Opinion of the court. as applied to the cargo, that the lien may be displaced by an inconsistent and irreconcilable provision in the charter-party or bill of lading, making it the duty of the master to deliver the goods unconditionally before the consignee is required to pay the freight. Saving that exception, the rule is universal that the ship and freight are bound to the merchandise and the merchandise to the ship. Shipowner contracts for the safe custody, due transport, and right delivery of the merchandise, and the shipper, consignee, or owner of the cargo contracts to pay the freight and charges. These are reciprocal duties, and the law creates reciprocal liens for their enforcement, but the lien of the shipowner may be displaced, as before explained, or it may be waived. Such a lien-that is, the lien of the shipowner-is not "the privileged claim" of the civil law, but it arises merely from the right of the shipowner to retain the possession of the goods until the freight is paid, and therefore it is lost by an unconditional delivery of the goods to the consignee. Subject to this explanation, the maxim that the ship is bound to the merchandise and the merchandise to the ship for the performance of all the obligations created by the contract of affreightment, is the settled rule in all the Federal courts.* 3. Contracts of affreightment, notwithstanding it is held that the lien of the shipowner is nothing more than the right to withhold the goods, and is inseparably associated with his possession, are regarded by the courts of the United States as maritime contracts over which the courts of admiralty have jurisdiction, and consequently that either party in a proper case may enforce his lien by a proceeding in rem in the District Court. Where the ship is in fault, the usual remedy of the consignee is by the proceeding in rem; but where the shipper, owner, or consignee of the cargo is in fault, the shipowner usually finds an adequate remedy by retaining the goods until the freight and charges are paid. His right to do so is beyond doubt, but he cannot detain the goods on board the ship until the freight is paid, as the con *Dupont v. Vance, 19 Howard, 168. Opinion of the court. signee or owner of the cargo would then have no opportu nity of examining their condition. Practice in England is to send such goods as are not required to be landed at any particular dock to a public wharf, and order the wharfinger not to part with them till the freight and other charges are paid; and it is held that in such cases the lien of the master continues, as the goods remain in his constructive possession.* 4. Delivery on the wharf in the case of goods transported by ships is sufficient under our law, if due notice be given to the consignees and the different consignments be properly. separated, so as to be open to inspection and conveniently accessible to their respective owners. Where the contract is to carry by water from port to port an actual delivery of the goods into the possession of the owner or consignee, or at his warehouse, is not required in order to discharge the carrier from his liability. He may deliver them on the wharf; but to constitute a valid delivery there the master should give due and reasonable notice to the consignee, so as to afford him a fair opportunity to remove the goods, or put them under proper care and custody. When the goods, after being so discharged and the different consignments properly separated, are not accepted by the consignee or owner of the cargo, the carrier should not leave them exposed on the wharf, but should store them in a place of safety, notifying the consignee or owner that they are so stored, subject to the lien of the ship for the freight and charges, and when he has done so he is no longer liable on his contract of affreightment.‡ 5. Parties may agree that the goods shall be deposited in the warehouse of the consignee or owner, and that the * Chitty & Temple on Carriers, 222; Ward v. Felton, 1 East, 512; Machlachlan on Shipping, 369. +2 Parson on Contracts, 5th ed. 195; Ship Middlesex, 21 Law Rep. 14. Richardson et al. v. Goddard et al., 23 Howard, 39; 1 Parson's Maritime Law, 153; Machlachlan on Shipping, 367; Hyde v. T. & M. Nav. Co., 5 Term, 389; 2 Parsons on Contracts, 5th ed. 191; Brittan v. Barnaby, 21 Howard, 532. N " Opinion of the court. transfer and deposit shall not be regarded as a waiver of the lien, and where they so agree the courts of admiralty will uphold the agreement and support the lien; but there was no agreement in this case. The appellants refused to pay the freight, and the master declined to part with the possession of the goods. He discharged the cargo upon the wharf, gave due notice to the consignees, and they refused to pay the freight, claiming that they had a right, by the usages of the port, to remove the goods to their store for inspection, without paying freight. They examined witnesses upon that subject, but it is sufficient to say that they failed to prove any such usage. Relying on proof of such a usage, they refused to accept the goods, and the master stored them in a place of safety and gave due notice to the libellants. 6. Misinterpreting the mandate of this court, the district judge came to the conclusion that the interlocutory decree entered in the cause before the former appeal could be supported by proof of the subsequent misconduct of the bailee of the goods, who sold certain portions of them to pay the charges for storage. All we think it necessary to say upon the subject is that none of those questions are involved in the pleadings in this record. Present libel was in rem against the vessel for the non-delivery of the consignment of the libellants. Respondents appeared and set up the defence that the goods were subject to the lien of the vessel for the freight, and that the libellants, without just cause or excuse, refused to pay the freight, and they fully proved their defence. Having proved their defence, they were entitled to a decree in their favor, wholly irrespective of any subsequent misconduct of the bailee of the goods, who was not before the court. The decree of the Circuit Court is therefore AFFIRMED WITH COSTS. Statement of the case. HANSBROUGH V. PECK. 1. Where in part performance of an agreement a party has advanced money, or done an act, and then stops short and refuses to proceed to its conclusion, the other party being ready and willing to proceed and fulfil all his stipulations according to the contract, such first-named party will not be permitted to recover back for what has thus been advanced or done. 2. By the statutes of Illinois, as existing in January, 1857, a contract for a rate of interest exceeding six per cent., did not invalidate the contract. 3. Where a parol promise is, in substance, but the same with a written one, which the party is already bound to perform, and where all that is done on the former is in fact but in fulfilment of the latter,-no new consideration passing between the parties,-the existence or enforcement of the parol contract cannot be set up as a rescission of the written one. ERROR to the Circuit Court for the Northern District of Illinois. In January, 1857, Hansbrough and IIardin agreed with one Peck to buy certain lots in Chicago for $134,000. The purchase-money was made payable in nine instalments, each being for $4300, except the last, payable April 28th, 1861, which was for $90,000. The lots had on them at the time two wooden houses and a barn. By the contract it was agreed "that the prompt performance of the covenants, and payment of the money shall be a condition precedent, and that TIME IS OF THE ESSENCE OF THE CONDITION.” And also "that in case default shall be made in the payment of any or either of said notes, or any part thereof, at the time or any of the times above specified for the payment thereof, for thirty days thereafter, the agreement, and all the preceding provisions thereof, shall be null and void, and no longer binding, at the option of said vendor. And all the payments which shall have been made, absolutely and forever forfeited to said vendor, or at his election the covenants and liability of the purchasers shall continue and remain obligatory." And also "that in case of default in the payments promptly on the days named by the purchasers, that it is also the right Statement of the case. of said vendor to declare the contract ended, and prior payments forfeited, and to consider all parties in the possession of the premises at the time of such default, tenants at will of said vendor at a rent equal to ten per cent. on the whole amount of said purchase-money. And the vendor from that time is declared to be restored, with the possession and right of possession in the premises, to the exercise of all powers, rights, and remedies provided by law or equity to collect such rent, or remove such tenants, the same as if the relation of landlord and tenant were created by an original, absolute lease for that purpose on a special rent payable quarterly on a tenure at will, and that the said tenants will not commit or suffer any waste or damage to said premises or the appurtenances; but, on the termination of such tenancy, will deliver the premises in as good order and repair as they were at the commencement of such tenancy." By a statute of Illinois* "The rate of interest upon the loan or forbearance of any money, goods, or things in action, shall continue to be six dollars upon one hundred dollars for one year. "Any person who, for any such loan, discount, or forbearance, shall pay or deliver any greater sum or value than is above allowed to be received, may recover in an action against the person who shall have taken or received the same threefold the amount of money so paid, or value delivered above the rate aforesaid, either by an action of debt in any court having jurisdiction thereof, or by bill in chancery in the Circuit Court, which court is hereby authorized to try the same: PROVIDED, said action shall be brought or bill filed within two years from when the right thereto accrued." Under this contract, and in the state of the law above stated, the purchasers went into possession, and laid out $18,000 in improving the property by building on it. They paid $10,000, also, ou account of the notes, and about two years' interest. After erecting these improvements, and * 1 Firple's Statutes, p. 633. |