question now submitted to them had been decided; but I think that now we are not deciding the same question as we were then. On the other points, I concur with my Brother Coltman. WILLIAMS, J.-I am of the same opinion, and think that this case falls neither within the principle nor the application of the rule which governed former decisions on this subject.—Rule absolute*. SITTINGS IN BANC AFTER MICH. TERM. COCKBURN and Another . ALEXANDER.-Dec. 8. Ship-Charterparty-Freight-Damages-Parol Evidence. A Ship was chartered to bring Home a Cargo of "Wool, Tallow, Bark, or other legal Merchandise," Bark not to exceed Fifty Tons, Tallow and Hides not to exteed Eighty Tons," and to deliver the same, on being paid Freight as follows:-For Wool, One Penny Half penny per Pound pressed, and One Penny Halfpenny and One-eighth of a Penny per Pound unpressed, for the other Three Articles separate Rates were fized, and the Captain was to sign Bills of Lading at any Rate of Freight, without Prejudice to the Charterparty. The Ship returned with a full Cargo, consisting of a small Portion only of Wool, and the Residue, Tallow, Bark, Hides, and other legal Merchandise:-Held, First, that the Charterer was at Liberty to ship a full Cargo of legal Merchandise other than the specified Articles; but that the same Freight was to be paid as if the Cargo had consisted entirely of those Articles according to the Terms of the Charterparty. Secondly, that the Shipowners were at least entitled to the mallest Amount of Freight so payable, as Damages for a Breach of Contract, in not loading according to the Charterparty. Thirdly, that there was no Ambiguity upon the Face of the Charterparty to admit Parol Evidence for the Purpose of shewing who was to pay for pressing any Wool that might be shipped. Assumpsit on a charterparty. The declaration stated, it was agreed between the plaintiffs and defendant, that the ship Parkfield, being tight &c., should, with all convenient speed, having liberty to take out cargo for the ship's benefit, for the Cape and Port Philip, sail and proceed to Hobson's Bay, Port Philip, or as near thereunto as she might safely get, and there load from the factors of the said defendant a full and complete cargo of wool, tallow, bark, or other legal merchandise the quantity of bark not to exceed fifty tons for broken stowage, without the consent of the master, and the quantity of tallow and hides not to exceed On a subsequent day, Phipson applied to the Court that a form of writs of execution might be ordered by the judges, for the purpose of giving effect to the stat. 7 & 8 Vict. c. 110, s. 68, as no forms under that section had yet been promulgated by the judges. The 68th section, which gives power to the Court to make an order for execution to issue against a shareholder without a scire facias, provides, that, "in such cases, such form of writs of execution shall be sued out of the courts of law and equity respectively, for giving effect to the provision in that behalf aforesaid, as the judges of such courts respectively shall from time to time think fit to order." WILLIAMS, J., referred to Erdy v. Martin, (6 Mee. & W. 480), where, in reference to a similar provision contained in the 1 & 2 Vict. c. 110, a party was held at liberty to frame himself such writ as he required under that statute, before the judges had framed the new forms of writs for that purpose, and which they were empowered to do by that statute. THE COURT thereupon recommended Phipson to adopt the course of framing himself the proper form of writ, as being, under the circumstances, the most convenient course to follow. eighty tons-not exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and, being so loaded, should therewith proceed to London, in any dock the defendant might appoint, or as near thereunto as she might safely get, and deliver the same, on being paid freight as follows:-For wool, one penny halfpenny per pound pressed, and one penny halfpenny and one-eighth of a penny per pound unpressed, gross weight; tallow, 31. per ton of 20 cwt.; bark, 47. per ton of 20 cwt.; and hides, 27. per ton of 20 cwt., all gross, (the latter not to exceed 20 tons, without consent of the captain), in full of all port charges and pilotage, as customary, the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigations, of whatever nature and kind soever, during the said voyage always excepted. One-third of the freight to be paid in cash on unloading and right delivery of the cargo, and the remainder in cash or by approved bills at two months following. And it was thereby then further agreed, by and between the said parties, that ninety working days at Port Philip should be allowed the defendant, if the ship should not be sooner despatched for loading, and ten days on demurrage over and above the said laying days, at 107. per day, and that the penalty for non-performance of the said agreement should be 30007.; that the ship should be reported at the Custom-house, London, by Co.; that the ship should be addressed to the defendthe brokers therein described, as, to wit, Messrs. F. & ant's agents at Port Philip therein described, as, to wit, Messrs. B. & Co.; that the cargo should be brought alongside the vessel at the defendant's risk and expense, stowed and discharged according to the custom of the port; that the captain should sign bills of lading at any rate of freight, without prejudice to the charterparty; that, in the event of the defendant's agents not having sufficient wool, they should be at liberty to load 100 tons of bark in lieu of 50 tons, upon paying an additional 10s. per ton for the whole. And it was thereby then further agreed, that the vessel should not sail from London later than the 30th day of September then next following, to wit, the 30th day of September, a.d. 1844; that the defendant should not be at liberty to ship merchandise in the cabin without permission from the captain; and that the ship should not be detained at the Cape later than ten days, wind and weather permitting. The declaration then averred mutual promises and performance by the plaintiffs of all things to be by them performed. Breach by the defendant, that he did not load the vessel with a cargo of wool, tallow, bark, or other legal merchandise, at Hobson's Bay, Port Philip, according to the tenor and effect of the charterparty. The declaration also contained a count for freight, and for money paid, and on an account stated. Plea: payment of ls. into court. Replication: damages ultra, and issue thereon. The cause was tried before Wilde, C. J., at the sittings in London after Michaelmas Term, 1847, when it appeared that the ship Parkfield sailed to Port Philip, and arrived there on the 9th February, so late in the wool season that the defendant's agents were unable to provide a full cargo of wool. They accordingly made an arrangement with the captain, expressed on both sides to be without prejudice to the charterparty, under which the ship went round to Sydney, and ultimately returned to London, on the 31st October, 1845, with as full could carry, consisting of 500 bales of wool, weigha cargo as, considering its nature and stowage, she ing 60 tons, of tallow 260 tons, of bark 144 tons, and the residue, gum, horns, hoofs, bones, treenails, skins, and wood. By the particulars of demand 2004 bales of wool, average weight 280 lbs. per bale, at the plaintiffs claimed freight, as per charterparty, on 14d., 100 tons of bark, 60 tons of tallow, and 20 tons of hides. The defendant contended, that, under the charterparty, he was at liberty to ship any legal merchandise; and, in case it did not consist of the enumerated articles, he was to pay freight after the rate current at the port of lading, and not necessarily a freight calculated as upon a cargo of wool. A verdict was taken, by consent, for the plaintiffs for 17407., and it was agreed by the counsel on both sides as follows: That the verdict should be subject to the opinion of the Court, whether the construction placed by the plaintiffs upon the charterparty was correct, such construction claiming freight on all but the enumerated articles and quantities, as a wool freight. If the Court should be of opinion, that such construction was incorrect, then the Court was to declare on what principle freight was payable. The Court was further to declare on whom, if upon any one, the expense of pressure was to fall; and if such question could not be determined upon the charterparty itself, then to declare what question of fact or usage arose. And it was further agreed, that the question of damages, and also any question of fact or usage between the parties declared by the Court to arise, but with respect to such questions only, was to be referred to a gentleman at the bar, and the plaintiffs were to have liberty to move on the rejection of evidence. Channell, Serjt., in the following Hilary Term, obtained a rule calling upon the plaintiffs to shew cause why the verdict should not be set aside, and instead thereof a nonsuit be entered, or why this cause should not be referred, pursuant to the terms agreed upon between the parties on the trial; against which, Byles, Serjt., Martin, Q. C., and J. Wilde, (Dec. 8), shewed cause. The whole question in this case turns upon the construction to be put upon the charterparty. First, it is evident, upon the face of it, that the parties intended to fix the rate of freight in the document itself. Their object was to obtain a cargo, consisting of a certain quantity of wool; and a restriction was put upon the quantities of certain other articles, not from any objection to the articles themselves, but to ensure the bulk of the cargo being wool; at the same time, there must always be a limited portion of other goods as dead weight, for the safe navigation of the ship. It is clear, also, that the bulk contemplated was wool, from the stipulation, that 100 tons of bark might be shipped in the event "of there not being sufficient wool." Then the words are, "that the ship is to deliver the same on being paid freight as follows," and the rates are fixed. Such a construction must necessarily be put upon this clause, which fixes the amount to be paid, as will make it co-extensive with the clause which fixes what is to be shipped; and thus the meaning is, that the plaintiffs are to be paid for the wool brought home after the rate for wool fixed in the charterparty; for the specified quantity of bark, tallow, and hides, after the rate fixed for them; and for the residue of the cargo as if it had been wool. If this is not the true construction, and the defendant was at liberty to bring home a full cargo of other legal merchandise, and have it delivered to him, on paying for it the rate of freight current at the port of lading, all these stipulations in the charterparty are perfectly useless, and the only advantage the plaintiffs get by entering into it is, that a cargo of something is to be brought home, and possibly something the freight for which would yield them a very inadequate remuneration. Besides which, it can never be contended, that the charterparty only intended to fix the freight to be paid for the least important items in the cargo, and to leave the freight for the great bulk of it unfixed. Secondly, the authorities are in favour of the construction here contended for. The case of Moorsom v. Page, (4 Camp. 103), a Nisi Prius decision, upon which the defendant will rely, decided only this, that shipping two out of three enumerated articles was a fulfilment contract which required the three articles or ot goods to be shipped. And Irving v. Clegg (1 B N. C. 53) recognises that ruling. But, admitting t the defendant, under the words "other legal merch dise," was at liberty to ship goods other than th specified, the question still is, what freight is to be p for them? The plaintiffs contend that the same frei is to be paid as if the ship had come home empty. Thomas v. Clark, (2 Stark. 450), the charterparty s cified a variety of articles, and freight was to be paid each separately by weight. The ship came home emp and the defendant contended, that the proper measu of damages was the amount to be paid as freight, su posing the vessel to have been laden with one of t specified articles which would have yielded the low amount of freight. But Abbott, C. J., told the ju that the proper course would be to estimate the freig by means of an average, so as to take neither t greatest possible freight nor the least. The plaintif however, here, do not ask the Court to go so far a that; they are content to receive what the defenda in Thomas v. Clark was content to pay. Capper Forster (3 Bing. N. C. 938) recognises the rule as lai down in Thomas v. Clark, and is a direct authority i favour of the plaintiffs. There, the words "other law ful merchandise" preceded (in the present case the follow) the recital of the en umerated articles, whic were to be brought home at rates of freight specified fo each. Those articles were not provided by the char terer, and the Court held, that the freight was to be paid upon average quantities of all the articles, whether the ship returned empty, or laden with a cargo of articles different from those enumerated. As to the words "other lawful merchandise" meaning goods ejusdem generis with those specified, there is no difficulty. [Maule, J.-" Other legal merchandise" means merchandise having that sort of legality which belongs to wool, tallow, and bark.] If the goods bear an analogy to the specified goods, they are to be paid for after the rate stipulated for those to which they bear an analogy: if they bear no analogy, then they are to be paid for as if the ship had come home empty, or as if the enumerated articles had been shipped; they must be ejusdem generis only to this extent, viz. that they must pay the same amount of freight to the shipowner. Assuming, then, the plaintiffs are entitled to be paidas for a wool freight, is it to be as for wool pressed or unpressed? So far as the amount of the verdict is concerned, it is immaterial, for a higher rate is to be paid for the unpressed than for the pressed wool, as less of the former could be carried than of the latter, and an cargo of one or the other would pay nearly the same freight to the shipowners. Channell, Serjt., Bramwell, and Sir Eardley Wilmot, i in support of the rule.-The only plea upon the record is payment into court of 1s. The breach of contract is, therefore, admitted; and the question is, to what damages are the plaintiffs entitled?-and the measure of them will be the amount of freight to which they were entitled by the charterparty. First, the cases of Moorsom v. Page (4 Camp. 103) and Irving v. Clegg (1 Bing. N. C. 53) establish, that, under the words "other legal merchandise," the defendant might have brought home a cargo not consisting of the enumerated articles. [Maule, J.-That is hardly denied by the plaintiffs. In Capper v. Forster, recognising Thomas v. Clark, the words" or other legal merchandise" do not occur in the charterparty. [Wilde, C. J.-It was agreed, that the ship should receive and take on board whatever lawful goods and merchandise the charterer might cause to be sent alongside.] It appears, at all events, from the judgment of the Court, that the inten tion of the parties was, that the ship should bring home a cargo consisting of all or some of the enumerated 1 articles. Here it was not necessary that the ship should charterer and the owner? It was to be without prejubring home a single article of those enumerated. The dice to the charterparty-referring to the charterparty principal matter decided in Capper v. Forster was, that as to the place where was to be found the rule applicathe defendant had availed himself of a privilege, viz. of ble to the payment for goods shipped under a bill of filling up his cargo at St. Mary's, to a greater extent lading which prescribed some other rate of freight. than the charterparty contemplated. It is evident that Now, the charterparty provides that the ship should that does not touch the main point in this case. Se- go out and be loaded with a full and complete cargo of condly, the defendant is not bound to pay a wool wool, tallow, bark, or other legal merchandise, restrictfreight; had that been the intention of the parties, they ing the quantity of bark to 50 tons for broken stowage, could have said so in so many words. The rate is the quantity of tallow and hides to 80 tons; and the whole entirely confined to certain enumerated articles; as to cargo is to be delivered on making a certain payment. the rest of the cargo, the charterparty is silent. The If that payment is expressly mentioned in the charterdefendant is, therefore, to pay for that portion a reason- party, it is difficult to suppose that it is to be calculated able quantum meruit freight, or one calculated at the by some other rule than that which the charterparty current rate of freight from the port of lading to Lon- provides, the words being, "on payment as follows." don. But, thirdly, assuming the plaintiffs to be right, The defendant here requires, that the homeward cargo and the defendant bound to pay a wool freight for the shall be delivered to him, not "on payment of freight other legal merchandise, then the damages are calcu- as follows," but on payment of freight after some lated on an erroneous principle. The defendant is en- other calculation. It is said, a reasonable freight; but titled to reduce the damages by the actual amount of what is a reasonable freight? If a ship should happen the costs of pressure of the wool. By delivering a cargo to be at Port Philip seeking a cargo, not having gone of unpressed wool, so much as would fill the ship, he there expressly for that purpose, or under any contract, would have complied with the contract. The custom or calls there on her way home from India to do the of the port is, that the shipowner incurs the expense of best she can, the current freight at that time might pospressing; at all events, it might be a gain to both sibly be a reasonable freight. But would it be a reaparties to carry the wool pressed, and, if so, both ought sonable freight for the owner of a ship, which went out to bear the expense; but, according to the plaintiffs, from England without a cargo, to receive one at Port the defendant is to send unpressed wool, and they are Philip, and to bring it home? What, therefore, is to to press it, and charge the defendant with the whole be the test of reasonableness in such a case? It may be cost. The most favourable view which the plaintiffs said, a reasonable rate of freight at the place; but that are entitled to take is, that the contract will bear their means to ships which happen to be there, and which do construction as well as the defendant's; if so, the ques- not go out from this country in anticipation of being tion ought to be decided, on additional evidence as to provided under a contract with a cargo. Reasonableness custom or otherwise, by a jury, or by reference, as thus becomes too uncertain a test to apply to this case. agreed upon by the parties. At Nisi Prius parol evi- The cargo is to be delivered "on payment of freight as dence is admissible in such a case. (Robertson v. French, follows." These words precede a specification of certain 4 East, 130; Robertson v. Jackson, 2 C. B. 412). articles, for which a certain amount of freight is to be paid; and (whether the words "other legal merchandise" mean goods ejusdem generis with those beforementioned, or lawful merchandise, without reference to any description of goods whatever) no provision is made, nor does the charterparty contemplate any agreement, for freight to be made at Port Philip. And it is obvious that if a ship is to take goods thence, to be brought home upon reasonable freight, that the freight would be agreed upon there, and not left to be agreed upon when she returned home. That is not the commercial usage in adjusting freight. It appears, then, that the parties here have agreed that the ship should go out; that she shall be fully loaded with certain goods, (that is, either the specified goods and others of the same kind, or any others), and she is not so loaded. How, then, are the damages to be calculated for the breach of contract? To ascertain this, we must endeavour to find how the parties would have settled if a cargo had been brought home according to the charterparty. That, it appears to me, states all the payments to be made: none other are anticipated or left open; for it says, "payment to be made as follows;" and then the rates are given, to be calculated according to a certain rule. And, according to commercial usage, the charterparty would be so framed as to enable the shipowner to judge whether the voyage was worth his undertaking or not; and it would not leave it open to the charterer to bring home goods, the freight for them to be paid according to some unprescribed rate. It seems to me, therefore, that though the shipper might bring to the ship any goods, (taking the largest construction of which the words are capable), yet that the rate of payment on which the cargo is to be delivered is distinctly described in the charterparty. Then the plaintiffs say, "Calculate the rate of freight according to the terms of the charterparty in the manner least favourable to us and the most favourable to the shipper, and we are content to WILDE, C. J.—It seems to me, upon the best consideration I can give, that this rule ought to be discharged. This charterparty appears to have been made to attain two objects: the one, to secure that the ship should be fully loaded; the other, to ascertain what that should yield to the shipowner. In the case of a ship going out from England unprovided with an outward cargo, to a very distant port, to fetch a homeward cargo, it is quite unusual, and I never knew of an instance in which the charterparty, which stipulated only for the latter, did not prescribe or seek to prescribe the freight to be paid in such a form and manner as to enable the shipowner to calculate what should be the profits of the cargo so to be brought home to him; and if, on the face of the instrument, it appears that labour has been bestowed with a view to prescribing certain rates of freight or modes of calculation, one would not expect to find any provision whatever omitted for that which might constitute the greater part of the loading of the ship. Still, further, if provision is made prescribing the rate of freight to be paid for certain goods, and the shipping of other goods is contemplated by the charterparty, and no stipulation is to be found as to the payment of freight for them, one would expect that the prescribed rate of freight was, in some measure, to be the rule by which to ascertain what proceeds the shipowner was to receive for bringing home these other goods with respect to which no rate was prescribed. In this charterparty the ship is to sail out without the charterer providing an outward cargo. There is a stipulation applicable to freight, and also a stipulation that the captain may sign bills of lading at any rate of freight-no matter what, but that that shall not affect the rate in the charterparty. Now, if he is to bring home unenumerated goods, how happens it that the charterparty provides for a bill of lading that should specify a certain rate of freight in respect of those goods which was not to be the rule of payment between the be paid according to that calculation. Ship the permitted quantity of tallow, of hides, and of bark, and give us the freight as upon wool for the residue, because upon the face of the charterparty a cargo of wool was contemplated; wool, therefore, will furnish the basis of the calculation." The plaintiffs appear to me at least entitled to that for which they contend, construing the charterparty independently of authority. But I think the construction which I have just stated is according to a rule and an authority which ought now to be considered as established. In the case of Thomas v. Clark and Todd, which was decided in the year 1818, thirty years ago, a certain rule of construction was laid down, and has been recognised since; and I apprehend that there is nothing of more importance to commerce than that the rules of law relating to the construction of commercial instruments should be made as certain as possible. It was said in one of the insurance cases not long ago, in this court, that "the increased value given to the owner's goods by being carried from one place to another would be insured under the name of freight, because it had been so decided before, for such a period of time that it might reasonably be supposed, that persons entering into policies of insurance must contemplate such a construction." So I say here, that nothing can be more mischievous than to make a rule appear uncertain (except on very substantial grounds) which has been laid down for such a length of time, that the public, interested in the branch of commerce to which it relates, may be supposed to be aware of it. Now, in Thomas v. Clark, it was laid down, that the freight must be estimated by an average on the enumerated articles. The plaintiffs here do not require us to go so far as that, but claim, within the authority of that case, freight upon a construction less favourable to themselves. The principle of that case is afterwards stated, and the case cited as an authority for that rule, in Lord Tenterden's Book on Shipping, (p. 278), published twenty years ago, and which, as is well known, is in very general use, not only amongst lawyers, but amongst the commercial men of this city. Then comes the case of Capper v. Forster, decided in this court, in which Thomas v. Clark was reviewed, and the authority of Lord Tenterden's Book on Shipping referred to by Tindal, C. J., in the following words:"The opinion expressed by the very learned and accurate writer of the law of ships and shipping, referred to in the course of the argument, and the case of Thomas v. Clark, the decision of which was not appealed from by any motion to the court, appears to us to lay down and establish a rule which is at once just and reasonable, and may fairly be inferred to meet the intentions of the contracting parties." That decision was eleven years ago. It is upon these cases that I have formed my opinion in the present instance; and it appears to me, undoubtedly, that the parties here have intended that we should not have to inquire into any reasonableness of freight, or into any circumstances dehors the charterparty. The charterparty gives the rule-ascertain what is the capacity of the ship, and then, in the case of a breach of contract, calculate the damages upon the footing that the defendant would have performed the contract in the way most favourable to himself, and least favourable to the shipowners. I think, therefore, that the principle contended for on the part of the plaintiffs is the correct principle; and that the amount of the verdict which they have obtained ought not to be disturbed. With respect to the cost of pressing, the question for the Court is, whether it should be sustained by the shipowner or by the shipper. If by the former, then the charterer or shipper ought to have a reduction in respect of the quantity of wool upon which freight is allowed, which, not being shipped, of course was not pressed. The charterparty appears to me to be totally silent on the subject. There is nothing on the face of the charterparty which will enable the Court to come to the conclusion who ought to bear it. There is no ambiguity: the subject is wholly passed by-left, as it seems to me, to be decided by other circumstances, and not at all entering within the terms of the contract between the parties. No doubt is raised, to admit of parol evidence to explain it ; and, indeed, were parol evidence admitted in this case, it would be, not to remove or to explain, but to create a doubt. There is no ground to disturb the verdict on the latter point, and the rule must be discharged. MAULE, J.-I also think that this rule ought to be discharged. The charterparty is not without some difficulty, because, although it, as I think, expressly permits the charterer to furnish a cargo of other goods besides wool, tallow, hides, and bark, it does not, in express terms, provide how freight is to be paid for the other goods; at the same time, it mentions so much per ton for those enumerated. Probably one reason why that provision might be omitted is, that it would have required a speculation upon an immense variety of goods that might be shipped. The question, however, is, whether, from the words of the express stipulation, or the reasonable intendment of the words, one can see what the charterparty intended should be paid for freight in the event of other goods not enumerated forming the cargo; and I think we can see that. The shipper stipulates to furnish a full cargo-upon the whole matter, I think, a full cargo of goods of any kind he pleases, provided he does not ship more than 80 tons of tallow and hides, or 50 tons of bark, which might be increased to 100 tons under circumstances which it is not necessary to notice here; and he has a right to have that cargo delivered to him on payment of freight as follows." Now, I think that, inasmuch as it is to be delivered "on payment of freight as follows,' if the charterer pays the freight as follows, he has a right to have the goods delivered to him; and if there is nothing that follows as to the payment of freight, he would have a right to have the goods delivered to him without payment of any freight. For instance, if you could so construe" payment of freight as follows" to mean that there was no freight at all provided for a particular kind of goods brought home, then he would have a right to insist on having those goods delivered to him without paying any freight; because "on payment of freight as follows" seems to me to exclude any other payment of freight except as follows. Suppose the cargo to consist of unenumerated merchandise, with the exception of 50 tons of bark: if" on payment of freight as follows" means on payment of freight upon the bark only, I apprehend, in that case, the shipper would have a right to have his whole cargo, 400 or 500 tons of other goods, tendered to him, on payment of the stipulated amount of freight upon the 50 tons of bark only. Now, I do not think that could have been the meaning of the parties; at all events, that clause, I think, effectually excludes any reasonable or any implied freight-any freight, in short, not provided for by the charterparty, because he is entitled to have the goods tendered to him on payment of any freight that is provided as follows, whether reasonable or not; and I cannot conceive, it was intended that the whole cargo of the merchandise should be delivered without payment of any freight for it. I think those words must be construed, if they will bear that construction, so as to provide for the freight of other goods generally; and I think they will bear that construction. Considering that we are dealing with a mercantile instrument, in which the substance of the matter, and the evidently predominant intention of the parties, is, that the cargo is to be delivered, and freight to be paid for it, we are not constrained to such a nicety of construction as would be applied to instruments of a more regular, therefore, on the ground that the price of pressing should be deducted, of making any alteration in the verdict, or leaving the matter to be discussed or decided upon by any one else. legal, and strict description, such as conveyances, instruments of title, pleadings, and documents of that kind. I think, therefore, that the proper meaning of that clause is, that, on a full cargo being delivered, such a freight shall be paid as shall be a freight of the WILLIAMS, J.-I am of the same opinion; but I must same kind and amount as the freight of a full cargo of confess, that, but for the case of Capper v. Forster, I wool, &c. would amount to, according to the express should have felt great difficulty in arriving at that terms of the stipulation. That being so, the question is, opinion. It seems to me, that it is perfectly impossible to what amount of damages are the plaintiffs entitled for to make this rule absolute without, in effect, overruling the breach of contract? If there are several ways of per- that case. The way in which the difficulty has preforming it, one generally thinks, in estimating the da-sented itself to my mind is this: it can hardly be conmages, that the plaintiffs are to be put in the position they troverted, and, indeed, it has not been controverted on would have been in had the defendant performed the con- the other side, that the true measure of damages in this tract in the way least burthensome to himself, and the case is the least amount of freight which would have least profitable to them. That is the generally and uni- been payable to the plaintiffs if the defendant had loaded versally understood rule, I think; and that is all that at Port Philip an unobjectionable cargo. Therefore, the plaintiffs ask in the present instance. Whether there that leads to two inquiries: first, what is an unobjec is anything in this not quite consistent with any other tionable cargo? and, secondly, what is the least freight case, it is not necessary to decide one way or the other; payable on it by the terms of the charterparty? Now, but this case we may decide according to what the the charterparty contemplates that the charterer shall plaintiffs are content to receive, and according to a rule load a complete cargo of wool, tallow, bark, hides, or which certainly belongs to a large class of cases. Ques- other legal merchandise. I certainly cannot find anytions may arise, under different sets of circumstances, thing in this instrument which constrains the Court to as to what ought to be the proper amount of damages. narrow the large meaning which is naturally to be put If a ship leaves a port where she ought to have loaded upon the terms "other legal merchandise." I think, without doing so, and there were goods there which for the purpose of considering what is an unobjectionmight have been put on board, we may suppose that the able cargo, it is impossible to narrow that phrase by freighter might, perhaps, have had his choice of all the construing it to mean other legal merchandise ejusdem kinds, or that there was an impossibility of his loading generis. For example, when they come to enumerate any but a particular kind; that the goods there were the the limits within which the other different articles are dearest possible, the most onerous to him, and the most to be loaded, we find, amongst those articles, hides profitable to the shipowner; or that they were at the enumerated. If we hold that hides fall within the exother extremity of the scale, or somewhere interme- pression "other legal merchandise," it is very difficult diate. If you could shew that there was a particular to say they are ejusdem generis with tallow or bark, kind of cargo there, which he could have got and for which and for hides the stipulated freight is different. shipped, perhaps the measure of damages might be the Therefore it seems to me, upon the true construction of non-shipment of that cargo. But, if there were no this charterparty, that the defendant would not have goods at the port, we must suppose a different state of incurred any breach of it if he had loaded the ship with things that a cargo was not supplied because there was a full and complete cargo of any legal merchandise none to supply; then, it may be, you may take an aver- other than wool, tallow, hides, and bark; for instance, age of all the different kinds. And I think it was in that if he had brought the ship home full of cotton. Then way, probably, that Lord Tenterden's idea of average was the next question is, what is the least freight which arrived at that you must take all possible suppositions, would be payable for that? Undoubtedly the plainall equally false, of there being different kinds of cargoes tiffs are bound to make out, that, by the terms of the to be shipped, when the truth is, that there was no charterparty, they are entitled to the freight that they cargo; and thus taking an average, you are to treat that claim. It is not a question as to what they ought to as the mode in which the contract, if performed at all, have, but to what are they entitled by the terms of the would have been performed; but such is not, generally, charterparty; and, certainly, considering there are the way of dealing with contracts. It is not necessary, freights enumerated for certain specified articles, and however, to go upon that, because, construing the char- no freight for any other than those specified, I should terparty as one to pay freight on the terms which are in be under some difficulty in saying, were it not for the effect stipulated, at any rate the plaintiffs are entitled to case of Capper v. Forster, that this was not a case in the damages which they claim. Then, with respect to which the parties, having provided for the freight upon the price of pressing, I do not think there is any am- certain articles, have left the freight upon others not biguity at all to let in parol evidence or evidence of enumerated undefined, because the only mode in which usage as to pressing. It is clear upon the charter- the plaintiffs could entitle themselves to a freight upon party, that pressed wool and unpressed wool are to be those articles would be by resorting to the principle of considered as two kinds of goods, either of which ejusdem generis. But the case of Capper v. Forster the charterer may present to be carried in the state in certainly goes to the extent of deciding, that, at least as which it is. I do not say they are not to be weighed and far as the calculation of freight is involved in the constowed; there may be a little difference as to weighing struction of the words "other legal merchandise," they and stowage; but they are to be carried as pressed or must be understood to mean other legal merchandise unpressed wool, at different rates of freight. The calcu- ejusdem generis; by which I understand the Court to lation was probably made upon the idea that a cargo of mean, that, although they need not necessarily be of one or of the other would pay pretty much the same, and the same quality of those which are enumerated, they there is nothing to shew that there would be any dif- must at least have the incident of producing the same ference. A ton weight is to be carried in either case, quantity of freight to the owner of the ship. And that and there would be fewer tons weight carried of un- construction being put upon the present charterparty, pressed than of pressed wool. But, however that may it seems to me to justify the verdict which has been be, I conceive the pressing of the wool is the affair of found for the plaintiffs, and which gives to them, as I the person who delivers it to be carried; he has a right understand, the least freight which would have been to have either pressed or unpressed wool carried, and he payable if the cargo had consisted of unobjectionable has to exercise the option whether he presses it or not; quantities of the enumerated articles. It seems to me, and if he chooses to incur any other expense, as of wash- that, consistently with that case, we cannot disturb the ing or cleansing it, he may do so. I see no reason, verdict; and I think, for the reasons given by my |