Profits, he would not have let her gone. He could have gone in her himself and made Profits by her or he could have let her out to others who would have minded their fishing, and so have gained Profits for him as well as for themselves. Suppose it had been said to Mr. Lovell, let us have your schooner to go out a fishing, and if we catch any, you shall have a fifth, but if we catch none, you shall have nothing and I believe we shant for we intend to spend most of our time in Poking after an Anchor or a Chest of Gold, that we suppose to be lost out in the Harbour; but if we should find this Anchor or Chest your schooner is not able to weight it, and so you shall have no Part of that.
Would Captn. Lovell have consented to that. No he would have laughed at them for fools to think he would, or have frowned upon them in Resentment of an Affront, for such a Proposal in Earnest would have been an affront. Well now what he could not have been desired reasonably to have consented to before the Voyage Your Honor cant desire him to do, and the Law will not oblige him to do after the Voyage. The Time of [the] Schooner was spent in securing of the anchor, time in which she might have earned him money either in fighting or fishing, his Vessell, his Ropes, and Sails were worn in the service, which will cost him money to repair; and what is worse than both the former, his Property was endangered, his Anchor was in great Risque of being irrecoverably lost in the first Place by its Entanglement with the large Anchor at the Bottom, and afterwards by the Use they made of it in raking at the Bottom to bring up the Cable of the great Anchor. And to say that the great Anchor was not weighed by his schooner is to say nothing. <
It was secured by his schooner, and totally by his schooner.>
I say too that the Whales are not taken, cannot be taken by the ship. They are taken by the Whale Boats: I say too that the ship cant boil the Blubber up into oyl. But what then? The ship’s time is spent, she is wearing out, and she is endangered, and therefore she shall draw a Quarter of the Neat Profits of the Voyage after Wages for Boiling and Commissions for selling, are paid. This I rely upon, this schooners being unable to weigh the Anchor, is exactly like the ship in Hudsons bays being unable to chase and take the Whales. And their hiring another Vessell to go down, and weigh it, is like Whale mens hiring other Men to boil their blubber, and to sell their Oyl, and that this schooner has as good a Right to 1/5 of the 2/3 after the one third is taken out, which by Agreement was given to the Vessell that weighed it, as a Whaling Vessell has to one fourth of the whole Profits of the Voyage after enough has been taken out to pay the Boilers and factors.
And nothing can be more reasonable. Suppose I should Agree with a Man, to let him have my Horse to Rhode Island to purchase a Quantity of Goods, and he engages I shall have one fifth or one Qr. of the Profits of his Journey. Well when he gets upon Seachonk Plain, He finds a Number of People there a horse racing. He challenges every Horse upon the Plain to run. At last they run for 100 Guineas which my Horse wins. Would it not be reasonable that I should have a Proportion of that Prize? Shall the Man that I let him to, run the Hazard of breaking the Neck, or Limbs or Wind of my Horse. Shall he strain, and violently drive him so as uterly to mar him very much; and I have no Recompence at all? By no means. Your Honor cant but see, we have a Right, and I dont doubt youl give it us.
Perhaps some Difficulty may arise in your Honours mind about the Propriety of the manner of laying this Action. It is an Ind[ebitatus] Ass[umpsit] for so much Money had and received by the Defendant, to the Use of the Plaintiffs, and it is alledged that the Defendant promised to render a reasonable Account. But this is the constant form of Suing for things of this sort. If I upon a Reckoning and settlement with a man pay him by a Mistake £20 more than is due to him, I may recover it back, by this Action, i.e. he has had and received so much money, which did not belong to him but to me, so if Money is due to me from another man, and some 3d Person goes to him, and under Pretence of Authority from me, receives that Money, I may have this Action against him. And in general if any man has received Money, which did not belong to him, but does belong to me, I may recover it of him by this Action. Now I think it is plain that Mr. Ward has received the sum mentioned in this Writ, that it did not belong to him but it did of right belong to the owners of the schooner the present Plaintiffs, and therefore it follows that he is accountable to us for it, and I dont doubt your honour will think so too.
1. Second entry so dated. This draft of JA’s argument in Lovell v. Ward was hastily and carelessly written and a few passages remain obscure.
2. Two or three words illegible.