become due under the charter from B. to A., and A. having brought an action against B., it was agreed that A. should withdraw his action, and that B. should deliver to C. certain bills of lading for the homeward cargo and should empower C. to receive the proceeds thereof for the purpose of paying A. any freight due to him under the charter, the balance to be paid to B.'s account with C. A. withdrew the action, and B. empowered C. accordingly. Upon the arrival of the vessel, A., in his own right, and as agent for C., took possession of the cargo, &c. At the time of making the agreement no part of the cargo was on board, nor were any of the bills of lading thereof in existence, nor were any such bills of lading at any time in the possession of A. or of B. or of C. Before the shipping of the cargo or the existence of the bills of lading, and before C. had any control over the cargo, and while B. was the apparent and reputed owner thereof, and whilst A.'s action was still pending, B. became bankrupt, and D. and E. were appointed assignees. The cargo was from the time of the shipping till the seizure thereof in the possession and control of D. and E., as assignees, and of one F., a master appointed by B. as their agent. Before the bankruptcy however, certain goods had been provided and shipped by B.'s agent as part of the homeward cargo, and on his account; which goods were carried from Y. to Z., where, for the purpose of more conveniently loading the whole of the homeward cargo, they were landed before the bankruptcy of B., and remained there ready for shipment. Other goods, provided by B.'s agents at G., were also, before his bankruptcy, ready for shipment on his account, as a further portion of the homeward cargo. Both sets of goods were shipped accordingly; after which A. took possession thereof for the purpose of paying himself such freight, &c.-Held, that the portion of the cargo which had been brought from Y. to Z., was sufficiently in the possession of B. at the date of the agreement, as part of the homeward cargo mentioned in that agreement, to bring it within the terms thereof, as equitably assigned to C. for the purpose therein mentioned. Semble also, that if the rest of the goods were within the possession of B.'s agents and before his bankruptcy, set apart and definitely appropriated as part of the homeward cargo, a similar result would follow.-But held, that as B. was left in the sole possession and management of the cargo, with full power to dispose of, or gain credit upon, any portion of it, having parted with no document essential to his power of disposal, such cargo passed to D. and E., under the 6 G. 4, c. 16, s. 72, as goods in the order and disposition of B. at the time of his bankruptcy.

Assumpsit. The declaration stated that before the said Robert Stockdale became bankrupt, to wit, on the 23rd of October 1839, by a certain charter-party [503] of affreightment memorandum of charter, then made between the defendants, therein described as George Capper and Nephews, merchants in the city of London, and owners of the ship or vessel called the " Maas," of the burthen of 137 tons, old measurement, or thereabouts, then on a voyage from London to Rotterdam and back to London, and the said Robert Stockdale, therein described as of London, merchant, the defendants agreed to let, and the said Robert Stockdale agreed to hire the said vessel for and during the term of six calendar months, [504] such term to commence fourteen days after the vessel should be ready to enter out at the custom house upon the terms and conditions following; to wit, that during the said term of that agreement, or as thereinafter provided, the said affreighter should possess the entire and exclusive use and disposal of the whole reach and burthen of the vessel, with the exception of the space occupied with the cabin, together with room for the usual accommodation of the crew, and for the stowage of the ship's stores and provisions; that the master should, from time to time, and as often as the interest of the said affreighter should require, take on board and properly stow all such lawful goods and merchandise to the extent of a full and complete cargo, if required, as should be tendered to him for that purpose, and proceed therewith upon such lawful voyage or voyages as he, the said affreighter, or his agents, should direct him so to do; and that he should deliver the said goods and merchandise agreeably to the bills of lading, the act of God, the Queen's enemies, and all and every danger and accidents of the seas, rivers, and navigation, of whatever nature and kind, during the said voyage, always excepted; that the freight and primage on all such goods, merchandise, bullion, or specie should be for, and payable to, the said affreighter or to his order; that all cargoes were to be brought alongside, and taken from alongside at shipper's risk and expense, and that in

the event of the completion of the above-mentioned term of six calendar months, whilst the said vessel was upon a voyage or after she had commenced taking goods on board for a voyage, the terms of that agreement should be prolonged until the discharge of her cargo after arrival at, or return to, a port in Great Britain; at which place the final completion of that agreement was to take place, unless otherwise mutually agreed between the owners and affreighters; that during the aforesaid term [505] of that agreement the said owners or master should keep the said vessel tight, staunch, and strong, sufficiently manned, provisioned, and properly provided, and fitted with all stores necessary for the due performance of the voyage or voyages she might be sent upon; in consideration of which the said affreighter thereby agreed to pay, or cause to be paid, to the owners of the said vessel at and after the rate of 22s. per ton old measurement, per register, per calendar month for so long as she should be by him employed as aforesaid under that agreement; such consideration to be paid as follows, viz., by one month's pay in advance in cash, one month's pay after the vessel should be entered on board, one month's pay that day two months, and one month's pay at the expiration of each succeeding month till the end of the term she might be employed, thus leaving one month's pay in abeyance, and the balance, in cash, on her final discharge, together with all port-charges and pilotage, except in Great Britain; the master to be supplied with such cash as he might require for ship's disbursements, at any of his loading or discharging ports by the charterer's agent, free of commission, taking the master's draft upon his owners for the same; which amount was to be paid by the owners, or deducted from the balance of freight due to the vessel; and it was by the charter-party further understood and agreed, that in case of damage to the ship by stranding or other accident, fourteen running days were to be allowed by the said affreighter for the necessary repairs beyond that period; the monthly payments to be suspended until the said vessel should be sufficiently repaired to prosecute her voyage; and, in the event of the loss of the ship, the affreighter was to pay the aforesaid rate of freight up to the time only when the vessel was lost, seen, or known to be in safety; but if the loss happened at sea, and the date could not be ascertained, then the charterer was to pay [506] half a month's hire. No goods were to be shipped that would not go down the hatchway. Dunnage, mats, boards, and nails, if required, to be found by the charterer. The vessel to be employed abroad, between the river Gambia and Sierra Leone, and between the Gambia and the Cape Verd Islands on the African coast, all inclusive; but not to be sent to any place where she could not lie afloat at any time of tide; and if ordered to London to discharge her homeward cargo, it would be in one of the regular docks, at the option of the charterer, the vessel to be entered and cleared outward, and reported on her return to London, by the said Robert Stockdale, free of charge; not to ship exceeding fifty tons weight of teak wood or timber, and no piece exceeding twenty-five cwt. The vessel to be ready for loading in the London Docks ten days after she should be cleared of her inward cargo from Rotterdam, provided she met with no accident requiring extensive repairs. The charterer to have the privilege of putting in a master of his own appointment, he finding the cabin with all stores and paying his wages, the owners allowing the charterer whatever rate of wages they paid their own masters. It was also, by the same charter-party, agreed and understood that as the master was to be appointed by the charterer to superintend his interest, the owners were not to be responsible for his acts and conduct, should he deviate from that charter-party; but the charterer held himself responsible to the owners for the said master's honest and correct conduct and strict integrity whilst he should have the navigation of their vessel. In the event of sickness or death from the effects of the climate, the time occupied in procuring substitutes was not to be deducted from the freight. The commission upon that charter was 2 per cent., payable to Messrs. Leach and Clark. Penalty for non-performance of that agreement, 10001. Averment that [507] the said charter-party being so made as aforesaid, afterwards, to wit on the 18th of December 1839, in and by a certain memorandum or declaration in writing indorsed on the said charter party and signed by the defendants and the said Robert Stockdale respectively, it was declared that the periods of payment of the said freight should be as follows: viz one month's pay on the 10th of January 1840, one month's pay on the 10th of March following, and one month's pay on the 10th day of every succeeding month during the remaining period of that agreement. Mutual promises to perform the charter and memorandum, with a further promise by the defendants

to suffer and permit the master for the time being of the said ship or vessel to perform and fulfil all things by him to be performed and fulfilled as such master in pursuance of the said charter-party, and to suffer and permit the delivery, according to the terms of the said charter-party, of the cargo, goods, and merchandise which should be shipped on board the said ship or vessel in pursuance of the said charter-party, and to suffer and permit the said charterer to use the said ship or vessel according to the terms of the said charter-party and memorandum, during the continuance of the said charterparty and agreement therein contained, and during that time to possess the entire and exclusive use and disposal of the whole reach and burthen of the said vessel, with the exception of the space occupied with the cabin, together with room for the usual accommodation of the crew, and for the stowage of the ship's stores and provisions. Averment that afterwards, and after the making of the said charter-party and memorandum thereon subscribed as aforesaid, and before the said Robert Stockdale became bankrupt, to wit, on the 1st of January 1840, the said ship or vessel did arrive in the said port of London from Rotterdam aforesaid, and afterwards, to wit, on, [508] &c. last aforesaid, the said ship or vessel was ready to enter out, and did enter out, at the custom house according to the terms of the said charter-party, and the said Robert Stockdale did then, to wit, on the day and year last aforesaid, put in the said ship or vessel a master of his own appointment, to wit, one James M'Cormick, according to the terms of the said charter-party; and the said ship or vessel did sail and proceed on her voyage under the command of the said James M'Cormick, according to the terms of the said charter-party of affreightment, to wit, to Gambia and Sierra Leone and the Cape Verd Islands aforesaid, and to divers places on the African coast, between the river Gambia and Sierra Leone, and between Gambia and Cape Verd Islands; and the said vessel was not sent to any place where she could not lie afloat at any time of the tide; and the said master did afterwards, at the said several places, to wit, on the 1st of March 1840, and on divers other days and times, between that time and the sailing of the said vessel for London, take on board and properly stow divers lawful goods and merchandise, in pursuance of, and according to, the terms of the said charter-party, to wit, to the extent of a full and complete cargo, and of great value, to wit, of the value of 10,0001., and did then, to wit, on the 1st of August in the year last aforesaid, and after the bankruptcy of the said Robert Stockdale, proceed therewith on the homeward voyage of the said ship or vessel, to wit, to London aforesaid, according to the orders and directions of the plaintiffs as assignees as aforesaid; and the said ship or vessel being so loaded as aforesaid, did afterwards, and after the bankruptcy of the said Robert Stockdale, to wit, on the 1st of October 1840, arrive at London, at one of the regular docks there, to wit, at the West India Docks there; and the said term of six calendar months in the said charter-party mentioned, was completed after the said vessel [509] had commenced taking goods on board for her said voyage, to wit, on the 15th of July 1840, whereby the said agreement and the terms thereof were prolonged until the discharge of her cargo after her arrival at, or return to, a port in Great Britain. That the said Robert Stockdale, before he became bankrupt, and the plaintiffs as assignees as aforesaid, since the bankruptcy of the said Robert Stockdale, had respectively performed and fulfilled all things contained in the said charter-party and memorandum or declaration in writing, on their parts respectively to be performed and fulfilled, according to the true intent and meaning of the said charter-party and memorandum. Yet the defendants had not performed or fulfilled all things contained in the said charter-party and memorandum, on their parts and behalves, to be performed and fulfilled, and did not nor would suffer or permit the master for the time being of the said ship or vessel, to perform and fulfil all things by him to be performed and fulfilled as master of the said ship or vessel in pursuance of the said charter-party, and did not nor would suffer or permit the delivery of the said cargo, goods, and merchandise so, as aforesaid, shipped on board the said ship or vessel in pursuance of the said charter-party; but on the contrary thereof, although the said cargo, goods, and merchandise were, by the bills of lading thereof, made deliverable to the plaintiff Alexander Brymer Belcher, who, on the arrival of the said vessel, was, and from that time had been, ready to receive the same; and although the plaintiffs as such assignees as aforesaid, were then ready and willing to unload the same, to wit, in the West India Docks, being one of the said regular docks, and to take the same from alongside at the expense of them, the plaintiffs, and to deliver and cause the same to be delivered

to the said A. B. Belcher, according to the said bills of lading; of all which the defendants then, to wit, from [510] the time of the arrival of the said ship or vessel at London aforesaid, hitherto had notice, and were then during the time aforesaid often requested by the plaintiffs to suffer the same to be so delivered; and although the delivery of the said cargo, goods, and merchandise was not in any way hindered or prevented by the act of God, the Queen's enemies, or any danger or accident of the seas, rivers, or navigation of any nature or kind whatsoever; and although the said agreement in the said charter-party contained, being so prolonged as aforesaid, was then subsisting and continuing, and not terminated; they the defendants from the time of the arrival of the said ship or vessel, with the said cargo, goods and merchandise, hitherto had altogether refused to deliver, or to permit the said master of the said vessel or any other person to deliver the said cargo to the said A. B. Belcher, agreeably to the bills of lading, or to the plaintiffs; and had altogether hindered and prevented the delivery of the said cargo, goods and merchandise, or any part thereof to the plaintiffs, or any of them, and had detained, and still did detain the same, and every part thereof on board of the said ship or vessel, contrary to the true intent and meaning of the said charter-party and of the said memorandum. And that the defendants did not, nor would suffer the plaintiffs as assignees as aforesaid, after the bankruptcy of the said Robert Stockdale, to use or enjoy the said ship or vessel according to the terms of the said charter-party or of the agreement therein contained, or, during that time, to possess the entire and exclusive use and disposal of the whole reach and burthen of the said vessel, with the exception of the space occupied with the cabin, together with room for the usual accommodation of the crew, and for the stowage of the ship's stores and provisions; but that after the said bankruptcy, and after the arrival of the said ship or vessel as aforesaid, at London [511] aforesaid, and before the discharge of the said cargo, and the said ship not having discharged her cargo after arrival at, or return to a port in Great Britain, and during the continuance of the said charter-party and agreement therein contained, being so prolonged as aforesaid, to wit, on the said 1st October 1840, the defendants altogether deprived the plaintiffs of the use and enjoyment of the said ship or vessel, and every part thereof; and the defendants themselves seized and took possession of the whole of the said ship or vessel, and excluded the plaintiffs therefrom; and to suffer the plaintiffs to possess the use or disposal of any part of the same, or to remove or unload the said cargo so being on board of the same, and occupying other parts thereof than the space occupied with the cabin, or the room for the use and accommodation of the crew, or for the stowage of the ship's stores or provisions, had altogether refused, and still did refuse, and from thence hitherto had kept and detained, and still did keep and detain possession of the whole of the said ship or vessel, so having on board the cargo, goods, and merchandise; aforesaid, contrary to the true intent and meaning of the said charter-party and memorandum: whereby the plaintiff's had been unable to obtain possession of the said cargo, or to unload or dispose of the same or any part thereof; and by reason of the premises the said cargo, goods and merchandise had been, and were greatly deteriorated, &c., and had become of no value; and the plaintiffs as assignees aforesaid, had been deprived of the use and possession of the said goods and merchandise, and of the profits, benefits, and advantages which they otherwise would have derived therefrom, and had wholly lost and been deprived of many advantageous, and profitable opportunities of selling and disposing of the same. The defendants pleaded, sixthly, that after the making [512] of the said charterparty and memorandum, and during the subsistence of the provisions thereof, and after the bankruptcy of the said Robert Stockdale, and after the arrival of the said ship or vessel at London, and before her final discharge, to wit upon the 28th of September 1840, there was due and owing to the defendants, the said owners of the said ship or vessel, a certain large sum of money, to wit, 13481. 19s. 6d. for the use of the said ship or vessel, according to the terms of the said charter-party, and for the freight and carriage and conveyance of the said cargo, goods, and merchandise in the declaration mentioned, according to the terms and provisions of the said charter-party and memorandum, and a certain other sum, to wit, 1570l. Os. 1d. was payable to the defendants on the final discharge of the said ship or vessel according to the terms and provisions of the said charter-party and memorandum for the use of the said ship, and for freight and carriage and conveyance of the said cargo, goods, and merchandise to wit, on, &c. last aforesaid; yet the plaintiffs did not and would not then, to wit, on,

&c. last aforesaid, or at any other time, nor did the said Robert Stockdale, pay or offer to pay the said sums of money, or any part thereof, to the defendants; but the plaintiffs had always neglected and refused, and still did refuse, to pay the same, and the said sums of money were still due and unpaid respectively to the defendants; and, thereupon, and upon the refusal of the plaintiffs to pay the said sums of money respectively, the defendants did refuse to deliver, or to suffer or permit the said master to deliver, the said cargo to the said A. B. Belcher, and had hindered and prevented the delivery of the said cargo, goods, and merchandise to the plaintiffs, and had detained, and still did detain, the same on board the said ship, and had refused, and still did refuse, to suffer the plaintiffs to remove or unload the said cargo, and kept and detained, [513] and still did keep and detain possession of the whole ship or vessel so having on board the cargo, goods, and merchandise aforesaid, as they lawfully might for the cause aforesaid, and as and for a lien for the moneys so respectively due and payable according to the terms and provisions of the said charter-party and memorandum aforesaid; which were the same matters in the declaration in that behalf alleged, and therein supposed to be breaches of the promise and undertaking of the defendants. Verification.

Special demurrer, assigning, among other causes, that it did not appear that the defendants at the time of committing the said breaches of promise, were in possession of the said ship or cargo, or in a situation to enforce their lien (a).

Seventh plea. As to so much of the declaration as related to the said supposed breaches of promise by the plaintiffs in their declaration alleged, wherein they complained of the defendants not suffering or permitting the master to perform and fulfil all things by him to be performed and fulfilled as master in pursuance of the said charter-party, and not suffering or permitting the delivery of the said cargo, goods and merchandise so shipped on board in pursuance of the said charter-party, and refusing to deliver, or to suffer, or permit the master, or any other person, to deliver, the said cargo to the said A. B. Belcher agreeably to the bills of lading, or to the plaintiffs, and hindering and preventing the delivery of the said cargo, goods, and merchandise to the plaintiffs, and detaining the same on board the said ship, contrary to the true intent and meaning of the said charter-party and memorandum, and not suffering the [514] plaintiffs as assignees after the bankruptcy of the said Robert Stockdale, to use or enjoy the said ship according to the terms of the said charterparty and memorandum, or to possess the entire and exclusive use and disposal of the whole reach and burthen of the said vessel with the exception therein mentioned, and the depriving the plaintiffs of the use and enjoyment of the ship, and seizing and taking possession of the whole of the said ship and excluding the plaintiffs therefrom, and refusing to suffer the plaintiffs to possess the use and disposal of any part of the same, or to remove or unload the said cargo, and keeping and detaining possession of the whole of the said ship or vessel so having on board the said cargo, goods, and merchandise,—that after the making of the said charter-party and memorandum, and during the subsistence of the provisions thereof, and after the bankruptcy of the said Robert Stockdale, and after the arrival of the said ship at London, to wit, on, &c. last aforesaid, and before the final discharge thereof, the said cargo, goods, and merchandise were by the bills of lading thereof made deliverable to the plaintiff, A. B. Belcher, or his assigns, he or they paying freight for the same as customary, and although the said freight amounted to a large sum, to wit, 14001.; and although there was then due and owing to the defendants, owners of the said ship, for the use of the said ship, for freight and carriage and conveyance of the said cargo, goods, and merchandise a large sum of money, to wit, 13481. 19s. 6d., according to the terms of the said charter-party and memorandum; and although a certain other large sum, to wit, 2211. Os. 7d., was payable to the defendants, the said owners of the said ship, on her final discharge, for use of the said ship, and for freight and carriage and conveyance of the said cargo, goods, and merchandise, according to the terms of the said charter-[515]-party and memorandum, to wit, on, &c. last aforesaid; and although the two last-mentioned sums so respectively due and payable to the defendants amounted to a large sum, to wit, to an amount not less than the

(a) Plaintiffs' points :-"The plaintiffs will contend that the defendants had no lien upon the ship or cargo, and they will also rely upon all or any of the causes of demurrer stated in the body of this demurrer."