1818. GIBBON against MENDEZ. continued covenant, qualified as to the mode of payment; and the first qualification is the ship's arrival at her first destined port. The parties do not seem to have contemplated the possibility of loss before the arrival of the ship at that place. When, therefore, we find that the contract itself contains a qualification as to the time of payment, and that that time has not arrived, and never can arrive, we ought to see most clearly, from other parts of the instrument, that the construction now contended for is consistent with the intention of the parties: but no such intention is to be collected from this instrument. On the contrary, as the outward voyage would be of no benefit to the freighter, unless the ship reached her port of delivery, he may very reasonably have intended that the risk of that voyage should be thrown upon the ship-owner. At all events, where the freighter derives no beneficial use from the ship there ought to be a clear express stipulation, in order to charge him with the payment of freight, and this charter-party contains no such stipulation. For the provision which makes the freight payable ten days after the arrival of the ship at the outward port shews rather that the freighter contemplated a benefit from the performance of the outward voyage before he charged himself with the payment of freight. The parties might have made a different contract; but, upon considering the terms of this charter-party, I think that in the contemplation of the parties no freight was payable till the arrival of the ship on her outward voyage. In Mackrell v. Simond, the Court thought that though the charter-party defectively stated the intention of the parties, still that upon the whole an intention intention to pay freight for the outward voyage was to be collected. There, two distinct voyages, the outward and the homeward, were expressly described, and it was holden that freight pro rata was payable for the voyage out. But, to apply that case to the present, it should appear that this charter-party defectively states the intention of the party. I cannot see that it was intended to throw upon this defendant the risk of the loss of the outward voyage; and, upon the whole, I am of opinion that the parties having fixed the period of time at which the freight was to become payable, and that period not having arrived, no freight is due; and therefore that the plaintiff is not entitled to recover. ABBOTT J. I think that the provisions respecting the payment of freight constitute one entire covenant, and that the payment of any freight is made to depend on the arrival of the ship at her outward port. It was competent to the parties to have made the freight payable at all events. By the terms of this charter-party they have only made it payable on a contingency which has never happened, and consequently the plaintiff is not entitled to recover. HOLROYD J. I am also of opinion that the plaintiff' is not entitled to recover. By the terms of the covenant the freight is not to become due monthly, but to be at and after the rate of so much per month, and the first part of the covenant, by which the freight is to be paid to the owner, is not distinct from the second part, by which the time when the freight is to become due is fixed, and that being so, the event has not happened 1818. GIBBON against MENDEZ. 1818. GIBBON against MENDEZ. upon which the freight was to become payable; and, therefore, no freight is due. The case of Smith v. Wilson seems to me expressly in point. Judgment for Defendant. Friday, The vendor of goods had been in the habit of drawing bills in payment upon the vendee, and discounting the same with bankers, by MASON and Others against BARFF and Another. (a) ACTION by the plaintiff's Christopher Mason, John Bailey, John Langhorn, Thomas Hopper, Robert Botcherby, Richard Smith, William Farrer, and Thomas Clark, against William Barff and Thomas Barff, as the acceptors of two bills of exchange for 2001. each, drawn whom the bills by Richard Brankston, one dated 23d February, the other 9th March, 1815, payable three months after date to his own order, and indorsed by him. The defendants pleaded the general issue. The cause came on to be tried before Lord Ellenborough C. J. at the London sittings after Michaelmas term 1816, when a verdict was taken for the amount of the bills, subject to were transmit ted by post for acceptance: the vendee cautioned the bankers to inquire, when they discounted any such bills, whether the goods for which such bills were re spectively drawn the opinion of the Court had been deli vered, and the the opinion of the Court upon the following case. The carrier's receipt sent, and assured them that in that case they would be accepted. bankers afterwards discounted a bill, and transmitted the same for acceptance to the vendee, who detained it in his possession for ten days, and then informed the bankers that he could not accept the bill, as the invoice of the goods had not been delivered; and after a further interval of sixteen days, the bankers having made no objection to his detaining the bill, returned the same; the vendor having then stopped payment, without delivering the goods or sending the carrier's receipt: Held that the drawee of the bill was not liable as acceptor. Quære, Whether in any case the mere detention of a bill, for an unreasonable time, by the drawee, with whom it is left for acceptance, in point of law amounts to an accept ance. (a) This case was argued at Serjeants' Inn. The The plaintiffs Mason, Bailey, and Langhorn were the solvent partners of Arthur Mowbray, George Lewis Hollingsworth, and John Wetherell, and the plaintiffs Hopper, Botcherby, Smith, Farrer, and Clark, were assignees of the said Mowbray, Hollingsworth, and Wetherell, who since the drawing of the bills became bankrupts. The bankrupts, together with Mason, Bailey, and Langhorn, before the drawing of the bills, carried on the business of bankers at Berwick under the firm of Mowbray and Company. They also kept a banking shop at Wooler, a place about twenty miles from Berwick, at which place a Mr. George Bolton was their agent and manager. Richard Brankston, a Richard Brankston, a fellmonger residing at Wooler, in Northumberland, had, before the drawing of the bills in question, sold the defendants, who carried on an extensive wool trade at Wakefield, in Yorkshire, considerable quantities of wool at various periods, for the payments of which Brankston was in the habit of drawing bills upon defendants, as he made his consignments, which bills were discounted at the bank of Mowbray and Co. at Wooler by Bolton their agent: the bills so discounted were forthwith sent by Bolton to Mowbray and Co., and transmitted by them to the defendants at Wakefield for acceptance. On the 30th August, 1815, the following letter was sent by Messrs. Barff and Son to Mowbray and Co.: "We return you Richard Brankston on us 100%. at three months, accepted in London: in discounting Mr. Brankston any bills he may in future draw upon us, it might be well to inquire of him if he has delivered the wool he values for, and sent the carrier's receipt to us; in this case the draft is sure of being accepted without de 1818. MASON against BARFF. lay, 1818. MASON against BARFF. lay, as we always wish him to command the money on de→ livery of the article at Wooler." Brankston applied to Bolton on the 23d February, 1815, to have the first-mentioned bill for 2007. discounted, and told Bolton that the value in wool had been sent, and the carrier's receipt had been also remitted to Barff and Son, the defendants, which would ensure the regular acceptance of the bill; adding, also, that he should have another bill to draw in fourteen days, having wool to that amount to send to Barff and Son. Upon this application Bolton discounted the bill for 2007., and as usual immediately sent it to Mowbray and Co. at Berwick, to be remitted by them to defendants for acceptance, which was accordingly done, on the 25th February, 1815, accompanied by a letter, of which the following is a copy: "We enclose Richard Brankston's draft 2001., which we shall be obliged to you to accept and return to us." This letter, with the bill enclosed, was received by the Defendants, according to the course of the post, on the 27th February. On the 9th March following, Brankston again applied to Bolton as he had before intimated, to discount the other bill for 200l., dated the 9th March, 1815, upon Barff and Son; and Bolton not having had notice that the first bill had not been accepted, concluded it had been duly accepted; and being assured by Brankston that wool had been sent off to Barff and Son to the amount of both bills, and the carrier's receipt also transmitted to them, which would insure the acceptance of the second bill of 2007., discounted the same, and immediately transmitted it to Mowbray and Co., who forwarded it on the 11th of March, |