*would be treated as a pledge or mortgage only, and Westzinthus would be considered as having resumed his former interest in the goods, subject to that pledge or mortgage,-in analogy to the common case of a mortgage of a real estate, which is considered as a mere security, and the mortgagor as the owner of the land. We therefore think that Westzinthus, by his attempted stoppage in transitu, acquired a right to the goods in equity (subject to Hardman's lien thereon) as against Lapage and his assignees, who are bound by the same equities that Lapage himself was. And this view of the case agrees with the opinion of Mr. Justice Buller, in his comment on the case of Snee v. Prescott, in Lickbarrow v. Mason (n). If, then, Westzinthus had an equitable right to the oil, subject to Hardman's lien thereon, for his debt, he would, by means of his goods, have become a surety to Hardman for Lapage's debt, and would then have a clear equity to oblige Hardman to have recourse against Lapage's own goods deposited with him, to pay his debt in ease of the surety; and all the goods, both of Lapage and Westzinthus, having been sold, he would have a right to insist upon the proceeds of Lapage's goods being appropriated, in the first instance, to the payment of the debt."

It has been thought advisable not to withdraw these cases from the attention of the reader, although the law upon the subject has since their decision undergone a material alteration.

By the 5 & 6 Vict. c. 39, reciting the 6 Geo. 4, c. 94, and that under it advances could not safely be made on goods or documents to persons known to have possession as agents only; that it was necessary that the same protection should be given to advances on goods as to sales, and that owners who would be bound by a contract of sale should be bound by a contract of lien; and that the Act did not protect exchanges of securities, it was enacted

"That from and after the passing of this Act, any agent who shall thereafter be entrusted with the possession of goods, or of the documents of title to goods, shall be deemed and taken to be owner of such goods and documents, so far as to give validity to any contract or agreement by way of pledge, lien, or security, bond fide made by any person with such agent so entrusted as aforesaid, as well for any original loan, advance, or payment made upon the security of such goods and documents, as also for any further or continuing advance in respect thereof, and such contract or agreement shall be binding upon and good against the owner of such goods, and all other persons interested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom such contract or agreement is made is only an agent (o).

"That where any such contract or agreement for pledge, lien, or security, shall be made in consideration of the delivery or transfer to such agent of any other goods or merchandise, or document of title or negotiable security, upon which the person so delivering up the same * had at the time a valid and available lien and security for or in (0) Sec. 1.

(n) 6 East, 29, note.

* respect of a previous advance by virtue of some contract or agreement made with such agent, such contract and agreement, if bonâ fide on the part of the person with whom the same may be made, shall be deemed to be a contract made in consideration of an advance within the true intent and meaning of this Act, and shall be as valid and effectual, to all intents and purposes, and to the same extent, as if the consideration for the same had been a bonâ fide present advance of money: Provided always, that the lien acquired under such lastmentioned contract or agreement upon the goods or documents deposited in exchange shall not exceed the value at the time of the goods and merchandise which, or the documents of title to which, or the negotiable security which, shall be delivered up and exchanged(p). "That this Act, and every matter and thing herein contained, shall be deemed and construed to give validity to such contracts and agreements only, and to protect only such loans, advances, and exchanges as shall be made bond fide, and without notice that the agent making such contracts or agreements as aforesaid has not authority to make the same, or is acting malâ fide in respect thereof against the owner of such goods and merchandise, and nothing herein contained shall be construed to extend to or protect any lien or pledge for or in respect of any antecedent debt owing from any agent to any person with or to whom such lien or pledge shall be given, nor to authorize any agent entrusted as aforesaid in deviating from any express orders or authority received from the owner; but that for the purpose and to the intent of protecting all such bonâ fide loans, advances, and exchanges as aforesaid (though made with notice of such agent not being the owner, but without any notice of the agent's acting without authority), and to no further or other intent or purpose, such contract or agreement as aforesaid shall be binding on the owner and all other persons interested in such goods (q).

"That any bill of lading, India warrant, dock warrant, warehousekeeper's certificate, warrant, or order for the delivery of goods, or any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented, shall be deemed and taken to be a document of title within the meaning of this Act; and any agent entrusted as aforesaid, and possessed of any such document of title, whether derived immediately from the owner of such goods, or obtained by reason of such agent having been entrusted with the possession of the goods, or of any other document of title thereto, shall be deemed and taken to have been entrusted with the possession of the goods represented by such document of title as aforesaid, and all contracts pledging or giving a lien upon such document of title as aforesaid shall be deemed and taken to be respectively pledges of and liens upon the goods to which the same relates; and such agent shall be deemed to be possessed of such goods or documents, whether the same shall be in his actual custody, or (9) Sec. 3.

*

(p) Scc. 2.

* shall be held by any other person subject to his control, or for him, or on his behalf; and where any loan or advance shall be bonâ fide made to any agent entrusted with and in possession of any such goods or documents of title as aforesaid, on the faith of any contract or agreement in writing to consign, deposit, transfer, or deliver such documents of title as aforesaid, and such goods or documents of title shall actually be received by the person making such loan or advance, without notice that such agent was not authorized to make such pledge or security, every such loan or advance shall be deemed and taken to be a loan or advance on the security of such goods or documents of title within the meaning of this Act, though such goods or documents of title shall not actually be received by the person making such loan or advance till the period subsequent thereto; and any contract or agreement, whether made direct with such agent as aforesaid, or with any clerk or other person on his behalf, shall be deemed. a contract or agreement with such agent; and any payment made, whether by money or bills of exchange, or negotiable security, shall be deemed and taken to be an advance within the meaning of this Act; and an agent in possession as aforesaid of such goods or documents shall be taken, for the purposes of this Act, to have been entrusted therewith by the owner thereof, unless the contrary can be shown in evidence (r)."

"That nothing herein contained shall lessen, vary, alter, or affect the civil responsibility of an agent for any breach of duty or contract, or non-fulfilment of his orders or authority, in respect of any such contract, agreement, or pledge as aforesaid (s).

"That if any agent entrusted as aforesaid shall, contrary to or without the authority of his principal in that behalf, for his own benefit and in violation of good faith, make any consignment, deposit, transfer, or delivery of any goods or documents of title so entrusted to him as aforesaid, as and by way of a pledge, lien, or security; or shall, contrary to or without such authority, for his own benefit and in violation of good faith, accept any advance on the faith of any contract or agreement to consign, deposit, transfer, or deliver such goods or documents of title as aforesaid; every such agent shall be deemed guilty of a misdemeanor, and being convicted thereof, shall be sentenced to transportation for any term not exceeding fourteen years, nor less than seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the Court shall award; and every clerk or other person who shall knowingly and wilfully act and assist in making any such consignment, deposit, transfer, or delivery, or in accepting or procuring such advance as aforesaid, shall be deemed guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the Court, to any of the punishments which the Court shall award, as hereinbefore last-mentioned: Provided, nevertheless, that no such agent shall be liable to any prosecution for consigning, depositing, transferring, or delivering any such goods or documents of *title, in case the same shall not be made a security for or subject to

*the payment of any greater sum of money than the amount which at the time of such consignment, deposit, transfer, or delivery, was justly due and owing to such agent from his principal, together with the amount of any bills of exchange drawn by or on account of such principal, and accepted by such agent: Provided also, that the conviction of any such agent so convicted as aforesaid shall not be received in evidence in any action at law or suit in equity against him, and no agent entrusted as aforesaid shall be liable to be convicted by any evidence whatsoever in respect of any act done by him, if he shall, at any time previously to his being indicted for such offence, have disclosed such act, on oath, in consequence of any compulsory process of any Court of Law or Equity in any action, suit, or proceeding, which shall have been bonâ fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioner of bankrupt (t).

"That nothing herein contained shall prevent such owner as aforesaid from having the right to redeem such goods or documents of title pledged as aforesaid, at any time before such goods shall have been sold, upon repayment of the amount of the lien thereon, or restoration of the securities in respect of which such lien may exist, and upon payment or satisfaction to such agent, if by him required, of any sum of money for or in respect of which such agent would by law be entitled to retain the same goods or documents, or any of them, by way of lien as against such owner, or to prevent the said owner from recovering of and from such person with whom any such goods or documents may have been pledged, or who shall have any such lien thereon as aforesaid, any balance or sum of money remaining in his hands as the produce of the sale of such goods, after deducting the amount of the lien of such person under such contract or agreement as aforesaid: Provided always, that in case of the bankruptcy of any such agent the owner of the goods which shall have been so redeemed by such owner as aforesaid shall, in respect of the sum paid by him on account of such agent for such redemption, be held to have paid such sum for the use of such agent before his bankruptcy, or in case the goods shall not be so redeemed the owner shall be deemed a creditor of such agent for the value of the goods so pledged at the time of the pledge, and shall, if he shall think fit, be entitled in either of such cases to prove for or set off the sum so paid, or the value of such goods, as the case may be " (u).

OF THE DISSOLUTION

CHAPTER XII.

OF CONTRACTS FOR THE CARRIAGE OF GOODS

IN MERCHANT SHIPS; AND HEREIN,

(Ss.) 1. Of Dissolution by Mutual Consent.

2. By events rendering the performance of the Contract illegal;-of War and Embargoes.

3. Of Blockade of the Port of Departure.

4. Of Blockade of the Port of Destination. 5. Recent Decisions.

HAVING thus considered the several species of contract made for the carriage of goods in merchant ships, and the various duties arising therefrom, I proceed in the last place to the examination of the modes by which contracts of this nature may be dissolved. And these are, either the voluntary act of the contracting parties, or some extrinsic matter happening after the making of the contract and before its completion.

1. It is a general rule that whatever derives its force and validity from the consent of parties, may by the mutual consent of the same parties be rendered null and invalid. There is, indeed, a technical rule of the law of England, which requires the discharge of a person from a contract to be made by an instrument of as high a nature as the original instrument of contract; and this rule is applicable to the contract of affreightment by charter-parter under seal: but in case of a discharge by mutual consent not expressed in this formal manner, the rule would at the utmost have no other effect than to render it necessary for the party to apply to a Court of Equity. In all such cases, however, prudence requires that the deed should be cancelled and delivered up.

But a merchant, who has laden goods, cannot insist upon having them re-landed and delivered to him without paying the freight that might become due for the carriage of them, and indemnifying the master against the consequences of any bill of lading signed by him (a).

"We

*(a) 2 Eq. Ca. Ab. p. 98, Anon. Thompson v. Trail, 2 Carr. & P. 334; ante, p. 216; and Tindall v. Taylor, 4 E. & B. 219. entirely agree," said Lord Campbell (delivering judgment in this latter case, and adverting to this passage), "in the law laid down by Lord Tenterden in his treatise, and in Thompson v. Trail, when applied to a general ship. By the usage of trade, the merchant, if he re-demands the goods in a reasonable time before the ship sails, is entitled to have them delivered to him on paying the freight that might become due for

the carriage of them, and on indemnifying the master against the consignees of any bills of lading he may have signed for them; but these are conditions to be performed before the original contract can be affected by the demand of the goods. It would be most unjust to the owners and master of the ship if we were to hold that upon a simple demand, at any time, the goods must be delivered back in the port of outfit."-By the Code de Commerce, in such a case, art. 291, the merchant is enabled to reclaim his goods on payment of half of the freight to