Opinion of the court. held that the freight was not payable until two mouths after the inward report, and that the ship-owner had not any lien on the cargo for the freight, because the delivery of the goods was required to precede the payment of the chartermoney. Terms of the charter-party in the case of Foster v. Colby,* were substantially the same, so far as respects the principal question in this case. Freight was payable in that charterparty in three instalments, but the terms of the first two payments are unimportant. Material clause reads as follows, to wit: "The remainder in cash, two months from the vessel's report inwards, and after right delivery of the cargo, or under discount at five per cent. per annum, at freighter's option." Held, that the charter-party did not create any lien in respect of that part of the freight which was payable two months after the vessel's inward report, although the charter-party contained the stipulation that the owners of the ship should "have an absolute lien on the cargo for all freight, dead freight, and demurrage." Latter clause was intended, as the court held, not to enlarge the right of lien for freight, as generally understood, but to include dead freight and demurrage within the operation of the general provision. 7. Words of the charter-party in this case are that the third instalment shall be paid by "bill, at three months from date of delivery at charterer's office, in Liverpool, of the certificate of the right delivery of the cargo, agreeably to the bills of lading." Giving the usual meaning to language, it is plain that the intent of the parties was that the delivery of the goods should precede the payment of the freight, and it is equally clear that the delivery was to be without qualification and unconditional. Certificate of right delivery of the cargo could not be obtained until the vessel was discharged, and the cargo delivered, and, if forwarded by the next steamer, a month would elapse before it could be delivered at charterer's office in Liverpool, which would * 8 Hurlstone & Norman, 715. Opinion of the court. extend the credit to four months from the delivery of the cargo. 8. Appellants contend that, inasmuch as the charterer failed in business and became a bankrupt before the vessel arrived at the port of discharge, the case is taken out of the operation of those rules of law, even in respect to the last instalment. Basis of this argument is a supposed analogy between the ship-owner as against the shipper, and the vendor of merchandise as against the vendee, as exemplified in the law of stoppage in transitu, but it is not perceived that any such relation exists between the ship-owner and the charterer, or that there is any foundation whatever for the argument. Intention of the parties in the contract of affreightment, as in other commercial contracts, must be ascertained from the language employed, the subject-matter, and the surrounding circumstances, and it is clear that the question of construction cannot be affected in the smallest degree by the subsequent solvency or insolvency of one of the contracting parties. Credit was given in this case to the charterer for the payment of the last instalment of the freight of four months from the time when the goods were required by the terms of the instrument to be delivered to the consignee at the port of discharge, and it is too plain for argument that the subsequent insolvency of the charterer can neither erase that clause from the charter-party or shorten the term of the credit.* Insolvency of shipper occurring while the goods are in transit, or before they are delivered, will not absolve the carrier from his agreement as made, nor authorize him to retain the goods until the freight is paid, unless the lien exists independently of that occurrence.† 9. Claim of the appellants, also, is that the ship in this case had a lien for the second instalment of the freight, secured by the charterer's acceptance, made payable in six Alsager v. Dock Co., 14 Meeson & Welsby, 798; Tamvaco v. Simpson, 1 Law Rep. C. P. 371; Same case, 19 Common Bench, N. S. 478. Crawshay v. Homfray, 4 Barnewall & Alderson, 50; Chandler v. Belden, 18 Johnson, 157; Fieldings v. Mills, 2 Bosworth, 498. Opinion of the court. months from date, and delivered to the ship-owner on the day the ship sailed. Acceptance became due, and the charterer also became a bankrupt before the vessel arrived at the port of discharge, and it is admitted that the acceptance is still held and owned by the ship-owner. Established rule in this court is, that a bill of exchange or promissory note given for a precedent debt does not extinguish the debt or operate as payment of the same, unless such was the express agreement of the parties. Agreement of the parties filed in the case and made a part of the record, shows that the acceptance was presented to the bankrupt court, and that it has never been paid, and it is not pretended that it is of any value. Valueless as the acceptance is, the objection if made, that it had never been tendered to be cancelled, would be a mere technicality, but no such objection is made, and as the parties agree that it has never been negotiated it must be understood that any such objection is waived. Payment of that instalment of the freight therefore is not proved, and there is no evidence in the record tending to show that the lien for that instalment of the freight was ever waived. Ship-owner under the circumstances has a right to stand upon the original contract and to seek his remedy to that extent of his claim in the form to which it originally belonged as fully as if the acceptance had never been given.* Entire freight under this chartér-party, except the small advance stipulated to be made at the port of discharge, was to be paid in the port of shipment. Port of shipment was also the port where the ship lay when the contract was made, and the terms of the contract afford the most plenary evidence that the parties regarded the charter-money stipulated to be paid at that port as freight in the usual and proper sense in which that word is understood in the maritime law.† 10. Suppose, however, a different rule could be applied to Steamer St. Lawrence, 1 Black, 533; The Kimball, 3 Wallace, 45; The Active, Olcott, Admr. 206; Bark Chusan, 2 Story, 457. Gilkison v. Middleton, 2 Common Bench, N. S. 152; Neish v. Graham 8 Ellis & Blackburne 310; Gracie v. Palmer, 8 Wheaton, 605. Opinion of the court. the sum actually paid or advanced before the vessel sailed. Still that concession, if made, would not affect the question as to the second instalment in this case, because that instalment was not advanced in money, and has never been paid. Separated from the acceptance, which, under the decisions of this court, was not payment, it presents the ordinary case of a promise to pay freight and a failure to fulfil the contract, and in this point of view the case is clearly distinguishable from the decision in which it is held that sums stipulated in charter-partics to be paid in advance and not dependent on the carrier's contract do not have the incidents. of freight, and are not protected by the lien of the ship-owner, unless by usage or special contract.* 11. Foundation of those decisions is, that money advanced as freight cannot be recovered back, not even in case the ship is lost on the voyage, and the freight is never earned; because, as it is said, payment determines the lien, and anything accepted as an advance, such as a bill of exchange, is the same thing, unless there is an express agreement to the contrary. Undoubtedly an actual payment determines the lien to that extent, but it is not correct to say that a bill of exchange has the same effect, unless it be so agreed between the parties; and the settled doctrine in this country is, that freight paid in advance is not earned unless the voyage is performed, and that the shipper may recover it back, if for any fault not imputable to him the contract is not fulfilled.† 12. Absence of the clause that the merchandise is bound to the ship cannot affect the question, as that is the presumption of the law-merchant, from the relation between the ship and the cargo, independently of any express stipulation, unless the presumption to that effect is negatived by the language of the contract. Whenever the owners of the * How v. Kirchner, 11 Moore's Privy Council, 21; Kirchner v. Venus, 12 Id. 384; Maclachlan on Shipping, 383. The Kimball, 3 Wallace, 44; Benner v. Insurance Company, 6 Allen, 222; Chase v. Insurance Company, 9 Id. 313; Watson v. Duykinck, 3 Johnson, 335; Griggs v. Austin, 3 Pickering, 20; 8 Kent Com. (11th ed.), Pitman v. Hooper, 3 Sumner, 66. t1 Parsons's M. L. 124, 253. 304; Statement of the case. ship constitute one party, and the owners of the cargo the other, the law of freight applies, and the fundamental rule, says Mr. Parsons, is that the rights of the respective parties are reciprocal, and that each has a lien against the other to enforce those rights, and the better opinion is, that the lien for freight commences as soon as the goods are delivered into the control of the master, or certainly as soon as they are put on board.* Usually the charter-party contains a clause binding the ship to the merchandise and the merchandise to the ship, but the law-merchant, as already explained, imposes that mutual obligation even if it be omitted.† Decree of the Circuit Court must be reversed with costs, and the cause remanded for further proceedings in conformity to this opinion. Libellants, upon the payment of the amount of the protested acceptance and interest and costs of suit, will be entitled to a decree that the stipulation given for the return of the goods shall be given up to be cancelled. Otherwise the libel must be dismissed. DECREE REVERSED WITH COSTS. UNITED STATES V. THE COMMISSIONER. A mandamus will not be granted to compel the performance of an office, such as the issuing of a patent for land, in a case where numerous questions of law and fact arise, some of them depending upon circumstances which rest in parol proof yet to be obtained, and where the exercise of judicial functions, some of them of a high character, is required. Nor will it be granted where it is reasonable to presume that there are persons at the time in possession under another title, and who therefore should have an opportunity to defend it. THIS was a writ of error to the Supreme Court of the District of Columbia. * 2 Parsons on Contracts (5th ed.). 286; Abbott on Shipping, 462; Fragano v. Long, 4 Barnewall and Creswell, 219; Cooke v. Wilson, 1 Common Bench, N. S. 153; Maclachlan on Shipping, 353; Tindall v. Taylor, 4 Ellis & Blackburn, 219; Same case, 28 English Law and Equity, 210. Brig Casco, Davies, 184; 2 Parsons on Contracts, 303; 2 Parsons's M. L. 561. |