LIEN ON CARGO FOR FREIGHT. antecedent contract between the parties, a lien which grows out of an implied contract, does not arise." The inconveniences of establishing such a lien are very serious. If the shipowner has a lien on the goods, unless the money agreed to be paid at the port of shipment has actually been paid, what, on arriving at the port of discharge, is the master to do? In many cases, probably in most cases, he can have no means of knowing whether the payment has or has not been made; the fact itself may be a matter of uncertainty, depending on the state of disputed accounts between the shipowner and the merchant; or the money, though not paid at the day, may have been subsequently paid; or securities may have been taken, or other arrangements made for giving time. Is the master to withhold the goods from the consignee till by communication with the port of shipment all these matters have been cleared up? This communication may occupy weeks, or even months, and the profit or loss on the adventure, and even the well-being or ruin of the consignee, may depend, from the state of the markets, on the delivery of the goods a day or two sooner or later. Take, again, the case of an indorsement of a bill of lading. We know how largely these instruments are used for the purpose of raising money on the credit of the goods consigned by them. If an indorsee on looking at the bill sees that the goods are subject to the payment of freight, he calculates the value of the goods, and measures his own advances accordingly. So, if he knows that the goods are not subject to freight, and that the bill of lading is what is termed " a clean bill," he is equally relieved from embarrassment; but how can he make advances with any safety, if it be left in doubt on the bill of lading whether the goods are to be liable to charge for carriage or not; if the liability of the goods to the payment of freight depends, not on the agreement appearing on the bill of lading, but on the question whether that agreement has or not been actually performed, and if the title to receive the goods is liable to be suspended till these facts have been ascertained? P. 397. Having again considered the law laid down in How vs. Kirchner, with the most earnest desire to correct our view of it, if we could discover it to be erroneous, we must say that, upon principle, it appears to us to be right, and that we are bound to abide by it. NEGOCIABILITY OF BILL OF LADING. PEASE V. GLOAHEC1 40. A bill of lading for the delivery of goods to order and assigns, is a negotiable instrument, which by indorsement and delivery passes the property in the goods to the indorsee, subject only to the right of the unpaid vendor to stop them in transitu. 41. The vendor, however, may be deprived of this right, 1 Admiralty, 1866 June 23, III Moore N. S. 556. NEGOCIABILITY OF BILL OF LADING. by the endorsement of the bill by the endorsee for valuable consideration, although the goods are not paid for; even if bills have been given which are certain to be dishonoured, provided the indorsee for value has acted bona fide and without notice. 66 THE FREEDOM 11 1 42. The consignee of goods being at the same time endorsee of a bill of lading, is vested with all the rights of suit, and he is subject to the same liabilities in respect of such goods, as if the contract in the bill of lading had been made with himself. The right of suing upon a breach of contract, under a bill of lading, follows the property in the goods therein specified, that is, the legal title to the goods as against the indorsee. HENDERSON V. THE COMPTOIR D'ESCOMPTE DE PARIS 2 43. A Bill of lading in which the words "or order or assigns" are omitted, is not a negotiable instrument. THE CHARTERED BANK OF INDIA, AUSTRALIA AND CHINA 44. A bill of lading was endorsed and transferred in settlement of anterior claims to the appellants, under threats of immediate legal proceedings. The respondent was the original vendor of the goods, and it had been agreed that the buyer should remit him the proceeds of the sale of the goods described in the bill; but his claim was only in equity. The Privy Council upheld the right of the appellants against the equity of the respondent, the consideration given for the endorsation of the bill was established, and the threats of legal proceding were not illegal. SUBSTITUTION OF PARTIES IN CHARTER-PARTY. See CONTRACT: iisdem verbis. WHEN FREIGHT IS DUE. 66 GALAUS " 4 CLEARY V. MCANDREW. THE CARGO EX 45. The freight is due to the master of a vessel, when delay is occasioned in carrying the cargo to its destination, by reason of the arrest of the vessel by order of the Court of Admiralty, at the instance of a bond-holder; the master then 1 Admiralty, 1871 Feb. 10, VIII Moore N. S., 29. WHEN FREIGHT IS DUE. stands in the same situation as if he had been prevented by the default of the owner of the cargo from completing the voyage. LORD KINGSDOWN, p. 229:-The rule of law is very clear, and was not disputed at the Bar-that a master of a vessel is entitled to recover his freight if he has either carried his cargo to its destination, or has been prevented from so carrying it by the act or default of the owner; and if by the occurrence of an accident on the voyage delay be occasioned, the master may claim a reasonable time to carry on the cargo, either in the same ship when repaired, or by transhipping it to another vessel. BLACK V. ROSE 1 46. There was a clause in a charter-party providing, that freight should be paid at the rate therein specified," the cargo to be taken alongside, and to be taken from the ship's tackle at the port of discharge, free of risk and expense to the ship." During the delivery of the cargo, the master required payment of the freight, for the amount of cargo delivered each day over the ship's side into the consignees' boats, and refused to deliver any more cargo, on the consignees refusing to pay on delivery as required. The Judicial Committee maintained the master's pretentions, as on such delivery and receipt of the cargo, the master ceased to be responsible and to have any lien on the goods, he was justified in refusing to discharge the cargo without payment of the freight each day, on the quantity delivered, for his lien would be given up by delivery of the goods. GAUDET V. BROWN. THE "ARGUS" AND THE "HEWSONS." " 47. The freight is earned by the carrier, at the arrival of the goods ready to be delivered to the consignee. SIR MONTAGUE E. SMITH, p. 159.-The master, as a rule, is only bound to deliver cargo upon production of the bill of lading; and it is clear that freight may be earned before actual delivery, if the goods have been brought to the port of arrival ready to be delivered according to the bill of lading. The rule was stated in a judgment of the Court of Common Pleas, delivered by Willes, J., in Dakin v. Oxley as follows: "The true test of the right to freight is the question whether the service in respect of which the freight was contracted to be paid has been substantially performed; and according to the laws of England, as a rule, freight is earned by the 1 Island of Ceylon, 1864 June 30, Il Moore N. S. 277. 2 Admiralty, 1873 May 30, L. R. V. P. C. 134. 3 15 C. B. N. S. 664. WHEN FREIGHT IS DUE. carriage and arrival of the goods, ready to be delivered to the merchant." Arrival, of course, means at the destined port," as the next passage of the judgment explains. See ALIMENTARY ALLOWANCE, SEPARATION: allowance to wife. ALIEN LEGAL STATUS OF ALIENS IN FRANCE. DONEGANI V. DONEGANI 48. The civil status of aliens in France with regard to the right of succession was stated as follows: SIR LANCELOT SHADWELL, p. 82. If a foreigner died, having lands in France, his land would belong to the king, unless he had a child or other descendants born in France; if he left several children, some born in France, others not, those who were born in France would exclude the king from taking; and the consequence was, that as he was excluded, all the children would take in the same manner as if all had been born in France; and if the foreigner left a son born out of France, who had children born in France, in that case the grand children would inherit to the grandfather to the exclusion of their father. To support the above remarks, the following authorities were cited: Denisart, vol. II, tit. Aubains, p. 576, 572, 580; Dictionnaire des Domaines, p. 141; Traité du Domaine, Lefebvre, p. 127, note 6; Poullain du Parc, Principes du Droit français, liv. I, cap. 15, No 9. See also PREROGATIVE OF THE CROWN, DROIT D'AUBAINE. ALIMENTARY ALLOWANCE CANNOT BE COMPENSATED. MUIR V. MUIR 2 49. An alimentary allowance given in a will cannot be the subject of compensation, and this rule applies even where the donee of the allowance is an executor and trustee of the estate and is indebted to the estate. 50. Aliments given by law or by deed are insaisissables; therefore a clause of a will declaring aliments insaisissables is legal. 1 Lower Canada, 1835 Feb. 2, III. Knapp. 63. 2 Quebec, 1873 Dec. 9, L. R. V. P. C. 66. CANNOT BE COMPENSATED. SIR JAMES W. COLVILLE, p. 83: - The question on the first plea is, whether the claim of the plaintiff can, by the law of Canada, be the subject of compensation. The plaintiff's share in the revenue of the testator's residuary estate is beyond all doubt an alimentary allowance; and the authorities cited by Mr. Justice Badgley, and the 1190th article of the Civil Code, establish that a debt arising in respect of an alimentary allowance is generally incapable of being the subject of compensation. This has been admitted. That such a plea would be bad if the question had arisen between the trustees and one of the children indebted to the estate who was not a trustee, is, their Lordships apprehend, too clear for argument. It is however, contented that the fiduciary character of the plaintiff, and the duties imposed upon him by the will, take this case out of the particular rule. Sir Richard Baggallay relied, first, on the direction in the will that the trustees should reduce the residue into possession without delay. He did not go so far as to say that this clause made the realization of the whole residue a condition precedent to the distribution of the annual income of the residue. But he insisted that it expressly imposed upon the plaintiff, as trustee, the duty of bringing the debt which he owed into the common fund, and that his failure to do this suspended his right to receive share of the fund. Another argument was founded on the English doctrine, that a debt due from an executor is assets in his hands. This doctrine, however, if it obtains in Lower Canada, where the functions and powers of an executor are by no means the same as those of an English executor, seems to their Lordships to have little application to the present case, in which, ex concessis, the debt continues to be outstanding, the larger portion of it being the subject of a special contract between the debtor and his co-trustees. In truth the argument for the appellants on this part of the case seems to resolve itself into this: that the plaintiff being a trustee and executor, his claim has lost the immunity from compensation which by the general law it would possess, by reason of the rule (assumed to exist in Lower Canada as in England) that a trustee or executor cannot take anything out of the estate whilst he continues to be indebted to it. But for this exception to the general rule of the law of Lower Canada, no authority has been adduced. That law does not recognize the distinction between law and equity which obtains here. It has now been reduced to a code. The articles of the code expressly state: first, that when two persons are mutually debtor and creditor of each other, both debts are as a general rule extinguished by compensation; and, secondly, that compensation does not take place in the case of a debt which has for object an alimentary provision not liable to seizure. The defendants by their plea invoke the first article, which is wide enough to embrace every case of set-off, whether legal or equitable. And their Lordships cannot see that, by any other article of this code, or otherwise, the Courts in Canada have power upon some supposed ground of equity to engraft an exception upon the exception established by the second article. It is suggested in the appellants' factum filed in the Court of Queen's Bench, that the respondent, being a trustee, might, if his |