tile documents are drawn up with reference to judicial decisions, I am not prepared to overrule any of the cases cited before us, although I dissent from the principle on which they were founded.

Three interpretations of the clause may be suggested. By the first, liability of every kind, as well for past as for future breaches, is to cease so far as the charterer is concerned. By the second the charterer is exempted only from future liability, that is, after the loading of the ship; but in each case the shipowner can enforce his remedy against the consignee by his lien on the cargo. By the third the charterer's liability is to cease, but only a partial remedy is given to the shipowner by the lien against the consignee, that is, he can exercise his lien for demurrage, but not for detention. If this last were the legal interpretation of the clause, I should think it so unjust that I should be prepared to overrule former decisions upon which it is based, for I cannot think that it would express the real agreement of the parties; but I am inclined to think that the interpretation to be adopted at the present day is that the charterer's liability for past breaches is to cease upon loading the cargo, but the remedy of the shipowner is given against the consignee to the extent of his remedy against the charterer, that is to say, the lien is given in full for all breaches for which the shipowner would but for this clause have had a remedy against the charterer. I know that in this case it is unnecessary to say that the lien is given for more than demurrage properly so called at the port of loading, but I cannot be a party to construing such a clause as this, and holding that it absolutely absolves the charterer from all liability, past as well as future, without considering what must take place were we also to hold that the lien were given simply for de- [560 murrage properly so called. The consequence would be that if the ship were detained at the port of loading beyond the demurrage days, the liability of the charterer when the ship was loaded would cease; there could be no action against him for detention, and yet there would be no lien upon the cargo for anything but demurrage proper, and the shipowner would be obliged to deliver the cargo to the consignee on payment of the demurrage. He would have no action against the consignee for detention at the port of loading, and notwithstanding the fault of the charterer, he would have no remedy against any one. The result would be so unjust that I cannot think that this construction was meant by the parties. It may be said that this difficulty may be obviated by holding that the liability of the shipowner was to

11 ENG. REP.

46

cease only in respect of the delay of the vessel during the demurrage days, and that the lien would attach for that only, and that, notwithstanding the clause of exemption, a right of action would remain against the charterer for delaying the ship at the port of loading beyond the demurrage days. That construction seems hardly consistent with the decisions in which it has been held that the charterer's liability is to cease for past breaches of the charterparty, at all events in the detention of the ship. I feel certain that when the occasion arises it will be held, upon a clause like this, containing a cesser of liability of the charterer and a lien for demurrage, that "demurrage" includes not only demurrage proper, but also that which is in the nature of demurrage, viz., detention at the port of loading. This will make the contract just and reasonable, and it may be fairly held that the parties contemplated this construction. It is because I have future decisions in my mind that I can construe this clause as a discharge of the liability of the charterer; otherwise I should be prepared to hold that the clause related only to breaches after the ship was loaded, and the charterer was liable for any breaches happening before. But for the reasons I have stated I agree that the judgment of the court below must be affirmed.

*

CLEASBY, B.: In construing the clause in question, one may properly consider the object of introducing it. It is obvious that if it had reference to an enterprise of the char561] terer-that is, if he was the merchant shipping his coals from Hull to Alexandria for sale there, the clause would be useless, because it could make no real difference to him whether he or his goods were to pay the freight or demurrage. But a captain whose ship is at Cardiff will not proceed to Hull upon the chance of finding a cargo or an incomplete cargo on which he could have a lien, and therefore he requires the liability of a responsible person that he shall have a cargo, and a complete cargo; but he is ready to agree that, as soon as he has a complete cargo, he will look to his lien, and the charterer makes himself liable till a complete cargo is loaded, and he is to be discharged afterwards. This is only the general idea; but, of course, in seeing what the effect of the clause is in each case, we must look at the language of each charter; and in considering the present case, as several judgments to which I have been a party have been referred to as authorities, I prefer to rest the conclusion rather upon reason than upon authority.

I think that the natural meaning of the words "liability to cease" is that the charterer's liability is to be put an end

to upon a certain event, not that his obligation should cease as regards carrying into effect the contract afterwards. These words "liability to cease" were the words used in all the cases, such as Oglesby v. Yglesias (') and Milvain v. Perez (), where some matters, in respect of which the liability was to cease, were expressly matters which arose before the loading was complete, and where the words were held to put an end to a past liability, and not to a future obligation: see the judgment of Hill, J., in the last-cited case. So far as the position of the shipowner, as well as of the charterer, is concerned, it makes no difference whatever whether the demurrage accrues at the port of loading or at the port of discharge. In either case the shipowner has his lien, and it does not appear to be reasonable to hold that, if the demurrage accrued at the port of discharge, the charterer should be released, as the shipowner could look to his lien, but if it occurred at the port of loading he could not. No argument was addressed to us in the present case upon the difficult question whether the charterer would be discharged from liability for unliquidated damages in [562 respect of detention, as distinguished from the agreed payment for demurrage during ten days. On this question I will only remark that the clause may fairly be considered aş referring to those matters, such as payment, which are contemplated as arising upon the contract, and not to those which arise from a breach of the contract by detention. The same difficulty as regards detention would arise whether it took place at the port of loading or of discharge.

In the present case, notwithstanding the place where the demurrage clause occurs, I feel satisfied that if the ship occupied more than thirteen days in loading-say fifteen days that two days would go down as demurrage, and that if there was no further demurrage at the port of discharge, the plaintiff would be entitled to recover the two days as demurrage, and to have his lien for it, and would not be put to an action for detention. It appears to me, therefore, that this action is brought for demurrage covered by the lien, and that the defendant is discharged from that liability.

GROVE, J.: I am of the same opinion. I agree substantially with what has fallen from my Brother Brett. If I had to decide this case apart from authority, not only the grammatical, but also the normal, meaning of the sentence in question, "charterer's liability to cease when ship is loaded," would seem to me to be that the charterer was not (') E. B. & E, 930; 27 L. J. (Q.B.), 356. (†) 3 E. & E., 495; 30 I.. J. (Q.B.), 90.

to incur any fresh liability after the ship is loaded, there being a remedy for the shipowner by his lien; but that the charterer remains liable for breaches before the loading; the authorities, however, are too strong to be overruled even in a court of error. I think it would so unsettle mercantile documents that I cannot adopt that construction which appears to be the reasonable construction.

With regard to the other questions, I agree with my Brother Brett.

POLLOCK, B.: I am also of opinion that the judgment of the court below must be affirmed.

I should certainly be prepared to hold that the cesser of liability and the operation of the lien must be taken correlatively, and that the charterer's liability is to cease only 563] to the extent that the owner has a lien on the cargo for freight and demurrage. This clause has had a meaning given to it by a series of decisions which it would be very undesirable now to disturb, and I think that Francesco v. Massey () was soundly decided, and that the cases there referred to were properly relied upon.

AMPHLETT, B.: I am of the same opinion, and I would only add one word with regard to the clause making the charterer's liability to cease. It appears to me it must exactly coincide with the lien, otherwise there would be that great injustice which has been pointed out by my Brother Brett. The charterer's liability would be abrogated without giving the shipowner any compensation. There are two ways, and two ways only, in which that injustice could be remedied either to say "the charterer's liability to cease" does not go beyond the freight and demurrage properly so called, which are subject to the lien; or to say that demurrage, where mentioned in the lien clause, includes what may properly be called detention. Either one or other of those constructions, I think, must be the right one. It is not for me to say which construction would be the right onewhether to limit the liability of the charterer, or to extend the lien, because we agree that there is in this case a demurrage properly so called, and therefore that the exemption from liability extends to the loading as well as to the unloading days. I agree with the rest of the court that the judgment of the court below must be affirmed.

Judgment affirmed. Attorneys for plaintiff: Shum, Crossman & Crossman. Attorney for defendants: R. B. Lowndes.

(1) Law Rep., 8 Ex., 101. See 13 Eng. Rep., 291, note.

Carter v. Scargill.

1875

[Law Reports, 10 Queen's Bench, 564.]
May 27, 1875.

*CARTER V. SCARGILL.

Contract-Condition precedent-Part Performance of Consideration.

[564

By an agreement between plaintiff and defendant of the 7th of September, 1867, after a statement of the weekly expenditure and profits of plaintiff's business as a printer and publisher of a newspaper, it was agreed that, in the event of the business being proved by the books kept by plaintiff to realize a clear profit of £7 per week, as shown by the above statement, defendant should pay plaintiff £50 on the 24th of December, 1867, £50 on the 24th of June, £100 at Christmas, 1868, and £200 within four years from the 25th of December, 1867. In consideration of the premises plaintiff agreed to sell to defendant all the plant and furniture on the premises, and the goodwill of the business, with all the earnings subsequent to the 30th of September, 1867, and the house and premises then occupied by plaintiff.

The defendant, on the 30th of September, 1867, entered into possession of the house, with the plant and furniture, and of the business, which he thenceforward carried on until he afterwards sold it. After the lapse of the four years, plaintiff brought an action for the instalments, and the defendant sought to set up as a defence that the business was not proved to be worth £7 clear profit per week:

Held, that, assuming that this, if the contract had remained executory, would have been a condition precedent, yet the defendant, having had a substantial part of the consideration, could not now set up the non-performance as a defence.

DECLARATION Setting out at length an agreement between plaintiff and defendant. "An agreement, made the 7th of September, 1867, between Albert Carter (the plaintiff), of Luton, in the county of Bedford, printer and publisher of the Luton Advertiser, of the one part, and Frank Chapman Scargill (the defendant), of the same place, gentleman, of the other part.

"Estimated produce of the said Albert Carter's business:

*It is agreed between the parties hereto that, in the [565 event of the business now sold by Carter being proved by the books heretofore kept by Carter realizing a clear profit of £7 per week, as shown by the before-mentioned statement, then Scargill hereby agrees to pay to Carter the sum of £50 on the 25th of December next, £50 on the 24th of June following, £100 in Christmas, 1868, and £200 within four years from the 25th of December, 1867. Carter is to be