1818. WILSON against DICKSON. contracted for at the time of such loss or damage." It has been argued, that the words " at the time of such loss or damage," not only refer to the freight due or to grow due, but also to the words "their ship or vessel." It seems to me, however, that they do not apply to either, but are connected with the words "the voyage." For these words are substituted for others, which are found in the 7 G. 2. c. 15. s. 1., which are, "the full amount of the freight due or to grow due for and during the voyage, wherein such embezzlement shall be made, permitted, or done." Then substituting for these latter words in the 7 G. 2. the words, "at the time of the said loss," in the act in question, it clearly appears, that these latter words apply to "the voyage," and not to any other part of the sentence. The question, therefore, must be considered as if those words were not in the act. In speaking of value generally, we must be understood to speak of existing value, and in this instance the legislature is speaking of a thing existing at a particular period of time, for they use the terms freight due, that is due at the time of loss; for the words "to grow due," apply to the freight that may become due upon that voyage, after the loss. With respect therefore to freight, the legislature contemplated two periods of time, viz. freight due at the time of the loss, and freight due at the conclusion of the voyage; and if they had intended that the value of the ship was to be taken at two periods also, or at a period different from that of the loss, they would have used words to express their intention in that respect. It has been argued, that the owners of the cargo trusted the owners of the ship to the amount of the value of the ship before she sailed, and that there therefore they ought to continue liable to that extent; but it must be recollected, that their responsibility is limited also in like manner in the case of damage done to any other ship by collision, &c.; and it being obvious that this argument could only apply to the one class of cases and not to the other, both being included in the same clause, it follows, that the argument is not entitled to any weight. Upon the whole, therefore, it seems to me, that the words "the value of his or their ship or vessel," must, unless there are some other words to control them, mean the existing value at the time when the loss takes place: the mode of ascertaining that value is a matter of evidence, and may possibly be attended with some degree of difficulty. If the ship ultimately arrive, by ascertaining her then value, you may easily find the value at the time of the loss; in other cases, when the exact time of the happening of the injury is uncertain, the plaintiff may launch a prima facie case, by shewing the value at the time of sailing, leaving it to the opposite party to shew what deterioration had taken place. That, however, is mere matter of evidence, and no positive rule can be laid down upon the subject; and possibly (I only say possibly) the legisture, from motives of policy, might think, that persons who had embarked their property in shipping should, on giving up all they had ventured in a particular voyage, be relieved from any further responsibility. The third and last question is, what is the true construction to be put upon the words "freight due or to grow due?" and it seems to me that those words mean all the freight for that voyage, whether paid in advance or not. If the whole freight had been paid in advance, according to the argument, the defendants would 1818. WILSON against DICKSON. 1818. WILSON against DICKSON. would be liable to the value only of the ship, and not of the freight. It is clear, on the other hand, that it would come within the very words of the act, if the whole freight were due at the time of the loss; and it seems to me, that it ought not to make any difference with respect to the owner's responsibility, whether the freight be in his own pocket, or in that of the person who would have to pay it. I therefore think that the words "freight due or to grow due," were meant to comprehend all the freight for the voyage, and that it makes no difference whether that freight was paid in advance or not. ABBOTT J. (a) I entirely agree in the opinion delivered by my brother Bayley, on the different points of this case, and in the comments he has made on the language of this act of parliament: those comments are so full and so clear that I feel it unnecessary to add any thing upon the subject. HOLROYD J. concurred. The Court ordered the sums of 750l. and 250l. to be deducted from the damages, and the verdict therefore stood for the sum of 21967. 10s. (a) The Lord Chief Justice was not sworn into his office until the fourth day of November: the sittings at Serjeants' Inn finished on the third. 1818. GIBBON against MENDEZ. (a) COVENANT on a charter-party of the 26th Sep- at least, and so in proportion for month, or for time than six less than a such further months as the ship might be detained in the service of the her final disfreighter, until charge, or until the day of her being lost, cap tured, or last seen or heard of; such freight to be paid to the commander of the ship in manner following, viz. so much as might be earned at the time of the arrival of the ship at her first destined port abroad, to be paid within ten days next after her arrival there, and the remainder of the freight at specific periods: Held that this constituted one entire covenant, and that the arrival of the ship at her first destined port abroad was a condition precedent to the owner's right to recover any freight, and that the ship having been lost on her outward voyage, the owner was not entitled to recover freight at so much per calendar month to the day of the loss. (a) This case was argued at Serjeants' Inn. VOL. II. C detained 1818. GIBBON against MENDEZ. detained in the service of the freighter, and until her final discharge in the port of London, or up to the day of her being lost, captured, or last seen or heard of; such freight to be paid to the commander of the ship for the time being, in cash, in manner following; that is to say, so much as might be earned at the time of the arrival of the ship at her first destined port abroad, to be paid within ten days next after her arrival at such port, and previous to the delivery of her cargo; and at the expiration of every calendar month after that period the freight then due was to be paid up from time to time, during the continuance of the ship in the service of the freighter; and the residue or balance of freight, that might become due upon the final discharge of the ship, under and by virtue of that charter-party, to be paid on the day the ship should be so finally discharged from her intended service. And that in case default should be made of or in the payment of any part of the freight, it should be lawful to the commander of the ship to withhold and retain, and to sell and dispose of so much of the cargo on board, as might be sufficient to cover the amount of the freight, and out of the proceeds to pay the freight then due." The charter-party then contained a proviso, that the freighter “should, at any time during the continuance of the voyage, have the option of purchasing the ship for 73507., upon giving notice of his intention to the owner, and also upon paying to the owner or to the commander of the ship the freight which might be earned up to the time of such purchase; and upon such notice being given, and payment of the consideration money and freight, the owner was to execute a bill of sale |