
    Burgess vs. Gun.
    Appeal from Baltimore County Court. This was an action of replevin for 110 hhds. ot tobacco, marked C. The defendant, (now appellant,) pleaded properly. The facts were admitted at the trial to be these — Alexander 
      MactiSr, on the 17th of May 1800, at the city of Baltimore, entered into an ¡igreement with Howes Goldsborough, that a charter party should be drawn between them for the Snow Maryland, Capt. Thos. Burgeás, from Baltimore to Amsterdam, for and in consideration of 6,500 Spanish milled dollars, payable on her delivering the car» go at the said port. In pursuance of this agreement, Goldsborough 'afterwards put on board the Snow,-at the city of Baltimore, the tobacco mentioned in the declaration, and after lading the tobacco, to wit, on the 30th of May 1800, sold the same to the plaintiff, and gave an order on the defendaftt, who was the master of the Snow, to deliver the tobacco to the plaihtiff. Tins order the defendant refused to comply with, and the plaintiff sued forth the present writ of replevin. In pursuance of said agreement a charter party was drawn up and approved by both parties, who agreed to sign it. Goldsborough afterwards, and after the lading the tobacco on board the Snow, in pursuance of said agreement sent for the charter party so drawn up, and had it in his custody with a view to sign it, but instead of signing it, he afterwards wholly refused to sign it, in consequence of his having failed, and transferred as before stated, the tobacco to the plaintiff, and destroyed the charter party; and that the charter party was never executed. - Before and after the sale of the tobacco to the plaintiff, Alexander Maetier, and the defendant, and the Snow, were at all times ready to take on board any cargo which Goldsborough might clntse to put on board; but that after having put on board the tobacco, and certain other goods, he wholly refused and neglected to put on board any further cargo. The Snow was in all respects prepared to sail her said voyage, as related to the part to-be performed by Maetier, except the shipping of her hands, and her clearance, both which Maetier w'as ready and willing to have done as soon as Goldsborough should complete the lading of the cargo; and that it was always the practice in the port of Baltimore to ship hands, and clear out the vessel, after the cargo is put on board. The goods, which had been put on board, were not a full lading for the Snow, and were not the whole of the cargo intended to be put on board by Goldsborough, and that he did not 'order, nor wish the Snow to sail on the said voyage with the cargo then on board; and that he assigned the tobacco iu the plaintiff, in payment of a debt contracted for the purchase of the same tobacco from the plaintiff, and abandoned altogether any further connexion or concern in said intended voyage, or the property laden on board the Snow, and refused to complete the lading of the Snow, which was to have been performed by him previous, to her sailing; and that the Snow \yas prevented from sailing o,n said voyage, for the purpose of delivering the cargo at Amsterdam, solely by the acts of Goldsborough and the plaintiff; and that the defendant, as master of the Snow, and the agent of Míictler,■ did refuse to deliver the tobacco in pursuance of the herein before recited order of Goldsborough; but insisted, that the cargo should b,e completed, and the vessel should nrqeeed to perforin the voyage according to said agreement, and that the freight should be paid; both, of which Goldsborough and the plaintiff absolutely refused on their part. The Snow never sailed on the said voyage. After the tobacco was taken under the present writ, out of tiie Snow, and Goldsborough and the plaintiff had so refused to permit her to proceed on her voyage, Mactier did, on the 19th of June 1800, sell the. Snow to Robert Cilmor & Sons. Mactier, before the agreement herein before stated betweep him and Goldsborough, expended' a considerable sum of money in preparing the Snow for a voyage, on the high seas. Upon these facts, the plaintiff prayed the opinion of the court, and their direction to the jury, that he was entitled to recover. This direction the court, {jNicholson Ch. J.j gave, being of opinion that the defendant had no lien on the goods for freight, no freight being in fact due before the commencement of the voyage; and that if injury had been sustained by the owner of the Snow, in consequence oí a violation of the contract on the part of Goldsborough, the proper remedy was.to besought by an action against him. The defendant excepted; and the verdict and judgment being against him, he appealed to thiscourt.
    
      In replevin foe tub uceo, it appeared that an agree» inent was entered into between A M and H G, to ex«" cute a charter par* ty tor a vessel, the defendant contain» from B to A, but which charter party was never executed. That Jí G put on board the vessel the'tobae-* ro, and nitor wards sold the sacie to the plaintiff* and gave an order for it on the defendant, who re* zasecl to deliver it* but insisted that the cargo should be completed, and the vessel should proceed to perform ih'r voya»», and that the freight should be paid, both of which K G, and the plaintiff, refuscd to do. ht'ld) th it the defendant had no lien oil the tobacco for freight, no freight being" in fact d ue before the eoui nencement of the voyage; and that if an injury had been sustained by the owner ot the vessel, in consequence of a violation of the eojttraet on the part qf H G. uw proper remedy Xras to ae sought by au action against lain.
    
      The cause was argued before Folk, Buchanan, Eaiile, and Johnson, J.
    
      Harper and Winder, for the Appellant,
    cited 1 Esp. Dig. 146. How vs. Beech, 3 Lev. 244. Winter vs. Fowcracres, 2 Roll. Rep. 39. Co. Litt. 209, a. Harford vs. 
      
      Peter, Cro. Jac. 483. Touteng vs. Hubbard, 3 Bos. & Pull. 295, 296, (note;) and 1 Com. on Cont. 354, p. Lawrence, J.
    
      Martin and W. Doh'ey, for the Appellee,
    cited Smith vs. Wilson, 8 East, 437. Molloy, 370; and Curling vs. Long, 1 Bos. & Pull. 634.
   JUDGMENT AIITRMEJJ,  