our judgment must proceed upon the apparent intention of the parties, and the absence of the covenant to repay, which is usually found, and the presence of the stipulation I have last adverted to.

WILLES, J.-I am entirely of the same opinion. It seems to me that the true construction of the deed puts an end to all dispute, even assuming that that which was done by the plaintiffs amounts in point of law to payment of the premiums. As to that, I desire to be understood as declining to express my opinion; and I believe that my learned Brothers *618] do not intend that the judgment of the court should be taken as a *decision that there has been a payment, but that, assuming there had been a payment, the plaintiffs were not entitled upon this covenant to recover back the amount.

WILLIAMS, J., and CROWDER, J., intimated that they had not thought it necessary to consider whether or not that which was done by the plaintiffs amounted to payment. Judgment for the defendant.

SHERIDAN v. THE NEW QUAY COMPANY. July 5.

A., who resided at Manchester, contracted to buy of B., at Dumfries, a quantity of oak-bark, to be shipped "for delivery at Liverpool." B. accordingly shipped the bark, to be delivered at Liverpool to the defendants, who were wharfingers and carriers there, to be by them forwarded to A. at Manchester. The bark was to be paid for in cash; and B. sent a bill of lading, making it deliverable to "A. or his assigns," together with a bill of exchange payable on demand, through his bankers, to the Manchester and Salford Bank, with instructions to present the bill for acceptance. The bank at Manchester were unable to find A., and accordingly they returned the bill of lading and draft to B. Before the bill of lading had been so returned, B., who was at Liverpool when the bark arrived there, believing from the representations of an agent of the plaintiff (who had bought the bark of A.), that the bill of lading had been duly handed over to A., assented to the bark being delivered to the defendants for the purpose of its being carried to Manchester for the plaintiff; but, upon subsequently discovering that A. had not got the bill of lading or paid for the bark, B. claimed and received it from the defendants:

Held, that, under the circumstances, the property in the bark never passed to A., and consequently that B. had a right to countermand the delivery; and that it was competent to the defendants, notwithstanding they had received the bark to be carried for the plaintiff, to set up the title of B., in an action brought against them by the plaintiff.

THE first count of the declaration stated, that the defendants were common carriers of goods for hire from Liverpool to Manchester, and that the plaintiff, by certain persons as his agents, caused certain goods to be delivered to the defendants as such carriers, to be carried from Liverpool to Manchester, and there delivered by the defendants accord*619] ing to the order of the agents of the plaintiff; that the defendants received the goods, and that the agents of the plaintiff ordered the defendants to carry the goods to Manchester, and there deliver them to the plaintiff; and that, although a reasonable time had elapsed for the delivery of the goods, the defendants had not delivered them, and unjustly withheld them from the plaintiff.

The second count was in trover, for the conversion of oak-bark.

The defendants pleaded, to the first count,-first, a denial that the plaintiff delivered the goods to the defendants, or that the defendants received the goods, in manner and form as alleged,-secondly, a denial that the agents of the plaintiff ordered the defendants to carry and convey and deliver the goods as alleged,-thirdly, a denial that the

plaintiff was ready and willing to accept the goods, or to pay the reward payable on the delivery of the goods,-fourthly, a denial of the breach, -fifthly, a special plea, that the goods, at the time of the delivery and receipt of them, were the proper goods of Messrs. George and James Donaldson, of Corsock, near Dumfries, in Scotland, timber-merchants: and that they were induced to part with the possession of them, and caused the same to be delivered to the defendants as alleged, for the plaintiff, under a colourable and fictitious sale and purchase thereof on the part of the plaintiff from the said Messrs. Donaldson, and by and through the fraud, covin, and misrepresentation of the plaintiff and others in collusion with him; and that, before any breach of the alleged contract in the first count mentioned, Messrs. Donaldson stopped the goods in the hands of the defendants, and gave notice to the defendants not to deliver them to the plaintiff, but to return them to Messrs. Donaldson, and that the defendants returned the goods to Messrs. Donaldson accordingly.

*The defendants pleaded to the second count,-first, not guilty, secondly, that the goods were not the plaintiff's goods. The plaintiff joined issue on these several pleas.

[*620

The cause came on to be tried at Liverpool, before Crompton, J., when a verdict was found for the plaintiff, subject to the following

case:

The plaintiff is a commission agent at Manchester. The defendants are common carriers of goods for hire between Liverpool and Manchester and the plaintiff seeks to recover from the defendants the value of a quantity of oak-bark, under the following circumstances:—

În May, 1856, a person named Isaac Cooper, who was then residing in Manchester, inserted an advertisement in the papers, for oak-bark; and, in consequence of that advertisement, the following correspondence took place between Messrs. Donaldson and Isaac Cooper.

"Mr. Isaac Cooper.

"Corsock, by Dumfries, 30th May, 1856.

Sir, In reference to your advertisement for oak-bark, we beg to inform you that we can supply you with, say from 30 to 40 tons (of 20 cwt.) put free on board at Tongland, near Kirkcudbright, for 51. 58. per "For G. & J. DONALDSON,

ton.

"JAMES M'PHERSON."

"Messrs. G. & J. Donaldson. "Manchester, 2d June, 1856. "Gentlemen,-Your letter of the 30th ult. came duly to hand. If the oak-bark is strictly in accordance with the advertisement, I will take the quantity mentioned in your letter: but allow me to suggest I think your price is to the full extent. You may, therefore, put on board the quantity, to be shipped for delivery at Liverpool, and I will give instructions to my agent there to receive the same. Waiting to hear from you as to the time you make the shipment, and I shall make arrangements respecting payment thereof. "Your obedient servant,

"Mr. Isaac Cooper.

[*621

"ISAAC COOPER."

"Corsock, by Dumfries.

"Sir, We have received your letter of the 2d instant. With regard to the quality of the bark, we may state that the wood is good and

healthy, and from sixty to seventy years' growth. It is to be understood that the bark is to be taken delivery of when shipped; and the time of shipping to be twixt 20th July and not later than the middle of August. "For G. & J. DONALDSON,

"JAMES M'PHERSON." "P. S. Will be shipped either at Tongland or Pancakie, the freight being the same from both."

"Mr. Isaac Cooper.

Corsock, by Dumfries, 12th June, 1856.

"Sir, I expected to have had a reply to my letter of the 5th instant regarding the bark 'ere this time, and will feel obliged by your doing so in course of post, as other parties are applying. I may state that my usual terms of payment are cash on delivery: but, not having the pleasure of your acquaintance, I have no objection to make payment against bill of lading, by your sending me a reference.

"Mr. Donaldson.

66

"For JAMES DONALDSON,

JAMES M'PHERSON."

"Manchester, 14th June, 1856.

Sir, I duly received yours of the 12th instant. In reply beg to state that absence from home prevented me answering yours of the 5th earlier but, however, *with respect to reference, beg to refer *622] you to Mr. James Wrigley, merchant, Hulme, near Manchester, who will no doubt satisfy you as to my respectability. But I consider the best reference to be cash, which I shall remit you prompt on receipt of the bark. ISAAC COOPER."

"Corsock, by Dumfries, 16th June, 1856.

"Mr. Isaac Cooper. "Sir, I have received your letter of the 14th instant, but you do not state whether you are to engage a vessel yourself for shipping the bark, or whether you wish me to do so. You will notice, from ours of

the 30th ult. and 12th inst., that our offer is 57. 58. per ton of 20 cwt. put free on board either at Tongland or Pancakie. But, if you wish me to engage a vessel for you, I will do so as reasonable as I possibly can. Please to write as to this by return of post, as part might be shipped this month, if you wish. "Pro JAMES DONALDSON, "JAMES M'PHERSON."

"Mr. James Donaldson.

"Manchester, 19th June, 1856.

Sir,-Yours of the 16th inst. is duly to hand. In reply, I beg to say that you had better engage a vessel for me at as reasonable a rate as you possibly can: and, with respect to the shipping a part this month, I should prefer your doing so if convenient: and, as regards our former correspondence, which you mentioned in yours, I perfectly understand it, and that our agreement is 57. 58. per ton, shipped at either of the places you name,--at that which is most convenient for you. "ISAAC COOPER."

"Mr. Isaac Cooper.

"Corsock, by Dumfries, 5th July, 1856.

"Sir, I have engaged a vessel, the Mart, of Perth, *to load

*623] with oak-bark for you at 201. freight. She carries 72 tons dead

S.

weight. I expect to have her loaded about the middle of the week. You will, therefore, please write me on receipt the name of the party the captain is to call upon, on arriving in Liverpool.

"Mr. James Donaldson.

"Pro JAMES DONALDSON,

"JAMES M'PHERSON." "Manchester, July 8, 1856.

"Sir,-In reply to yours of the 5th inst., beg to inform you that the captain is to deliver the oak-bark to the New Quay Company, carriers to Manchester, who will pay the captain his freight and please to say when the vessel will be likely to arrive in Liverpool, as every attention shall be paid mean time. "ISAAC COOPER." "Corsock, 9th July, 1856.

"Mr. Isaac Cooper.

"Sir, I have received yours of yesterday's date. Should the wind be northerly, the vessel will arrive at Liverpool with bark the beginning of next week. "Pro JAMES DONALDSON,

"JAMES M'PHERSON."

Messrs. Donaldson engaged the Mart for Cooper, as stated in their letter of the 5th of July, to take a little less than twenty-four tons of the bark to Liverpool; and, the bark having been loaded on board the Mart, on the 12th of July procured the master to sign the following bill of lading,

66

Shipped by the grace of God, in good order and well conditioned, by G. & J. Donaldson, in and upon the good ship or vessel called the Mart, of Perth, whereof is master for this present voyage John Amess, and now lying in the harbour of Pancakie, bound for Liverpool, *to [*624 say, cargo of oak-bark, being marked and numbered as in the margin, and are to be delivered in the like good order and well conditioned at the aforesaid port of Liverpool (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever excepted), unto Isaac Cooper or to assigns, he or they paying freight for the said goods. Pay the master in full of freight 207. sterling, with primage and average accustomed. In witness whereof, the master or purser of the said ship or vessel hath affirmed to one bill of lading, &c. Dated, &c. "JOHN AMESS (quantity unknown).”

Messrs. Donaldson afterwards drew a bill on Cooper for 125l. 128., "value in oak-bark," payable on demand.

Messrs. Donaldson delivered the bill of lading and the draft to the Union Bank of Scotland, at Castle Douglas, to be transmitted to Manchester; and the Union Bank of Scotland, accordingly, on the 14th of July, 1856, transmitted the bill of lading and the draft to the Manchester and Salford Bank. Messrs. Donaldson also sent to Isaac Cooper the following invoice:

"Corsock, by Dumfries,
"14th July, 1856.

"Mr. Isaac Cooper, Knot Mills, Great Bridgewater Street, Manchester, "To G. & J. Donaldson. Shipped by the ship Mart, of Perth, 23 tons, 18 cwt., 2 qrs., 7 lbs., at 1058. per ton, £125 128. 11d."

Mr. Cooper sent the following letter to Mr. James Donaldson:"Knot Mill, Great Bridgewater Street, "Manchester, 16th July, 1856.

"Mr. James Donaldson.

*625] "Sir,-Yours is duly to hand this morning. Also *your letter of the 9th was received in due course. I am expecting to hear by an early post of the arrival of the vessel in Liverpool, although the wind has not been favourable since Sunday night, which accounts for the delay. "ISAAC COOPER."

On the receipt of the draft, the Manchester and Salford Bank made every inquiry for Cooper, both in Great Bridgewater Street and in Knot Mill and the neighbourhood, in order to present the draft to him for payment; but the bank was unable to obtain any information whatever about Cooper; and thereupon the bank returned the draft along with the bill of lading to the Union Bank of Scotland, by whom it was delivered to Messrs. Donaldson.

On the 14th of July, 1856, Isaac Cooper sent to the defendants (the New Quay Company), at Liverpool, the following letter:-

"Knot Mill, Great Bridgewater Street, "Manchester, 14 July, 1856.

"Gentlemen,-I have a cargo of bark from Dumfries shipped by the Mart, of Perth, vessel, which I expect in daily, and have ordered to come into your hands. The captain's charge for freight is 201., which I will remit you, or send, as soon as she comes to Liverpool, with further instructions. Be good enough to inform me of the arrival.

"ISAAC COOPER."

About the same 14th of July, one G. D. Thomas, as agent for Isaac Cooper, applied to the plaintiff, in Manchester, to advance the freight of some bark which was coming from Scotland to Liverpool. Thomas saw the plaintiff two or three times on the subject; and, ultimately, on Tuesday, the 15th of July, the plaintiff agreed with Thomas to advance 201. through the plaintiff's agents, Buchanan & Co., of Liver*626] pool, to pay the freight of the bark, on having the bark transferred to his order. On the same day, Isaac Cooper was introduced to the plaintiff (who had no previous acquaintance with him) at Manchester; and the plaintiff informed him that he had agreed to advance (through his agents, Buchanan & Co., of Liverpool) 201. for the freight of the bark, on having the bark transferred to his order. Isaac Cooper then offered to sell the bark to the plaintiff. The plaintiff inquired the value of the bark, and Cooper informed him that he had purchased it at 51. 58. per ton; and he produced and delivered to the plaintiff Messrs. Donaldson's invoice of the bark, dated the 14th July, and left it with him. The plaintiff then offered to give Cooper 108. per ton advance on the invoice price. Cooper said he would let the plaintiff know; but no agreement for the sale of the bark from Cooper to the plaintiff was concluded on that day.

On the 17th of July, the Mart arrived in Liverpool, with the bark on board; and the master reported his arrival to Mr. Matton, the agent of the defendants, in Liverpool. Mr. Matton the same day wrote a letter to Isaac Cooper in Manchester, informing him of the arrival of the