1828.

Lander v. Clark.

Dec. Term, necessity, on her return voyage, and having thus departed from her direct route, the charter-party was thereby violated by the plaintiff; and that Woods, the general owner of the brig, hadaright to consider it as abandoned, and to resume the possession of the vessel; and that having thus regained the possession, his right of lien for freight attached upon the goods found on board.

When the goods shipped at Rio Grande, and consigned to Whitlock, at New-York, were put on board, it is clear that the contract for the payment of the freight was made by the shipper with the plaintiff. The plaintiff being owner of the vessel pro hac vice, had a right to take the goods on freight; and the shipper having contracted to pay the freight to him, was bound to do so, on the delivery of the goods to the consignee, at New-York; unless he was discharged from that obligation by the alleged violation of the charter-party by the plaintiff. I am at a loss to conceive how any such violation, if it took place, could authorize the shipper or his consignee to refuse to pay the freight, when it had been earned according to the terms of his agreement with the owner of the vessel.

It seems clear, that on the arrival of the vessel at New-York, the obligation to pay the freight to the plaintiff became complete on the part of the shipper, or his consignee: and if so, it is equally certain that he could be under no obligation to pay it to the general owner of the vessel. The freight might have been paid in advance to the plaintiff; or the payment might have been postponed by agreement to a day subsequent to the delivery of the goods; in either of which cases, it could not be pretended that the general owner of the vessel could have retained the goods, though the charter-party may have been abandoned, or annulled with the consent of the plaintiff. The terms of the agreement between the plaintiff and the shipper of the goods, could not have been affected by the interference of any claims, on the part of the general And the true ground, as it appears to me, on which the decision of the case ought to rest is, that as between the shipper, or his consignee and the plaintiff, the right of the latter to claim the freight, could not be questioned by the former; and that the consignee could not have paid it to Woods, the general owner, ex

1828.

Lander v. Clark.

cept in his own wrong. The payment to the defendant, who was Dec. Term, the agent of the plaintiff in taking the goods on board, and in earning the freight, by the completion of the voyage, was equivalent to a payment to the plaintiff; and the money must be considered as paid for the plaintiff's use, because it was paid in discharge of the contract made with him, by the shipper of the goods.

The case would stand thus, in my judgment, though it were conceded that Woods had strictly a legal right to take possession of the vessel, on her arrival at New-York. But had he such right? The position is, that by a departure from the direct route of the voyage from Rio Grande to Boston, and touching at New-York, although with the intent to terminate the voyage at the latter place, the general owner of the vessel was authorized to dissolve the charter-party, to resume the possession of the vessel, and to demand payment of the freight of any goods he might find on board; not in pursuance of the terms of the charter-party, but as upon a quantum meruit. These are consequences which can scarcely flow from so unimportant a deviation from the direct line of the voyage.

The charter-party clearly continued binding on the plaintiffs though the vessel touched at New-York, and would continue to operate until her arrival at Boston, unless the interference of the general owner, and the consequent breaking up of the voyage, discharged him from it. The owner, then, lost no security for his freight, in consequence of the touching of the vessel at NewYork. He relied originally on the personal responsibility of the plaintiff, and assumed the hazard of his becoming insolvent. He has no ground of complaint, unless it be that the voyage might have been somewhat lengthened, and the period at which the payment of freight, according to the terms of the charter-party, was to become due, might have been postponed for a few days. This consideration is of little importance, when it is recollected, that the freight is charged at a certain sum per month, during the continuance of the voyage: and that the voyage itself was therefore understood by the parties to be one of indefinite length. And indeed, the provision in the charter-party, that the voyage is to

VOL. I.

48

1828.

Lander v.

Clark.

Dec. Term, terminate at Boston, may justly be considered as inserted, rather for the purpose of fixing a period, from which the time limited for the payment of the freight may begin to run, than to confine the homeward voyage to the most direct route from Rio Grande to that place. If the deviation from the direct route of the homeward voyage can be considered at all as a violation by the plaintiff of the terms of the charter-party, the owner of the vessel may, probably, have his action for the damages, if any, which he may have sustained in consequence of it. But I know of no principle upon which the owner, under such circumstances, is justified in treating the charter-party as a nullity.

?

The preceding view of this case agrees with that taken by the S. C. of Massachusetts, in the case of Pickman v. Woods, in which the same questions were involved, arising under the same charterparty. We have been furnished with a manuscript copy of the opinion delivered by C. J. PARKER, in giving the judgment of the court in that case. It was an action of replevin for certain property, the proceeds of the cargo, shipped by Lander under the charter-party in question. The cargo was assigned by Lander to Pickman; and on the arrival of the vessel at New-York, Pickman claimed the property under his assignment, which Woods refused to deliver, unless the freight was paid. The same questions existed as in the present case. 1st. Whether Woods had a lien on the goods for the hire of the vessel, by virtue of the charter-party. 2d. If not, whether, in consequence of the vessel's going to NewYork, the charter-party ceased to be binding on Woods, so that he might resume the possession of the vessel, and acquire a right to freight on such goods as he found on board. Both these questions are examined at length by the Chief Justice; and he comes to the conclusion, that Woods, by the fair construction of the charter-party, had transferred the entire possession and control of the vessel to Lander, and could not claim a lien for the freight upon any goods taken on board by him; and that the vessel's touching at New-York, under the circumstances, did not authorize Woods to consider the charter-party as dissolved; and judgment was given for Pickman.

This is an adjudication of a court of high authority on the very Dec. Term,

1828.

points involved in the present case, and is entitled to great respect.

I am entirely satisfied with the correctness of the decision, and Brittingham

v.

with the reasoning on which it is founded.

Stevens.

The defendant, then, in the present case, having received the freight in question from the consignee of the goods, is to be held to have received it for the use of the plaintiff; and having paid it over with full knowledge of the plaintiff's rights, he is liable to the present action. The plaintiff must have judgment for the amount of the freight, with interest, according to the stipulations of the case.

Judgment for the plaintiff.

IR. M. Blatchford, Att'y for the plff. H. & E. Wilkes, Att'ys for the deft.]

ASAHEL P. BRITTINGHAM versus WILLIAM STEVENS.

A party giving a bill of particulars under a Judge's order, is not held thereby to furnish evidence against himself; but is merely confined at the trial to the range of proof which he himself has chosen. And where referees allowed the plaintiff to resort to the particulars of the defenant's set-off, to establish a fact, the evidence was held to have been improperly admitted.

Where referees certify to the court, that they have overlooked a circumstance connected with the accounts submitted, and request that the same may be sent back to them for re-examination, the court will set aside the award and send back the accounts to the same referees.

Mr. J. Stevens in behalf of the defendant in this cause, moved to set aside a report of referees, to whom the accounts of the parties had been submitted under a rule of court.

He read an affidavit setting forth, that in the progress of the investigation of the accounts before the referees, the counsel for the plaintiff read in evidence a bill of the particulars of the defendant's set-off, which had been served upon the plaintiff's attorney, pursuant to a rule obtained in the ordinary way, under a Judge's order,

Dec. Term,

1828.

for the purpose of proving the payment of a sum of money at a particular time. The counsel for the defendant objected to the Brittingham reading of the bill of particulars for the object stated; but it was admitted and received by the referees as evidence.

v.

Stevens.

A certificate signed by the referees was also read by Mr. Stevens, stating a request on their part that the accounts, might be again sent back to them for examination, upon the ground that "a cir"cumstance connected with the accounts had been overlooked " by them in making their report."

The counsel for the defendant contended,

I. That the referees ought not to have admitted the bill of particulars, as evidence against the defendant.

II. That the mistake of the referees as proved by their certificate is sufficient to send the accounts to new referees on the merits. [He cited 2 Esp. N. P. C. 602. 2 J. R. 62.]

Mr. T. C. Pinckney for the plaintiff contended,

I. That a party is bound to confine himself to his bill of particulars. [14. J. R. 329. 15. J. R. 222. 2 Bos. & Pul. 243.]

The case cited from Espinasse, was an action for the sale of some lottery tickets, and the particulars of the defendant's set-off were produced as proof of the sale. But here the bill of particulars was offered for the sole purpose of establishing the time at which a certain payment was made. It was not used to prove the account, or support the declaration, or to show admissions in favour of the plaintiff. For the purpose of identifying the time of a payment the particulars of set-off were admissible in evidence. [1 Phil. Ev. 153-4., and the cases there cited.]

II The certificate of the referees ought not to be received by the court: 1. because it is not under oath: 2. because "the cir"cumstance connected with the accounts" which is said to have been overlooked, is not stated in the certificate. And thirdly, be