The Sun.
London, England, 1844-11-20 00:00:00

COMMON PLEAS.-(THIS DAY.

THOMSON V. SMALL.
This was an action in trover in which the plaintiffs,
Messrs. Thorn= and Co., are wholesale tin and
sheet-lead dealers, and the defendant is master of the
ship Bucephalus.
On the 20th July, 1843, the plaintiffs sold to a
person of the name of Galbraith goods to the amount
of 3991. 48 .; these goods were to be shipped on board
the Bucephalus, bound for Sidney, and to be paid
1 for before the ship started from London. On the
goods being shipped, the plaintiffs received a receipt
from defendant. After that, having heard that Mr.
Galbraith was insolvent, the plaintiffs demand the
return of the goods. Subsequently they received
from Galbraith a'paper authorising them to remove
the goods from the ship, and defendant was served
with a notice signed by Galbraith, requiring him to
give the goods up to plaintiff, which, however, he re-
fused to do until the whole amount of the freight to
Sidney should be paid. Accordingly he took the
goods to Sidney.
Thp doe.mdant pleaded tha iko for freight. To this
it is demurred that the master or owners had no claim
for freight, inasmuch as Galbraith had chartered the
vessel for 1,6001., and possession of her had, by the
charter party, passed for the time to him.
Mr. Sergeant CHANNELL, in support of the de-
murrer, contended that the instruction of the char-
terers to the master ought to have been imperative
on him to return the goods, whose property in them
had not determined whilst they held in their posses-
sion the master's receipt for them as theirs, and in
their name.
Mr. Sergeant SMEA, against the demurrer, argued
that when the captain was also owner (as in this
case), the possession did not pass to the char-
terers, under any circumstances, and it had
moreover been ruled, that, for the purpose
of lien, the possession did not pass from the owner
so long as their captain and crew remained on board.
In such cases the charterers had only the temporary
use of the ship, for the purpose of freight. Where
the charterers stipulated to have the appointment of
the master, it had been decided that they had com-
plete possession, and the owners had no lien. But, in
the present instance, the owner remained in posses-
sion, continuing to command his ship, and it was part
of the contract that he should find sailors, with food
and wages. The Learned Sergeant submitted that
this charter party was merely a contract for the freight
°floods, and did not give such a possession as would
constitute the charterers owners pro hac vice. It had
been held, indeed, that where a bill had been taken
for freight the lien would not attach until after the
bill should have been due and dishonoured, In this
case the contract was for payment in two months after
the landing of the goods in Sidney ; and it was, upon
that ground, e,ssuirfe4 for the plaintiffs that lien did
not attach, and that Galbraith had contrei and 4iitilqii:y
over the ship and cargo at the time when he ordered the
crditain to return the goods in question. But he
(Mr. Sergeant Shea) cootondpd that as far as the con-
tract to pay at a certain time was similar to a bill or
note, the contract was virtually like a dishonoured
bill when the defendant set up his lien ; for the
charterer had been arrested on a charge of felony,
And had declared himself insolvent. The Learned 1