defendant in respect of the breach thereinafter alleged, and nothing happened to prevent the plaintiffs from maintaining the action for the same, yet the defendant had not paid the said bill, or any part thereof, and had always wholly neglected and refused so to do; and by reason of the premises the plaintiffs incurred and were put to divers costs and expenses in and about the presenting and noting of the said bill, and otherwise incidental to the dishonour thereof.

There was also a count for money had and received, money paid, and money found due upon accounts stated.

The defendant pleaded, to the first count,-1. That the defendant did not accept the said bill as alleged,-2. That the said Carlos Raffo did not endorse the said bill to the said Enrique Plana, as alleged,3. That the said Enrique Plana did not endorse the said bill to the plaintiffs, as alleged,-4. That the said bill was not duly presented to H. H. Stultzberger for payment, as alleged,-5. That the said bill was not duly presented to the defendant for payment, as alleged,-6. That when the bill of exchange in the said first count mentioned was made, there was no such person as Carlos Raffo, the supposed payee named in the said bill, but the name of Carlos Raffo was and is merely fictitious, whereof the defendant at the time of his acceptance of the said bill had no notice or knowledge,-7. That the said bill was *402] not duly protested for non-payment thereof, as alleged,-8. (to the second count), never indebted.

Hannen moved for leave to reply by way of estoppel, that the names of Raffo and Plana were already on the bill at the time the defendant accepted for honour. The application had been made to Crompton, J., at Chambers, but was negatived, on the ground that the matter might be given in evidence under the traverse of the endorsement. He referred to Ashpitel v. Bryan, 32 Law J., Q. B. 91, where Wightman, J. and Crompton, J., seem to have held that such matter need not be replied, but might be given in evidence under the traverse of the endorsement. That case, however, can hardly be called a deciston upon the point, inasmuch as all the pleadings but the traverse of the endorsement, &c., were struck out by consent, the defendant having leave to appeal, and the Court of error to have power to make all amendments to determine the question as to the quasi estoppel in pais. [WILLES, J.-Sanderson v. Collman, 4 M. & G. 209 (E. C. L. R. vol. 43), 4 Scott N. R. 638, is an authority to show that matter of estoppel in pais may be pleaded. But it is very clear that matter of estoppel in pais need not be pleaded.]

ERLE, C. J.-I am of opinion that the matter sought to be replied may be given in evidence under the traverse of the endorsement: and I am strongly of opinion that that is the more expedient course. The rest of the Court concurring,

Hannen took nothing.

[*403

*FALK v. FLETCHER and Another. Jan. 16. The plaintiff, a salt-merchant at Liverpool, was in the habit of shipping cargoes of salt there for De M., a merchant in London, on board vessels chartered by De M., charging him a commission in addition to the price, and getting bills of lading making the salt deliverable to his order, which bills of lading he sent with the invoice and a draft at four months to De M.

In November, 1863, De M. chartered the ship S. F., belonging to the defendants, to carry a cargo of salt from Liverpool to Calcutta,-freight to be paid one-third by freighter's acceptance at four months from the sailing of the vessel, the remainder on delivery of the cargo at Calcutta. Pursuant to instructions from De M., the plaintiff proceeded to load the S. F., and bad shipped 1007 tons (for which he took the mate's receipts in his own name), when he learned that De M. had stopped payment. He thereupon refused to load any more, and the defendants filled up the loading themselves. The plaintiff then produced to the defendants the mate's receipts for the 1007 tons, and demanded a bill of lading for that quantity, making it deliverable to his order. This the defendants refused, and the vessel sailed with the salt on board:Held, that it was properly left to the jury to say whether or not the plaintiff put the salt on board the S. F. with the intention of passing the property therein to De M.; and that (the jury having found that the plaintiff did not intend to pass the property to De M.) the sailing from Liverpool without giving the plaintiff a bill of lading in exchange for the mate's receipts, as demanded, was a conversion; and that the proper measure of damages was, the value of the salt at Liverpool at the time of sailing.

THIS was an action brought by the plaintiff, a salt-merchant at Liverpool, against the defendants, shipowners in London, for the alleged wrongful conversion of 1007 tons of salt, with the usual

common counts.

The defendants pleaded, to the first count, not guilty, and that the goods were not the goods of the plaintiff, and, to the rest of the declaration, never indebted.

The cause was tried before Blackburn, J., at the last Assizes at Liverpool, when the following facts appeared in evidence:-In November, 1863, one W. N. De Mattos, a merchant in London, entered into the following charter-party for a voyage to Calcutta :"London, November 12th, 1863.

"It is this day mutually agreed between G. H. Fletcher & Co., owners of the good ship or vessel called the Savoir Faire, A. 1 at Lloyd's, new iron ship, of 1400 tons or thereabouts, now in the port of Liverpool, whereof Meikle is master, and W. N. De Mattos, of London, merchant, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall with all possible despatch load, in the usual and customary manner, a full and complete cargo of salt, which the said freighter binds himself to *ship, [*404 not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; the freighter finding mats, and the ship dunnage, both as customary; and, being so loaded, shall therewith proceed to Calcutta, or so near thereto as she may safely get, and deliver the same alongside any craft, floating depôt, or pier where she can lie afloat, as ordered by the consignee: Notice to be given to the agents of the vessel being ready to discharge (the act of God, the Queen's enemies, pirates, fire, and all and every other dangers and accidents of the seas, rivers, and navigation during the said voyage being mutually excepted): The freight to be paid on unloading and right delivery of the cargo, at and after the rate of 21s. per ton on the quantity delivered, in full of all port-charges, pilotages, and Dover and Ramsgate dues as customary: and such

freight is to be paid, say, one-third by freighter's acceptance at four months from the final sailing of the vessel from her last port in the United Kingdom, less cost of insurance, and the remainder on the right delivery of the cargo agreeably to bills of lading, in cash, at current rate of exchange for bills on, London at six months: The vessel to deliver as customary, and the cargo to be discharged at the average rate of not less than sixty tons a working day, weather per mitting, or to pay demurrage at the rate of 4d. per ton register (0. M.) per diem: All claims for average to be settled in London in conformity with the rule at Lloyd's: The ship and her freight are bound for this venture: The penalty for non-performance of this agreement is to be 18001.

"In the event of the ship putting into Table or Timon's Bay, the captain is to address himself to Messrs. Dean, Brothers & Co., subject to reply by Friday the 31st instant, at noon, by telegraph.

"G. H. FLETCHER & Co. "W. N. DE MATTOS.

*The captain to apply to Mr. H. E. Falk for cargo and custom-house business."

*405] The plaintiff was in the habit of shipping cargoes of salt for De Mattos. The course of business between them was this:-When De Mattos took up a ship on charter-party, a copy of the charterparty was sent to the plaintiff, and he thereupon shipped the salt, "free on board," charging a commission which he included in the invoice-price,-De Mattos having no agent at Liverpool. The salt was thereupon shipped by the plaintiff from his own lighters, and weighed on board, the mate's receipt being given for the quantity received, which was afterwards exchanged for a bill of lading, making the salt deliverable to the plaintiff or his assigns. The plaintiff then sent the bill of lading to De Mattos in London, together with an invoice and a draft at four months for the price.

On the present occasion, after the plaintiff had in the usual way shipped about 1007 tons of salt on board the Savoir Faire, he received intelligence that De Mattos had stopped payment. He communicated the fact to the defendants, who thereupon wrote to De Mattos, as follows:

"Liverpool, December 9th, 1863. "Sir,-We write to inform you that Mr. Falk has stopped the loading of the Savoir Faire, on the ground, as he alleges, that you have stopped payment. We much regret that this should be so: but, having made all arrangements for the vessel's proceeding to sea at the end of this week, we must send her; and we are compelled to hold you liable for all loss and injury which we must sustain by reason of the vessel's loading not being completed.

"G. H. FLETCHER & Co." No reply to this letter was sent. The plaintiff then proposed to the defendants to allow him to complete the loading of the *406] ship on his own account; or that they should purchase the 1007 tons already on board, and complete the loading on their account; or to give him a bill of lading for the quantity he had shipped, he paying freight according to the charter-party. Feeling themselves fettered by the charter-party with De Mattos, the defend

ants declined to assent to either of these proposals: and, no more salt being sent on board by the plaintiff, the defendants completed the loading, and the vessel sailed with the salt on board on the 15th of December.

On the 16th, the plaintiff sent his clerk with the mate's receipts for the 1007 tons, and demanded a bill of lading in his own name. The defendants refused to give it. No offer of a draft for one-third of the freight, pursuant to the charter-party, was made. On the same day, a protest was made against the defendants for their refusal to sign bills of lading.

Upon the arrival of the Savoir Faire at Calcutta, Messrs. Gosche & Co., the plaintiff's agents, wrote to Messrs. Borradaile & Co., the defendant's agents, a letter, as follows:

"Calcutta, April 9th, 1864. To Captain Meikle, master of the ship Savoir Faire, and to Messrs. John Borradaile & Co., agents for the said ship.

"Gentlemen,-As agents for and on behalf of Mr. Hermann Eugene Falk, of Liverpool, the shipper per the said ship of 745 tons of stoved salt, and 262 tons of butter salt, we hereby present to you the mate's receipts (eleven in number) for the said salt, and demand the delivery thereof, we being ready and willing and hereby offering to pay freight for the same at the rate of 21s. per ton of 20 cwt. delivered. "R. G. GOSCHE & Co."

To this letter Messrs. Borradaile & Co. replied, as follows:-
Calcutta, April 9th, 1864.

[*407

"Messrs. R. G. Gosche & Co. "Dear Sirs,-We are in receipt of your favour of this date, addressed to Captain Meikle, of the Savoir Faire, and to ourselves as agents for the said ship, tendering us mate's receipts on behalf of Mr. Hermann Eugene Falk, of Liverpool, for 745 tons of stoved salt and 262 tons of butter salt shipped by the Savoir Faire, and offering to pay freight for the same at the rate of 21s. sterling per ton of 20 cwt. delivered.

"As we intimated to the bearer of your letter, to whom we returned the mate's receipts tendered by you, we decline to deliver the salt in question to your good selves as agents for Mr. H. E. Falk, of Liverpool, Messrs. G. H. Fletcher & Co., of Liverpool, the owners of the Savoir Faire, informing us that the late firm of Messrs. De Mattos & Co. were the shippers of the same, and that the proceeds will have to be accounted for to the estate of the firm.

"JOHN BORRADAILE & Co."

The salt was afterwards sold by Messrs. Borradaile & Co. at Calcutta, and realized 11547., which, after deducting 10501. for the freight and expenses, left 1047. as the value of the 1007 tons. The value of the salt at Liverpool on the day of sailing, without the freight and expenses, was proved to be 5827. 19s. 6d.

On the part of the defendants it was contended, that, by the delivery of the salt on board the Savoir Faire, the property passed to De Mattos, the delivery on board being as much a delivery to the vendee as if the salt had actually been delivered into the vendee's warehouse: and that the taking of the mate's receipts was nothing more than a means of ascertaining the quantities.

For the plaintiff, it was insisted that he had done nothing to divest *408] himself of the property in the salt, *and that the sailing of the vessel with the salt on board amounted to a conversion. The learned Judge left it to the jury to say whether or not the plaintiff by putting the salt on board the defendants' vessel had so parted with the possession as to vest the property therein in De Mattos, and whether the defendants had been guilty of a conversion,-telling them, that, if they thought that by delivering the salt on board the plaintiff intended to pass the property in it to De Mattos, and that the taking the mate's receipts in his own name was a mere accident, they might find for the defendants; but that, if they thought that by taking the receipts in his own name the plaintiff intended to retain a control over the property, they must find for the plaintiff; and that the sailing away from Liverpool with the salt without giving the plaintiff a bill of lading, was evidence of a conversion. As to the damages, the learned Judge told the jury that the plaintiff would be entitled to recover the value of the salt on the day of the conversion in Liverpool.

The jury returned a verdict for the plaintiff, damages 5827. 19s. 6d. E. James, Q. C., now moved for a new trial, on the grounds of supposed misdirection and that the verdict was against the evidence, and also on the ground of surprise as to the amount of damages. He submitted that there was no conversion of the salt by the defendants prior to the sailing of the ship from Liverpool, there having been no demand except the qualified proposals which the defendants declined to accept; and that the delivery of the salt on board a ship chartered by the buyer, irrespective of the form of the mate's receipts, passed the property to the buyer, and that the seller could not afterwards change its destination. *[WILLES, J.-Can he be said to have given *409] it a destination before he got a bill of lading? Having got the mate's receipts in his own name, he was the only person who would be entitled to demand a bill of lading.] The plaintiff was acting as agent for De Mattos. He had notice of the charter-party, which fixed the destination of the ship; and he could not alter it. The fact of his having taken the mate's receipts in his own name was only a circumstance. The learned Judge, therefore, was wrong in telling the jury that what occurred at Liverpool amounted to a conversion. He was also wrong in telling the jury that they might give as damages the value of the goods at the time of the sailing from Liverpool; whereas, the only conversion was the sale at Calcutta. Assuming that the conversion was at Liverpool, the damages were calculated upon a wrong basis.(a)

case.

ERLE, C. J.-I am of opinion that there should be no rule in this The plaintiff was in reality in the position of an unpaid vendor. As agent for De Mattos, he put the salt on board a ship chartered by De Mattos, taking the mate's receipts for it in his own name. Under these circumstances, the proper question for the jury, and the ques(a) He produced affidavits showing that the amount claimed and allowed by the jury as the price of the salt at Liverpool was extravagant; that the price which the defendants paid for the quantity required to fill up the ship was 6s. per ton for stoved salt, and 58. per ton for butter salt, at which prices the value of 745 tons of the former and 262 tons of the latter, including river freight and dock and town dues, would have been 4507. 12s. 6d., and the cost of mats for dunnage 157.