#### *Brown and Rives v. Ralston and Pleasants.

November, 1838,

Richmond.

(Absent Cabell and Brockenbroitgh, J.)

Charter Party — Construction* — Case at Bar. — By charter party of affreightment, plaintiffs engage their vessel to take a cargo for defendants to a designated port, at a specified freight: and it is agreed that twenty running days shall be allowed for unloading and discharging the vessel after her arrival at the port of destination, and that for every additional day’s detention, defendants shall pay 50 dollars .demurrage: Held, the stipulation for payment of demurrage does not affect the contract for freight, and if the consignee fails to unload and discharge the vessel within the lay days allowed, there being no impossibility of his doing so, and afterwards, while the vessel is detained on demurrage, the vessel and cargo be lostwithout the default of the master or mariners, the plaintiffs are entitled to recover the freight, as well as the demurrage.

Carriers — Notice to Consignee — Sufficiency of* — Case at Bar. — Case in which the consignee of a cargo was held to have received sufficient notice that the master of the vessel was ready to deliver the cargo.

Same — Vessel Detained on Demurrage — Protest by *191Master Unnecessary in Case at Bar. — Case in which a protest by the master of a vessel detained on demurrage was held unnecessary.

Indebitatus Assumpsi† — When It Lies on Special Contract.! — Where the terms of a special contract for work and labour, not under seal, have been performed, the stipulated compensation, if payable in money, may be recovered in an action of general indebitatus assumpsit.

This is the sequel of the case which was before this court in November 1826, reported in 4 Rand. 504.

It was an action of assumpsit, brought by Ralston & Pleasants against Brown & Rives in the late superiour court of law for Henrico county, in July 1817, upon a charter party in the following terms :

“Charter party made and entered into this ninth day of November 1809, between Ralston & Pleasants of one part, and Brown & Rives of the other, all residents of the city of Richmond, witnesseth that the said Ralston & Pleasants do hereby engage the brig Commerce, commanded by Dixon Brown, to take a cargo of tobacco and flour from Richmond, Virginia, to Cadiz direct, at 5 *pounds per hogshead and 11 shillings and 3 pence per barrel, british sterling, freight, with 5 per cent, primage. Some doubts having arisen in the minds of the parties concerned, of the certainty of the vessel’s being permitted to discharge her cargo at the aforesaid port of Cadiz, and if it shall so happen, on her arrival at that place, that she is not allowed (as now contemplated) to discharge there, but on the contrary shall be ordered off, it is understood and agreed that the agents of the shippers may direct her to any permitted port in Portugal or Spain, to the island of Madeira, or any of the Azores, more commonly called the Western Islands, by their paying, in addition to the above freight of 5 pounds and 11 shillings and 3 pence per hogshead and barrel, whatever may be the customary freight from Cadiz to the port they may order her, the same to be agreed upon by the parties’ agents where she discharges; the concerned understanding that twenty running days shall be allowed for unloading or discharging the said vessel after her arrival at the port of destination, and the master notifying the consignee that he is ready to unload ; and for every additional day’s detention the before named shippers shall pay 50 dollars demurrage, quarantine always excepted, provided it is enforced with such rigour as to prevent vessels from discharging and landing their cargoes during its continuance, and not otherwise.

Teste Ralston & Pleasants.

Robert Coventry. Brown & Rives.

Dixon Brown.”

The declaration contained eleven counts. The 1st, after setting forth the agreement, the promise to perform all things in the agreement expressed or fairly implied, and that it was fairly implied that the defendants would provide and have, at the port of destination of the vessel, a consignee ready, on her arrival, to be notified thereof by the master, and to receive the cargo if *it should be permitted to be discharged, averred that the plaintiffs did take on board the vessel a large cargo of tobacco and flour, the property of the defendants, which was consigned by the defendants to James C. Wardrop at Cadiz-; that the vessel with her cargo proceeded with all convenient dispatch to Cadiz, where she arrived on the 19th of January 1810, where and at which time the master was ready to give notice of his arrival to the consignee James C. Wardrop, and to deliver the cargo to him according to consignment, if the said Wardrop had been at Cadiz ; but the said Wardrop was not at Cadiz : whereby, and through the default of the defendants, it became impossible for the master to notify the consignee of his arrival. It was further averred that there was no quarantine or other impediment to the immediate landing of the cargo at Cadiz on the arrival of the vessel, except that the defendants had not provided a consignee to be ready at the port of Cadiz to receive the cargo. And then it was alleged that by reason of the failure of the defendants to provide and have ready such consignee, the vessel with her cargo was detained in the port a long time ; at the expiration whereof the master, acting for the benefit of the concerned, determined to submit the cargo to the disposition of the vice consul of the United States at Cadiz (the consul himself being at that time in the United States) ; under the direction of which vice consul a part of the cargo was landed at Cadiz, on which part the defendants paid to the plaintiffs the freight stipulated by the agreement; but from the circumstance of the vice consul’s being occupied by duties of a public nature, or other causes to the plaintiffs unknown, but proceeding from no default on the part of themselves or their agents, 100 hogsheads of tobacco and 51 barrels of flour, part of the cargo, were suffered to remain on board the said vessel at Cadiz from the 19th day of January 1810 until the 9th day of March following (during *all which time neither Wardrop nor any other consignee or agent of the defendants was at Cadiz to receive the said 100 hogsheads of tobacco and 51 barrels of flour, although during all that time no quarantine or other legal impediment existed to the landing and discharge of the cargo of tobacco and flour, and the master was ready at all times to deliver and discharge the cargo); on which last mentioned day the vessel, with the remaining cargo of tobacco and flour onboard, without any fault or want of care on the part of the plaintiffs, or of the master and mariners belonging to the vessel, was, by a violent gale of wind, driven on shore on the coast of the bay opposite to Cadiz, which coast was in possession of the french army, then invest*192ing Cadiz in a hostile manner, where the said vessel was stranded, and thereupon was seized and burned by the said french army, and the remaining cargo was by the french army, without any default, negligence or want of care on the part of the plaintiffs, or of the master and mariners belonging to the vessel, wholly destroyed. And so the plaintiffs said that the detention of the vessel at Cadiz, and the nondelivery and subsequent loss of the remaining cargo, proceeded wholly and entirely from the default of the defendants in not providing and having ready at Cadiz a consignee to receive the cargo. By means of all which premises the defendants became liable to pay the plaintiffs the freight and primage upon the said 100 hogsheads of tobacco and 51 barrels of flour, and demurrage for 21 days more than the laying days in the agreement mentioned.

The 2d count was indebitatus assumpsit for freight, primage and demurrage ; the 3d, quantum meruit for carriage and demurrage ; the 4th, indebitatus assumpsit for freight and primage; the 5th, indebitatus assumpsit for demurrage ; the 6th, quantum meruit for carriage ; the 7th, quantum meruit for demurrage; the 8th, indebitatus "assumpsit for work and labour; the 9th, 10th and 11th .were counts for money paid, laid out and expended, for money had and received, and upon an insimul computassent.

The general issue being pleaded, a special verdict was found ; upon which the superiour court, being of opinion that the law was for the plaintiffs, and that they were entitled to recover freight, primage and demurrage, rendered judgment in their favour for the amount of damages conditionally assessed by the jury. An appeal having been taken by the defendants, this court set aside the special verdict, as not sufficiently certain, and awarded a venire de novo. The particulars in which the special verdict was considered to be defective, are stated in the opinions delivered by judges Green and Brooke, 4 Rand. 531, 2, 535, 6.

After the cause went back to the superiour court, a second special verdict was found, in the following terms:

“We of the jury find, 1st, that on the 9th day of November 1809, an agreement of charter party was entered into between the plaintiffs and the defendants, which we find at large in these words, to wit(Here the charter party was recited.)

“2dly. That, in pursuance of the said recited agreement, the defendants shipped on board the said brig Commerce a cargo of 100 hogsheads of tobacco and 750 barrels of flour, and addressed the ship and cargo to James C. Wardrop at Cadiz, their agent and consignee.

“3rdly. That the said brig Commerce, so laden, proceeded on her voyage, and arrived safely with her cargo at Cadiz on the 19th of January 1810 ; and the said Dixon Brown, her master, immediately reported such his arrival to Richard S. Hackley, then acting consul of the United States at Cadiz, and also agent of the defendants there in the manner and to the extent herein after mentioned, and notified to the said Hackley that he, the master, was then and there ready to deliver the cargo according to the charter party.

*“ 4thly. That according to the course and usage of trade in such cases at the said port of Cadiz, vessels arriving there with cargoes are anchored in the bay of Cadiz, which is a spacious one, and the cargoes are deliverable alongside the vessels, to lighters sent from the shore by the consignees or agents of the shippers, and it is not the duty of masters to land their cargoes there in the ordinary course of trade ; and there is no custom or usage of merchants other than the law merchant, either general, or particular respecting the particular trade to which the said recited charter party relates, or local respecting the trade between Richmond and Cadiz, existing at Richmond or at Cadiz, which affects the interpretation or effect of the said recited charter party, other than the usage and course of trade at the port of Cadiz, in this finding above set forth.

“ 5thly. That before the arrival of the said brig Commerce with her cargo as aforesaid, the said James C. Wardrop, the agent of the defendants, and the consignee thereof, had left and was at that time absent from Cadiz, at Valencia in Spain, and so remainéd until the month of July 1810; and Richard S. Hackley, then acting consul of the United States at Cadiz, and residing there, was the agent of the said Wardrop, the consignee as aforesaid, in regard to the flour part of the cargo. The said Hackley was not authorized by the said Wardrop to direct how the tobacco should be disposed of, without particular instructions relative to the said tobacco from the said Wardrop, to whom the said Hackley transmitted the letters of the defendants to the said Wardrop touching the said vessel and cargo, which were brought by her, and delivered to the said Hackley unopened ; and the said Dixon Brown, the master of the said vessel, then and there had knowledge of such agency of the said Hackley in this particular.

“ 6thly. That shortly after, to wit, about 10 days from the arrival of the said vessel and cargo at Cadiz, *the said Hackley did receive instructions from the said Wardrop relative to the tobacco part of the said cargo, and undertook to act as the agent of the defendants concerning the same ; and the said Hackley gave notice to the said Dixon Brown, the master of the said vessel, that he the said Hackley had received such instructions relative to the said tobacco from the said Wardrop, but he gave the said master no directions whatever at any time touching that part of the cargo, nor did the said master apply for any such directions.

“ 7thly. That between the 19th day of January 1810 and the first of March following, inclusive, the said Hackley received from on board the said vessel 741 barrels of flour, part of the said cargo, and paid the freight thereon.

“ 8thly. That at the time of the arrival of the said vessel at Cadiz, France and Spain being at war, a french army had invaded Spain, and about the same time, or shortly *193after, was marching towards Cadiz, a strong place of war, open to the sea, and having its port and anchorage for shipping safe from any sudden attack by land, and the british, then the allies of Spain, having command of the sea on the Spanish coast.

“ 9thly. That on the approach of the french army, great numbers of Spanish troops came to Cadiz, and other Spanish subjects took refuge there, and all the lighters and boats usually employed in transporting goods from and between ships in the harbour, and the town, were subject to impressment, and most of them were actually impressed by the government.

“lOthly. That owing to this cause, many vessels remained unloaded in the harbour of Cadiz aforesaid from the 28th day of January 1810 (when the french army was marching to and threatened Cadiz) until the 7th day of March following ; it being with the greatest difficulty that boats and lighters could be procured, and when procured they were constantly liable to be impressed. But though there was such difficulty, yet there was not, during the whole time, from the time of the arrival of the said vessel at the port of Cadiz, until the time when she was lost and destroyed in manner hereinafter mentioned, any impossibility for the said Hackley to have procured boats and lighters to raise the whole cargo from the said vessel, and to discharge her.

“ llthly. That the said 100 hogsheads of tobacco and 9 barrels of flour remained on board the said brig Commerce until the said 7th of March 1810, when, by a violent gale of wind, and without any fault of the master or marriners, the said vessel, with the said part of her cargo on board, was driven from her moorings in the harbour of Cadiz, upon the neighbouring coast of Spain, at a place in the possession of the french troops, by whom the vessel and cargo were burnt and destroyed.

“ 12thly. That at the time of the arrival of the said vessel at Cadiz, there was no market at that place for tobacco, and it was not intended by the said Wardrop, or by the said Hackley, after the latter undertook to act as agent in relation thereto, that the said tobacco should remain at Cadiz (unless it could be sold at a certain price, which could not be obtained) but it was by them intended that the same should be reshipped and sent to England : and that the said tobacco was purposely left by the said Hackley on board the said vessel, until he could make up his own mind what to do with it.

“ 13thly. That the said master of the said vessel was at all times, from the time of the arrival of the said vessel at the port of Cadiz, until the time when she was lost and destroyed in manner aforesaid, ready to deliver the whole, and each and every part of the said cargo, to the said consignee or his said agent, if they or either of them had sent boats or lighters to take the same from the vessel; and of this the said Hackley, '^agent of the said consignee as aforesaid, was, at and during all the time, well apprized.

“ 14thly. That the said master of the said vessel did in no wise give any consent to the delay of the said consignee, or his said agent, to take the said cargo, or any part thereof, from the said vessel, and to discharge the said vessel, except so far as he was bound by the charter party.

“15thly. We find that by the general custom of merchants, the demurrage agreed upon for detaining a vessel beyond her lay days, where there was no stipulation to the contrary, became due and payable daily.

“ On the whole matter, if the court shall be of opinion, on the facts above stated, that the plaintiffs are not entitled to recover in this action, we find for the defendants. If the court shall be of opinion that the plaintiffs are entitled to recover for the demurrage only, then we find for the plaintiffs 1050 dollars, with six per cent, per annum interest thereon from the 7th day of March 1810 till paid, damages. If the court shall be of opinion that they are entitled to recover freight and primage only, then we find for the plaintiffs 2209 dollars 64 cents, with six per cent, per annum interest thereon from the 7th day of March 1810 till paid, damages. And if the court shall be of opinion that the plaintiffs are entitled to recover freight, primage and demurrage, then we find for the plaintiffs 3259 dollars 64 cents, with like interest from the 7th day of March 1810 till paid, damages.”

The superiour court held that the law upon the special verdict was for the plaintiffs, and that they were entitled to recover freight, primage and demurrage ; and accordingly rendered judgment in their favour for 3259 dollars 64 cents, with interest from the 7th of March 1810 till paid, and their costs of suit. From which judgment Brown & Rives, the defendants, again appealed to this court.

*C. Johnson and G. N. Johnson for appellants.

Heigh, J. Robertson and C. Robinson for appellees.

*

Carriers. — See monographic *note*on “Common Carriers” appended to Farish v. Reigle, 11 Gratt. 697.

†

lndebltatus Assumpsit — When It Lies on Special Contract. — It is a well known rule of law that, where the terms of a special contract have all been performed and nothing- remains to he done under the contract except for the defendant to pay a specified amount of money, this money may he recovered under the general *indebitatus assumpsit*count. Davisson v. Ford, 23 W. Va. 632, citing the principal case. See further, monographic *note*on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.

PARKER, J.

The opinion which is about to be delivered by the president goes so fully into the main question argued before us, that I propose only to offer a few observations respecting it.

This case was before the court in the year 1826, upon a special verdict ascertaining the loss of the vessel and cargo during the demurrage days, and is reported in 4 Rand. 504. Judge Carr was then for affirming the judgment which had been rendered in favour of the plaintiffs in the court below ; and I am much inclined to think that if I had been on this bench at that time, I must have concurred in his opinion. Judges Brooke and Green, however, held the special verdict to be imperfect in not finding, with sufficient precision, whether the delay in discharging the cargo was with the assent of the master, or otherwise, and whether it was or was not impossible to unload the vessel before she was driven from her moorings upon the coast of Spain, and there burnt by the french. For these omissions, they set aside the verdict for uncertainty, and awarded a venire de novo. But the whole court agreed, that after the lay days had expired, freight was recoverable, unless during that period there was no possibility of unloading the cargo, or unless *194the master assented to the delay. The special verdict now before us expressly finds that the master did in no wise give any consent to the delay of the consignee or his agent to take the cargo from the vessel; that though there was a difficulty in procuring boats and lighters to unload her, yet there was not, during the whole time from the arrival of the vessel at the port of Cadiz, until she was lost and destroyed, any impossibility of procuring them; and that the tobacco (the freight of which is in controversy) was purposely left by Hackley, *the agent, on board the vessel, until he could make up his mind what to do with it.

We have, therefore, the authority of all the three judges who sat in the case when it was first before the court, for saying that upon the state of facts now appearing, the appellees are entitled to recover for freight, as well as primage and demurrage. Conceding that their opinions do not bind üs in the same conclusive manner that a former judgment of the court between the same parties binds, yet as the point now involved arose necessarily in the consideration of that case, the decision then ■ made is an authority entitled to all the weight which is ever allowed to a single precedent in this court, and to much greater than the dictum of any judge, or even the judgment of any other court. Its authoritative force is strengthened by the fact that the opinions delivered in 1826 were given on great consideration, and after a minute examination of all the cases bearing upon the subject, and that now, after the most elaborate research, nothing has been found in principle, in justice, or in authority, to impeach them.

I might, under these circumstances, securely rest upon this case as an authority which, without very good reasons, I ought not to disregard. But if it is to be regarded as res integra, I am of opinion, upon principle, that the plaintiffs were entitled to recover their freight. Freight I consider to be a compensation for the carriage of the goods, for their delivery in the manner the shipowner is bound to deliver them, and for the lay days allowed to the consignee to take them from the vessel, where by the usage of trade he is bound so to take them. The manner of delivery, and the period at which the master ceases to be responsible, depend, in the absence of agreement, on the custom of the place where the voyage terminates. Wardell v. Mourillyan, 2 Esp. N. P. Cas. 603. Abbott on shipping, 222, 248. By the • custom at Cadiz, masters are *not bound to land the cargo, but it is the duty of the consignee to send lighters for it from the shore. By the charter party in this case, he was allowed twenty running days to unload the cargo, and the case of Lacombe &c. v. Wain &c , 4 Binney 299, gives him the whole time for sending for and receiving it. During that period he is in no default, and the freight is suspended, because the shipowner has contracted to hire the ship during the voyage and for the specified lay days, and to receive as a consideration the freight agreed on. But this very reasoning proves that if the cargo is not delivered within the lay days, through the fault of the consignee, the freight is earned and must be paid; and it is plain that a majority of the court, in the case alluded to, thought that the reasonable construction of the agreement was, that the consignee might take his own time, provided he did not exceed the stipulated lay days. For the risk incurred by the shipowner during that period the freight was the premium, but for any other risk he would have been entitled to damages, ascertained in this case by express agreement. When the risk was run for which the freight was a compensation, on what principle can it be that the freight shall not be paid ? The additional sum of 50'dollars a day for demur-rage was intended to cover a new risk, commencing after the first had ended. It is inserted in the charter party, it is true, but it makes no part of the contract of affreightment. By that contract, connected with the usage, the goods were to be carried to Cadiz, and the captain was to remain there with his vessel twenty days, ready to deliver them. When he has done this, he has done all that he was bound to do under the contract of affreightment. The allowance of 20 days for unloading is equivalent to an agreement on the part of the freighter to unload within the 20 days ; and if, through his default, the goods are not delivered, the responsibility of the shipowner ceases, and the *voyage contracted for is completed. The premium given for detaining the vessel longer, for any purpose, whether to unload, or to load, or to try the market, or give time to the consignee to make up his mind what to do with the cargo, has, in my 'opinion, no connexion with the freight, but is given for a wholly different consideration. If it were otherwise, the default of one contracting party might prejudice the rights of the other, and postpone his claim to freight, as well as that of the seamen to their wages, if not for an indefinite time at the caprice of the freighter, yet for a period the limits of which are no where defined, and are not easily ascertainable.

For these among other reasons, I feel no difficulty in deciding that the happening of the loss whilst the ship was detained on demurrage, does not, under the other facts proved in this case, bar the claim of the appellees for freight; and the other objections taken to the judgment of the court below, appear to me to be equally unfounded.

By the charter party, 20 running days are allowed for unloading and discharging the vessel, after her arrival in port, and the master notifying the consignee that he.. is ready to unload. This implies that there shall be an agent at the port of delivery, to whom such notice may be given. There-is no analogy, that I can perceive, between the obligation of a shipowner to give such notice, and that of the holder of a bill^ of exchange. The notification to the consignee was for the purpose of fixing the commencement of the running days, as is apparent from the words of the charter party ; and it is impossible to conceive that the parties meant, that if the consignee was at London or Canton, the running days should not commence until he *195received notice. The reasonable construction is that he should be notified, not of the arrival of the vessel (which perhaps he was bound to take notice of) but of the readiness to ^deliver, if he was at the port ready to receive. But if this is questionable, we are well warranted in saying, from tlie facts found, that Wardrop was notified of the arrival and the readiness to deliver, and that his instructions to Hackley were predicated on that information. Besides, Hackley, both before and after he received instructions relative to the tobacco, which made him agent as to that part of the cargo as well as the flour part, was well apprized, as the jury find, of the captain’s readiness to deliver the whole, when lighters should be sent to receive it; and I think that this knowledge, and the notice he had previously received, dispensed with the vain form of giving further notice. The case of Chapman v. Keane, 3 Adolph. & Ellis 193, 30 Eng. C. L. Rep. 69, in relation to the notice requisite to charge the drawer of a bill of exchange (where, as I think, much greater particularity is necessary, for reasons peculiar to that contract, than in this) might easily be enlisted in support of this view of the case, if it were not sufficiently plain of itself.

Then, as to the pleadings. If there was no consignee of the tobacco at Cadiz, and the tobacco was suffered to remain on board the vessel until it was lost, without the default of the master, the special count in the declaration is sustained. But if that count be not sustained, and the facts found entitle the plaintiffs to recover, the general counts are sufficient. The contract was not under seal, the remuneration was to be in money, and the terms of the agreement had been performed. The rule, I think, is very accurately stated by judge Cabell in the case of Brooks v. Scott’s ex’or, 2 Munf. 345, where he says that “ in respect to debts for work and labour -or other personal services, the rule is, that however special the agreement was, yet if it was not under seal, and the terms of it have been performed on the plaintiff’s part, and the remuneration was to be in money, the party may declare either specially *on the original agreement, or in indebitatus assumpsit on the express promise to remunerate (if there was one) or on the promise which the law implies on the execution of the agreement.” To the same effect the doctrine is summed up in 1 Chitty’s Plead. 4th american edi. 339, in these words : “Where'goods have been sold and actually delivered to defendant, though under a special agreement, it is in general sufficient to ■declare on the indebitatus count, provided the contract was to pay in money, and the credit expired.” And see justice Dennison’s opinion in Alcorn v. Westbrook, 1 Wils. 117. Yet in these cases you may declare on the special agreement, and by proper pleadings recover on it. The cases of Cooke v. Munstone, 1 Bos. *&*Pul. N. R. 351, and Ellis v. Hamlin, 3 Taunt. 52, do not appear to me to militate against this doctrine.

On the whole, without noticing any other •objection, I am for affirming the judgment.

TUCKER, P.

The only question in this case, of any importance, is whether freight was earned by the vessel, which was lost during the demurrage without default on the part of the owner. The verdict finds that the master was at all times ready to deliver the cargo, and gave no other assent to the delay than he was bound to do by the charter party. It also finds that there was no impossibility for the consignee to procure the necessary boats and lighters for unloading ; thus amply supplying the supposed deficiency of the former verdict. It is obvious that the judges who pronounced the judgment in this case as reported in 4 Rand. 504, would have had no difficulty in giving their opinions in favour of the plaintiffs on the present verdict. Yet as the judgment there is not binding, it becomes necessary that we should offer our own views of the subject.

My own opinion is, that in this case the freight was earned as soon as the lay days were passed, the master ^having been “ at all times ready to deliver the cargo, if the consignee or his agent had sent lighters to take it off,” as they were bound to do. This could not be denied, if there was no contract for demurrage. But that contract could not fairly be construed to continue the risque of the freight. The detention was for the accommodation of the shipper, — to suit his convenience, or enable him to deliberate upon the best course to take with his adventure. It was a distinct and independent part of the contract, in no wise connected with the agreement for freight. It was a contract for a different service, to be paid for by a different price and at a different rate. The freight was the consideration of the hire of the vessel for the voyage and the lay days. The detention was to be paid for at 50 dollars per day extra. But there was no detention, until the owner had fulfilled his engagement for the freight. Until then, the delay was his own delay. The demurrage did not begin until the contract for freight was made complete. The vessel could not have demanded 50 dollars per day for demurrage, while she was yet earning her freight. Until the freight was fully earned, she was under hire to the shipper for the freight. She was not at the disposition of the owner, who could not hire her as a store ship at 50 dollars per day, while the shipper’s right to her under the contract for freight was yet undetermined. Now it is admitted she had title to demurrage, and this is an admission that the freight was no longer “ being earned,” but that it was already earned. If so, the subsequent loss of the vessel and cargo without the owner’s fault could not impair his right to freight.

As to the notice ; the objection for want of it cannot prevail. If there was no consignee in Cadiz to receive notice, the defendants cannot complain. If Hackley was the agent, he had due notice. Indeed it seems to me clear that Wardrop must have received it as early as the 261 h of January, since his answer was received *about the 29th. Brom the 26th of January till the 7th of March there are 41 days, making *19620 for the lay days, and 21 for demurrage, as allowed by the jury. So that no difficulty exists as to this part of the case.

As to the protest; if ever necessary, it can only be where the owner has cause of complaint, or is about to take some step which may prejudice the shipper. Neither was the case here. There was nothing to protest about, for the master was quietly waiting the consignee’s pleasure, and the vessel was lost while he was doing so.

The question as to the pleadings is settled by the case of Brooks v. Scott’s ex’or, 2 Munf. 345, which is sustained by abundant authority. See 1 Chitty’s Plead. 4th american edi. 339, 1 Selw. N. P. 58, and the cases there cited.

I am of opinion to affirm the judgment.

BROOKE, J., concurring, judgment affirmed.