was entitled to deduct the amount of the bill of exchange on tendering freight to obtain possession of the cargo, and also whether he was entitled to damages for the detention. Lewers for the Defendant.-The first question is whether the captain on the arrival of the ship at Alexandria had the right to exercise his lien for full freight, and that will depend upon the construction of two clauses of the charter-party. One is, "the freight to be paid on unloading and right delivery of the cargo, less advances, in cash, at current rate of exchange;” the other is, "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." The two clauses are apparently inconsistent, because while, in the first, it would seem that the acceptance is a prepayment of freight, in the latter it is stipulated that the advance shall be insured by the owner. But the clauses are reconcilable, if it be held that the "advance" was a mere loan to be repaid by being brought into account on settlement of freight, and not a part prepayment of freight. The shipowner was to insure it, and if this advance was a prepayment either actual or conditional, then, as it could not be the subject of sea risk, the shipowner would have no insurable interest. [Blackburn, J. There is no inconsistency in the two clauses, because the shipowner might insure on behalf of the charterer as having an insurable interest.] If so, why should not the charterer himself insure? And on that construction no meaning can be given to the words, "deposit with charterer the club policy, and guarantee the same." The interest should appear on the policy according to the fact. [Blackburn, J. No: for it would only be a question of pleading in whom the interest should be laid.] The chief point however is, that there is here nothing to show that the shipowner was insuring for any body but himself, and we are not at liberty to speculate 1866. TAMVACO v. SIMPSON. 1866. TAMVACO บ. SIMPSON. upon anything being done which is not stated in the case. If this construction is right, here was no advance of freight, and there being no authority deciding that such an arrangement affects the shipowner's lien, that lien was intact on the arrival of the ship at Alexandria. [Blackburn, J. The bill was outstanding in the hands of third parties, so how could the shipowner say he was entitled to cash?] Since the Bills of Lading Act, 18 & 19 Vict. c. 111, the indorsee of the bill of lading could not stand in a better position than the indorser. But the bill of lading itself makes the freight payable "as per charter-party," and the indorsee would therefore be liable to pay the full chartered freight, whatever that might prove to be, when the proper time arrived. [Pollock, C. B. The receipt on the bill of lading is for 3017. 17s. 6d. "on account of freight."] Yes, but it goes on "as per charter-party," thus affecting the holder with notice of the nature of the advance. Therefore whatever were the indorsee's rights against De Mattos the charterer, as against the shipowner he had no right. [Blackburn, J. Have you any case where a bill of exchange has been given for freight and the shipowner has been allowed to exercise his lien ?] No. But there is a case in Chancery where a banking company enforced a lien while a bill given for moneys advanced was outstanding: Re The London, Birmingham and South Staffordshire Banking Company (a). In the second place, assuming that the giving of the bill was an advance of freight, it was only a conditional payment, and in absence of special circumstances showing that the shipowner took the risk of the bill upon himself, the debt subsisted, and the lien also, and the lien was enforceable, notwithstanding the currency of the bill. On the bill proving worthless it was no longer an "advance;" and if during its currency the lien on the cargo was suspended, then on its extinction that lien revived. (a) 11 Jur., N. S. 316. Thirdly. The Plaintiff is not entitled to recover damages in respect of the repayment to Messrs. Barker, his liability to repay being the result of his own act in inducing them to give the guarantee, and afterwards in authorizing them to pay the amount; and à fortiori is this so, when Messrs. Barker might have availed themselves of the nonexistence of a legal debt as a defence to the action in the Consular Court. Giving the guarantee without protest and with full knowledge of the facts operated in law as a payment, just as much as if the Plaintiff had procured for the Defendant Messrs. Barker's acceptance or promissory note; at all events the damages should be limited to the loss sustained by the detention of the goods at Alexandria. Mellish, Q. C. (Bidder with him), for the Plaintiff, was not called upon. POLLOCK, C. B. We are all of opinion that the judgment of the Court of Common Pleas should be affirmed. In his very elaborate judgment in this case in the Court below my Brother Willes enters largely into the question of the rights of the shipowners and the charterer under the charter-party. But it is sufficient on this occasion to say that in my opinion the giving of the bill by the charterer was, in fact, a prepayment of freight; and if there should be any doubt upon that point it is dispelled by the form of the receipt indorsed on the bill of lading, which so treats it. When a shipowner who has placed on the back of a bill of lading a receipt for half the freight and transfers it to a bonâ fide holder, the indorsee of the bill is entitled to have the cargo delivered on payment of the remainder of that freight. There was here a demand made by the Plaintiff for the coals consigned to him, and the master refused to deliver them unless the full freight was paid, although a bill of exchange for half of it had been already received by the shipowner and had been dealt with by him as payment. In that state of things nothing which might 1866. TAMVACO v. SIMPSON. 1866. TAMVACO บ. SIMPSON. arise afterwards could alter the rights of the parties. Payment of freight for the carriage of cargo is like any other payment, and if wrongly paid may be recovered in any way that the law allows. This case being stated without pleadings, we can only say that the Plaintiff is entitled to a return of the money which he was compelled to pay in order to obtain possession of the goods improperly withheld from him. MARTIN, B. I am of the same opinion. My judgment, however, is confined to this, that the shipowner had no lien on the cargo in respect of his bill of exchange being invalidated by the insolvency of De Mattos. The goods were clearly the Plaintiff's, and they ought to have been delivered to him. CHANNELL, B. I concur: and on the ground that the Defendant had no lien. BLACKBURN, J. I am of the same opinion. I do not wish however to be understood as deciding upon the question whether the bill of exchange was a prepayment of freight or an advance on account. If the ship had gone down and the shipowner had become insolvent, that question might, in some form, have arisen; but I am clear as to this, that on the true construction of this charter-party the Defendant had no right of lien. The terms of the charter-party are, that the freight is to be paid on unloading and right delivery of the cargo, "less advances," and further on it states what that means"one-half of the freight to be advanced by freighter's acceptance at three months on signing bills of lading." I cannot believe that, while the charterer was giving the bill of exchange so stipulated for, it was the intention of the parties that the amount should be paid again. Some analogy has, in effect, been attempted to be shown to the law of stoppage in transitu, where the vendor exercises a right of lien on the goods sold. But that is a rule imported into our law, forming no part of the law merchant. It cannot be extended to a case like the present, where the Plaintiff was the bonâ fide holder of the bill of lading, and entitled therefore to all rights under it. The rest of the Court (MELLOR, J., and PIGOtt, B.) concurred. 1866. TAMVACO บ. SIMPSON. Judgment affirmed. LOCK V. FURze. F., tenant for life, demised premises to the Plaintiff for a term of years, and THIS The question for the Court of Appeal was, whether the damages should be reduced, and, if so, whether they should be reduced to nominal damages or to 25l.? Garth for the Defendant.-This being the conveyance of a mere interesse termini, in estimating the damages for breach of the covenant for quiet enjoyment, the rule to be adopted must be the same as in a contract for the sale of land; in which case, on failure to carry out the contract from want of title, the consideration money paid for the land and certain costs and expenses is the only compensation granted. The principle contended for |