8 Bankruptcy of acceptor before delivery of cargo, and Messrs. Zizinia & Co. are at liberty to charter ships before maturity of bill-Stoppage in transitu-Damages for the said quantity at current rates for seller's ac -Trover. ly a charterparty between De M. and the defendant, the shipowner, coals were shipped from a home port to Alexandria, and made deliverable to order or assigns; and it was stipulated, that the freight should be paid on unloading and right delivery of the cargo, less advances in cash at current rates of exchange; one-half of the freight to be advanced by freighter's acceptance at three months, on signing bills of lading; owner to insure the amount, and deposit with the charterer the club policy, and to guarantee the same." The acceptance having been given, the defendant's agent indorsed the bill of lading thus:-" Received on account of the within freight, 3011. 17s. 6d., as per charterparty.' On the ship's arrival at Alexandria, the plaintiff, the purchaser of the coal, and to whom De M. had indorsed bills of lading, intimated that he was prepared to pay the balance of the freight remaining unpaid after deducting 3011. 178. 6d., and applied for delivery of the cargo; but the master, having heard that De M. had suspended payment, refused. The demand was made on the 6th January, 1864, but the bill was not due till the 3rd February. In an action for the conversion of the coals-Held, that the defendant had no lien on the cargo in respect of the amount represented by the bill of exchange; and that the damages were the amount of the bills, and such further sum as represented the loss sustained by the detention of the goods. This was an action brought by the plaintiff to reover 3011. 17s. under the circumstances hereinafter entioned. By the consent of the parties, an order as, on the 1st July, 1864, made by the Hon. Mr astice Willes, that a special case be stated for the pinion of this honourable Court; and the parties preto have accordingly agreed upon the following se: 1. The plaintiff is a merchant residing at Alexania, in Egypt, and the defendant is a shipowner reling at Sunderland, and the owner of a ship, called he Parthian. 2. On the 1st September, 1863, Messrs. Zizinia & ients. "Charterparty. "It is this day mutually agreed between Mrs. Simpson, owner of the good ship or vessel, called The Parthian, A 1, and metalled, master, of the burthen of 284 tons registered, or thereabouts, now in Havre, or on passage thereto, from Queenstown, and William Nicholas De Mattos, Esq., of London, merchant. "That the said ship, being tight, staunch, and every way fitted for the voyage, shall, with all possible dispatch, after discharging present cargo at Havre, sail and proceed to South Dock, Sunderland, and there load in the customary manner from the factors of the said freightor, a full and complete cargo of steam coals; to be loaded in regular turn, not exceeding what she may reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, shall therewith proceed to Alexandria, or so near thereto as she may safely get, and there deliver the same, on being paid freight at and after the rate of 301. (five guineas gratuity) sterling per keel of 21 tons 4 cwt., taken on board, and delivered in full of all port charges and pilotages, harbour dues on cargo, Dover and Ramsgate dues, and all pier and light dues; the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of what nature and kind soever, during the said voyage, always excepted. "The cargo to be delivered afloat, alongside a railway or other safe wharf, steamer, or floating depôt, and to be discharged by the ship over the ship's side, as customary; and no part of the cargo to be used during the voyage, or to be retained for ballast. "Coals for ship's use to be provided at the expense of the owners, and the quantity to be stated on bills of lading. "The freight to be paid on unloading and right delivery of the cargo, less advances in cash, at current rate of exchange. "One-half of the freight to be advanced by freighter's acceptance, at three months, on signing bills of lading. "Owner to insure the amount, and deposit with charterer the club policy, and to guarantee same. "One working day per keel and a half, weather permitting, to be allowed the said merchant (if the ship is not sooner dispatched) for unloading the said ship at the port of discharge (Sundays and holidays excepted), and ten days on demurrage over and above the said lying days, at 61. per day. Messrs. Zizinia & Co. agree to pay, on receipt of e documents (bill of said lading, and policy of insuince), at the rate of (34s.) thirty-four shillings sterling er ton of 20cwt., net cash, deducting the balance of eight payable to the captains at Alexandria, together with a commission of (3%) three per cent. upon the ull (348.), thirty-four shillings per ton; said balance f freight to be paid in cash at Alexandria, at the cur- "The brokerage of 51. per cent. upon this charterent rate of exchange, for three months' bills on Lon-party is due to Smith, Sundius, & Co., ship lost or not on. "The coals to be taken from alongside the ship at he buyer's risk and expense, at the rate of not less han thirty tons per weather-working days, Sundays xcepted. "In the event of Mr. William Nicholas De Mattos eglecting to supply tonnage in the specified time, "The ship to be addressed to freighter's agents at port of discharge, paying usual commission of 21. per cent. lost. The ship and her freight are bound to this venture. All claim for average to be settled in London in conformity with the rules of Lloyds. Penalty for non-performance of this agreement, 7001. "For Mrs. Simpson, by authority of W. Dawson. SMITH, SUNDIUS, & Co., as Agents. W. N. DE MATTOS." 4. In accordance with this charterparty, Mr. De Mattos shipped on board The Parthian 426 tons 13 cwt. of steam coals, being part of 2000 tons he had contracted to sell Messrs. Zizinia & Co, for the plaintiff, as before stated. The captain of The Parthian thereupon duly signed a bill of lading for the said 426 tons 13 cwt. of coals, of which the following is a copy : "Less advance on landing Shipped in good order, and well-con- 426 13-20ths of bound for Alexandria, 161 Newcastle chal coals. い 1.1 "Received by cheque, . £603 15 0 609 0 0 "For W. N. De Mattos, £725 € 1 3076 418 31 21 151 £396 C. A. SPANG 9. On the 28th October, 1863, Mr. De Matts 2dorsed the bill of lading in blank, and handc same, so indorsed to Messrs. Zizinie & Co. tiff's agents, who on the 31st October, 1862 De Mattos the balance of 3967. 88. 5d., app on the aforesaid invoice. 10. Messrs. Zizinia & Co. afterwards forwark said bill of lading so indorsed by Mr. De Mattos to ill plaintiff at Alexandria. drons, or 20 1-8th keels, and weighing 1426 tons 13 cwt., of Davidson's West Hartley, large steam coals, which are to be de-, livered in the like good order and condition alongside any craft, steamer, floating depôt, wharf, or pier, where the ship can be afloat at the aforesaid port of Alexandria, as agent of the charterer may Three tons of coals direct (the act of God, the Queen's ene for ship's use be- mies, fire, and all and every other dangers sides the above. and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, excepted), unto order or his assigns. The ship to be discharged at the rate of not less than 31 16-20ths per working day (weather permitting), and, when required by the freighter's agent, such extra quantity as may be practicable; and if not disof ibm-charged in the time above specified, demurrage to be paid at the rate of 64. per diem freight for the said goods, to be paid as per charterparty, with average accustorned. In witness whereof, the master or purser of the said ship hath affirmed to four bills of lading, all of this tenor and date, the one of which bills being accomplished, the others to stand void. Dated 12. The said ship sailed with the said cargo f in Newcastle, 27th October, 1863. Sunderland for Alexandria, on the 4th November "Weight unknown to William Simpson." 1863, and shortly after she so sailed Mr. De Mattos le 5. The freight on the coals so shipped on board The came and declared himself insolvent, and ultimatej Parthian, amounted at the rate of 301. per keel, re-executed by him, and divers of his creditors, nonon the 4th January, 1864, a deed of inspectorship was served by the charterparty to 6037. 15s., one half of cluding either the plaintiff or the defendant, under and in accordance with the 192nd section of the Ba 11. The defendant was not informed, nor bad any knowledge at any time before the commencement of this action, of the said contract between the p tiff's agent and Mr. De Mattos of the 1st Septem 1863, or of the said invoice, or of the payment of balance appearing due thereon, or of any dealing transactions between the plaintiff or his agents and Mr. De Mattos relating to the premises. 6. Upon the said bill of lading being so signed as aforesaid, Mr. De Mattos, the charterer, gave his ac-ruptcy Act, 1863, but without the written asser ceptance at three months, for 3017. 178. 6d, in favour of the defendant, pursuant to the terms of the charterparty. 7. The said acceptance was dated the 31st October, 1863, and became due on the 3rd February, 1864. Upon its being so given as aforesaid, the defendant's agents, Messrs. Smith, Sundius, & Co. indorsed a receipt on the said bill of lading, of which receipt the following is a copy: "Received on account of the within freight three hundred and one pounds seventeen shillings and sixpence, as per charterparty. approval of the plaintiff or the defendant. The de 1 13. The Parthian sailed for Alexandria, and arrived there with the cargo on the 5th January, 1864, which day the captain of the ship reported her a to the plaintiff, and stated that he would, on the fal lowing day (the 6th), be ready to discharge the carga, 14. The plaintiff, then being the holder of the sud bill of lading, as such indorsee as aforesaid, thereuper took the necessary measures for receiving the car and intimated to the captain that he was prepared to pay the balance of the freight remaining unpad se deducting the 3017. 17s. 6d. referred to in the recip. on the bill of lading. On the following day, name the 6th January, 1864, the captain of The Part who, by letters received by him on his arrival Alexandria, had learnt that Mr. De Mattos had pended payment, refused to deliver the cargo to intiff, except upon the terms of being paid the full ount of the freight, without making any such deetion, or having a guarantee for the payment of same. 5. The master of the said ship thereupon claimed have a lien upon the said cargo for the payment of full chartered freight, and in exercise of such aled lien, detained the said cargo on board the said p until the 20th January, the plaintiff during all time refusing to make such payment, or to guatee or procure a guarantee for the payment to the d master of the full chartered freight. 16. Mr. De Mattos's acceptance was not due till the 1 February, 1864, and was therefore not due at the e when the captain refused to deliver the coals to plaintiff. 7. The said acceptance at this time was in the ads of third parties, and was not paid at maturity, i was taken up by the defendant before the comncement of this action. 8. Upon the 20th January, 1864, Messrs. Barker & of Alexandria, at the request of the plaintiff, and to cure delivery of the cargo to the plaintiff, gave the ster of The Parthian the following guarantee, the ster still continuing his refusal to deliver the cargo hout being paid the full amount of the freight, or ving a guarantee for the payment of the same, as oresaid "Alexandria, Jan. 20, 1864. "Captain Simpson, of The Parthian. "Sir.-In consideration of your agreeing, at our reest, to deliver to Mr. E. Tamvaco the cargo of coals present on board your ship, we hereby undertake 1guarantee that when and so soon as you shall have ivered the said cargo unto the said Mr. E. Tamvaco his order, that we will, on demand, pay or cause to paid to you, in cash, the full amount of freight due I payable to you in respect of said cargo, without deduction whatsoever except commission due. "We remain, Sir, yours obediently, "(Signed) BARKER & Co." 9. The master of The Parthian, upon receiving the guarantee, forthwith commenced to deliver the go to the plaintiff, and completed such delivery on 13th February, 1864. ' "WM. SIMPSON, Master of the Brig Parthian." 22. The plaintiff afterwards, and before the commencement of this action, repaid Messrs. Barker & Co. the amount so paid by them to the said master of The Parthian as aforesaid.eri 23. The average length of a voyage of a vessel of the same class as The Parthian from Sunderland to Alexandria is two months. 24. The questions for the opinion of the Court are— 1. Whether, under the circumstances before set out, the plaintiff was, at the time when the captain of The Parthian refused to deliver her cargo, entitled to have the said cargo delivered to him on payment of balance of the freight, after deducting the 5011. 178. 6d.? 2. Whether, assuming the plaintiff to be entitled to recover in respect of the said refusal to deliver, he is entitled to recover anything as damages but the damages sustained by him, by being deprived of the possession of the cargo from the time of the said refusal to the time of the cargo being delivered to him? If the Court shall be of opinion upon both points in the affirmative, then the plaintiff is to be allowed to sign judgment for the sum of 3117. 17s. 6d., with costs. If the Court shall be of opinion upon the first point in the affirmative, and upon the second point in the negative, then the plaintiff is to be allowed to sign judgment for 104, with costs. • Plaintiff's points: 0. Upon the completion of the said delivery, the ster of The Parthian (Mr. De Mattos's acceptance ing been in the meantime discharged at maturity), lied to the plaintiff for payment of the full chared freight; and upon the plaintiff's refusal to pay same, applied to Messrs. Barker & Co. for payment the same, in pursuance of the said guarantee. The If the Court shall be of opinion upon the first point Messrs. Barker & Co., however, by the plaintiff's in the negative, then the defendant is to be at liberty... tructions, and on his behalf, also refused to pay the to sign judgment as in a case of nonsuit, with costs, ne; whereupon the master of the said ship instied legal proceedings against the said Messrs. Barker Co. in her Majesty's Consular Court for Egypt, at exandria, which had jurisdiction in the said matter, the recovery of the sum due from the said Messrs. rker & Co. to him on their said guarantee; and the 4 cause was proceeded with and duly prosecuted, da day fixed for the trial of the same; but on the before such last-mentioned day the said Messrs. wker & Co., on behalf of the plaintiff, and by his thority, and in discharge of their liability under the id guarantee, viz. on the 7th March; 1864, paid the aster of The Parthian the amount agreed to be paid them under their said guarantee, without making y deduction for the 3011. 178. 6d., the plaintiff at e same time protesting against such a payment being emanded or made; and a copy of such protest was erved on the master of The Parthian. had no lien on the cargo for the 3014. 17s. 6d., the amount of 1. That, on the ship's arrival at Alexandria, the defendant freight in respect of which she had agreed to take, and had taken, the bill of exchange accepted by De Mattos. 21. Upon receiving the amount so paid by Messrs. 2. That the defendant having prò tanto waived her lien by taking the said bill, and the ship having arrived at Alexandria, and the plaintiff's right to the delivery of the cargo having accrued, the defendant's lien in respect of the amount of freight for which the said bill was given could not, and did not, revive upon the insolvency of De Mattos, and the probable or possible future dishonour of the bill. she had received 3011. 178. 6d. on account of the freight, 3. That the defendant having held out to the plaintiff that and the plaintiff having settled with De Mattos on that footing, she cannot now be heard to say she did not so receive it. 4. That the question being, in effect, whether the plaintiff or the defendant is to bear the loss occasioned by De Mattos's insolvency, the defendant, who gave the credit, must be the loser. Mellish, Q. C. (with him Bidder), for the plaintiff, contended that the defendant, by taking the bill for 3017. 178. 6d. for part freight, had waived her lien on the cargo in respect of that freight, and that the refusal of the master to deliver the goods amounted to a conversion. [He referred to Kirchner v. Venus (12 Moo. P. C. 361; 5 Jur., N. S., 395).] 5. That the plaintiff is entitled to recover the aforesaid sum of 3011. 178. 6d., which he was wrongfully compelled to pay in order to obtain possession of the cargo, as well as damages for its wrongful detention; and his right to recover was not, under the circumstances, altered or affected by the eventual dishonour of De Mattos's acceptance. Defendant's points: 1. The defendant contends that the stipulation in the charterparty, that the shipowner should insure the amount of half the freight, clearly indicates the intention of the parties, that the charterer's acceptance should not be a part payment in lieu of freight, strictly so called, but a mere loan by the charterer to the shipowner, not affecting in any way the shipowner's right of lien for the full chartered freight on the arrival of the ship at Alexandria; and that the opposite construction, on which the plaintiff must rely, viz. that the said acceptance was to be a part payment in lieu of freight, strictly so called, and as such a waiver of lien pro tanto, involves the unwarrantable hypothesis, that the charterer and shipowner contracted that the shipowner should do that which it was not legally competent for him to do, viz. that he should insure freight which, ex hypothesi, would at the time of effecting such insurance have been already paid to him, and which, therefore, could be under no risk from any of the perils proposed to be insured against. 2. That the former part of the charter, which prescribes the shipowner's duty, imposed no obligation upon the defendant to deliver the cargo, except on payment of full freight; and that the consignee's liability under the charter as consignee, and consequent right to deduct advances, did not arise until the complete delivery to, and acceptance by, him of the cargo. 3. That on De Mattos's suspension of payment, the defendant was entitled to exercise a lien against the plaintiff for the full amount of the chartered freight. 4. That the term "advances," in the clause stipulating that the freight was to be paid on "unloading and right delivery of the cargo, less advances in cash," is inapplicable to an acceptance which was already, in effect, dishonoured at the time when such deduction had to be made, i. e. upon the unloading and right delivery of the cargo; and that, either on the supposition of the said acceptance being a loan, or of its being a conditional payment of freight in advance, the plaintiff was not entitled to deduct the amount of the said acceptance from the full chartered freight under the name of an advance;" but, on the contrary, there being then nothing to be deducted under the name of "an advance," the plaintiff, by virtue of the claim above mentioned, was bound to pay the full chartered freight. Manisty, Q. C. (with him Lewers), for the defendant, contended that De Mattos had by his bankruptcy vir tually dishonoured the bill, so that if the giving of the bill suspended the remedy for freight, and the right of lien, the moment De Mattos became bankrupt that lien revived; that it was not a payment under protest, but an absolute undertaking to pay the whole freight; that he relied on the doctrine of stoppage in transitu; and if damages should be helicoverable, that they could not be assessed at more than 107. [He referred to the cases cited in the nous to Marriott v. Hampton (2 Smith's L. C. 356, 5th ed [Willes, J., referred to Alsager v. The St. Katheri Docks Company (14 M. & W. 794).] WILLES, J.-The Court has had an opportunity of considering this case since the argument was conmenced, and the result is, that we think our judgment ought to be given in favour of the plaintiff. The first question is, whether the shipowner, having regard to been entitled to exercise a lien against De Mattos, unde these circumstances, for the full amount of the chartered freight; and that the defendant's rights against the plaintiff, as indorsee of the said bill of lading, were, on the said arrival of the ship at Alexandria, by virtue of the Bill of Lading Act, 18 & 19 Vict. c. 111, co-extensive with her rights against De Mattos; and that she was, at the same time, accordingly entitled to exercise a co-extensive lien against the plaintif on his refusal to pay the full chartered freight. 7. That the said guarantee so given as above mentioned operated as an accord and satisfaction of all then existing claims on the part of the plaintiff against the defendant in respect of the said freight and detention, and amounted to an agreement on both sides that the cargo should be delivered to the plaintiff without prejudice to his liability for full frezh, and that Barker & Co. should hold the full freight in their hands until the plaintiff's liability to pay the same was de cided by a competent tribunal; and that the payment by the plaintiff under pressure of legal proceedings taken to detes mine such liability was an admission of the defendant's right to full freight, by which the plaintiff is now concluded. 8. That the coals carried by the defendant's vessel wart on their shipment at Sunderland, the plaintiff's coals, and the full freight thereof was therefore primarily the plas debt, and was on the 6th January the plaintiff's debt, at withstanding that De Mattos's bill was still running: any liability of De Mattos under the charter, or acceptance, was only collateral to the plaintiff's prim bility, and that the defendant's remedies thereon were i substitution of, but only collateral to, the defendants and other remedies. 9. Assuming the detention of the cargo, from the ith t the 20th January, not to have been justified on any of grounds above mentioned, the defendant contends that the sum of 3011. 178. 6d., paid under the said guarante leged excess of what was due for freight on the arrival de 5. That even assuming the said acceptance to have been a ship at Alexandria, form no element of the damages part payment of freight in advance, nevertheless, express re-recoverable from the defendant in respect of the s ference being made to the terms of the charterparty, both intention. the indorsed receipt and in the bill of lading itself, the plain- First, because the full amount of the freight had, the tiff had due notice, before the indorsement of the bill of lading time of the payment under the guarantee, become paraba to him, that the said receipt was not a receipt for a cash pay- by the plaintiff, the dishonour of the said acceptance bas ment in satisfaction and discharge of the chartered freight, preceded the date of such payment, and liability according but only a receipt for a conditional payment, liable to be de- to the full chartered freight had revived. feated by the dishonour of the bill, or by the release and dislis-Secondly, because the said guarantee was given witc charge of the charterer therefrom by bankruptcy or other protest, and in the absence of any suggestion to the contrary, wise; and that the said receipt, therefore, could not operate must be taken to have been made with full knowledge of to curtail the liability, unless the defendant took upon him- the facts; and the payment which was so made under the su self, as indorsee of the said bill of lading, to pay the char- guarantee stands in the same position as a payment made tered freight, whatever such freight might prove to be. without protest, and with full knowledge of all the facts 6. That De Mattos would not have been entitled, on the arrival of the ship at Alexandria on the 5th January, to deduct the amount of the said acceptance from the full chartered freight, inasmuch as he had on the previous day, viz. Fourthly, the plaintiff's repayment to Barker & Ca, ef the the 4th January, 1864, executed a deed, under the 192nd said amount (which repayment alone gives a colour to section of the Bankruptcy Act, 1861, whereby he was effec- claim for damages in respect of the said sum) was to tually released from all liability to be sued on the said ac-motely and indirectly consequent upon the defendant's ri ceptance, the said deed operating by relation to the date of to deliver the cargo to form an element of damage in resp the delivery of the same. That the defendant would have of such refusal. 1 Thirdly, because the payment was made after, and in cosequence of, the commencement and prosecution of legal pro ceedings instituted for the enforcement of the same. e insolvency of De Mattos, had a lien on the goods t only for the half freight payable at Alexandria, but o for the half which had been paid (I attach no speic meaning to this word) by bill of exchange at three onths, stipulated for in the charterparty in these ms:-"The freight to be paid on unloading and ht delivery of the cargo, less advances in cash at rrent rates of exchange; one-half of the freight be advanced by freighter's acceptance at three nths, on signing bill of lading; owner to insure the ount, and deposit with the charterer the club poy, and to guarantee the same." The vessel loaded, id proceeded on her voyage. The acceptance which d been given fell due on the 3rd February, 1864. e vessel arrived at Alexandria early in January. the meantime, i. e. between the giving of the bill 1 the arrival of the ship, De Mattos had bene bankrupt, and it may be assumed that the bill uld not be honoured in full, but that a dividend y would be paid from his estate. Before the bill ame due, the consignee having received the bill of ing, with an indorsement by the shipowner, that f freight had been paid as per charterparty, deaded delivery of the cargo, and offered to pay the ainder of the freight. The master having been inmed of the insolvency of De Mattos, refused to deer the cargo except on payment of the full amount the charter freight; so that the owner was to have t only the conditional payment already made by the arterer's acceptance, but also the same amount in cash. he master then refused to deliver the goods, under cirimstances in which a jury would undoubtedly find the fusal amounted to a conversion by the master, while ing in the course of his employment as agent for > owner. Matters stood still for eight or ten days. e master then consented to give up the goods on reving a guarantee from a third person of credit. e plaintiff accordingly procured Barker & Co., his nt, to give the captain an undertaking, that, on ivery of the cargo to the plaintiff or his order, they uld pay the full freight due on the cargo. The trantee having been given, the delivery commenced, it was completed on the 13th February; the bill ing in the meanwhile, 3rd February, become due I been dishonoured. The dishonour of the bill ld not be relied on as creating any new right, for re had previously been a demand of the cargo, and fusal. Now, I own that Mr. Manisty's argument upon the other words in this clause, as respects the payment of half the freight, has had sufficient effect upon my mind to prevent me from giving-it would be rash and unnecessary to give, and, after the argument, I should not like to give, without further consideration -an opinion upon the question, whether it was properly a loan to be restored in cash, or a bill, not to be paid in the event of the amount of the loan not being earned in freight, adopting Mr. Manisty's nomenclature; or whether, in such an event, the loss was to fall upon the charterer, he being satisfied with the security of the club policy, which the owner of the vessel had an opportunity of entering into, and with a guarantee of the shipowner of the solvency of the club. I should like to consider, if I had to determine that question, whether or not the true result of that may not be, that the freight, to that extent, is at the risk of the shipowner, or whether it may not rather be (which is the tendency of my opinion at present), that it is to be at the risk of the person who advances it, subject to his being reimbursed only in the event to which the club policy would apply. But I give no opinion upon that point, because I think credit was given to the charterer; that credit did not expire till the 3rd February, and the vessel arrived, and a demand was made, before that time. Unless, therefore, the plaintiff's rights were varied by what took place at Alexandria, I am of opinion that he was entitled to bring trover for a conversion; and there is no doubt that a jury would have found a conversion by the captain as servant of the shipowner. Now, & person whose goods are detained by another, upon an unfounded claim of lien, may, without sacrificing his right to contest the claim, either in whole or in part, pay the amount claimed, and take away his goods. The distinction between a contract which can only be avoided by duresse, or danger to life or limb, and payment, or a transaction in the nature of payment, where the money may be reclaimed if it has been obtained by an improper detention of goods, is shewn in numerous authorities. Some of these are referred to, and the principle is explained, in Byles on Bills, p. 109, note (b), 8th ed. The question between Barker & Co. and the defendant was, whether Barker & Co. had guaranteed the payment of the whole of the charter freight. I think that they did guarantee this, and that the action against them was properly abandoned. But it is said that, having regard to the circumstances of this case, the money cannot be recovered back. The intention of the parties, however, was clearly that the master should not be in a better position by taking the guarantee than he would have been by the receipt of the cash. The master then insisted on being paid the full ight. Barker & Co. resisted the demand, and an on was thereupon commenced in the Consular art, but eventually Barker & Co. paid the amount the bill under protest. The question is, whether money can be recovered from the shipowner; and hink it can. To ascertain this we must look first at >> charterparty, and see whether the master had a Primâ facie, in an action for the conversion of ht under it to insist on his lien; and, secondly, as-goods, the plaintiff has a right to recover their value; ning that the lien did not extend to the full freight, but if the goods have been given up, that circumstance must inquire whether subsequent transactions have is taken into account in reduction of damages. Here ten away the rights of the consignee in whole or is a middle case. The goods have been given up, but in a part. As to the construction of the charterparty, I course of dealing by which the plaintiff is 3017. 178. 6d. i clear that the words "in cash" are not to be out of pocket. A jury would find that the goods were astrued as qualifying the word "advances," but are not given up in such a manner as to reduce the dabe read in connexion with the subsequent words, mages. I therefore think our judgment should be for it current rate of exchange." If we were to read, the plaintiff, and for the larger sum. ess advances in cash," then the words could not be apied, there being no stipulation in the charterparty for vances to the master or "for ship's use." The term dvances" must be referred, therefore, to the advances entioned in the instrument; and in the very next ause we have the words "one-half the freight to be Ivanced" &c. Then, reading the words of the disputed ause in that light, the whole document becomes senble and consistent. BYLES, J.-I am of the same opinion. I agree with Mr. Mellish, that it is unnecessary to draw any fine distinction as to the word "freight." Whatever it means, it is clear that if a bill of exchange be given for freight, and such bills become due after the determination of the voyage, in the contemplation of the parties, no lien exists. (Horncastle v. Farran, 3 B. & Al. 497; Alsager v. St. Katharine's Dock Company, 14 M. & W. 794). Here, then, was an advance in the nature of |