
    Hammond against M’Clures.
    August 28, 1790
    "Where a comniun eua-Hoi’ j/avü da.*’ í‘»v the io s of good?; by or itnskufui management.* it h tanta-* im.uiit to a safe (lain evy, and he is entitled to his ¿reiírkt.
    SHORTLY after the preceding cause was determined, Hammond paid off the judgment, and brought this action against the defendants, for the freight of the tobacco.
    
      For the plaintiff, it was urged, that as the defendants in their action against Hammond, had been satisfied for die damages the tobacco had sustained, it was tantamount to a safe delivery ; and there could be no question but what he would be entitled to his freight. It was a well known rule
    
      of lav/, that where any part of a cargo is delivered, freight is due for such part, and if an underwriter paid loss on a policy of insurance, he always kept the premium. From whence it was inferred, that as part of the cargo was de» livered sound, and the rest paid for, which was equal to the delivery, freight for the whole was due, and ought to be paid.
    
      In reply, it was said by the defendants’ counsel, that the jury in calculating their damages in the former action, had not given more than about one half of the value of the tobacco lost; which rendered it highly presumable that they had taken the freight into consideration, and deducted the •amount from the damages the defendants suffered. At airy rate, the loss in the former case was owing to the plaintiff’s own negligence, and to recover freight on that part which he negligently lost, would be suffering him to take advantage of his own wrong.
   Waties, J.

As the damages found in the former action have been paid by the present plaintiff, it is the same as if the tobacco had been delivered, and he is entitled to a recovery of his freight. Had the jury, in the former case, given less damages than the defendants really suffered or proved, it might have been a ground for a new trial on their part; but so far from desiring a new trial, they opposed it.

Verdict for plaintiff.  