
    Dickinson vs. Haslet.
    Appeal from Baltimore County Court. Jlssumps.it for money had and received, for money laid out and expend-; ed, and for money lent and advanced, brought by a shipper of goods against the captain and consignee of the cargo, to recover money retained for freight, &c. The general; issue was pleaded.
    1. At the trial the plaintiff, (now appellee,) gave in evi deuce a bill of lading, dated the 11th of March 1806, of certain goods shipped by the plaintiff on board the sehoon-; er called The Experiment, whereof the defendant was master, on a voyage from Baltimore to Barbadoes,'or a market, to be delivered to the defendant, or to his assigns, lie or they paying freight for the said goods, &c. one half the freight to be paid at the port of delivery, and the other half Upon the return of the schooner to Baltimore, with primage and average accustomed. He further gave in evidence an account rendered by the defendant to the plaintiff, charging him with 5 pr. ct. commission, transient and county tax, freight, storage, and a bill of exchange, and crediting him with the proceeds of the sale of the cargo. That the schooner Experiment sailed from the port of Baltimore, on her said voyage, on the 14th of March 1806, and on the 31 st of the same month arrived at the Island of Bermuda} and that the goods mentioned in the bill of lading were there landed and sold-by the defendant. And in order to show that defendant was not justified in retaining- the amount of freight charged in the account aforesaid, the plaintiff offered in evidence,' that the said vessél," at the commencement of the voyage from the port of Baltimore, was dot in a State of sea-Wortliiness, and that she was' not' competent to the performance of the voyage. To this testimony the defendant objected. But th’é court, [Nicholson, eh.' J.Q was of opinion that the plaintiff was at liberty to (show the vessel ñot to' have been sea-Worthy at the’ commencement of her Voyage, in order to resist the defendant’s claim to'freight. The defendant excepted'.
    
      In an aetion by a shippef* of good» against the consignee of the cargo, to recover money retained ibr freight — Held, that the plaintiff was at liberty to show the vessel not to have been sea worthy at the commencement of her voyage, in order resist the defendant^ claim in freight; and if the jury believed the vessel not to have been sea worthy9 and competent to perform the voyage at the time of its commencement that then ifte ‘defendant was not entitled to retain any thing for freight, and that the plaintiff was entitled to recover the amount sifc retained*
    
      2.- The defendant theft gave in evidence, that he invested the nett proceeds of said sales, in the account mentioned, in a bill of exchange stated in the account, and with the said bill purchased merchandize, which'he deli-" vered over to, and which was accepted by, the plaintiff, as Baltimore. The plaintiff then gave in evidence a protest made on the* 14th April 1806, by the defendant, before'the captain general, &cj of the Island of Bermuda, stating^ that on the 14th March 1806', he sailed in the schooner Experiment as master, from Baltimore for the Island of B&rbadoeSj and a market,-with a cargo on board consisting Of flour, &c. That proceeding down the bay, his main boom having been carried aWa'y ín a squall, he put into Severn river to get a new one. That on the 21st March 1806, having gota new main boom, he sailed from the river.aforesaid, &c. That on the 24th March 1806, in the Gulph stream,- he met with a heavy gale of wind from the N E, which made a breach over the said schooner fore and aft; that to get out of the gulph he thought it advisable to run to the westward. That shortly afterwards- a tremendous sea struck The Experiment, and hove her down on her beam ends, &c. That on the 29th his mate and crew declared the said schooner; from the injuries received in the repeated gales of wind since her leaving the land, was unfit to proceed on her destined voyage, and that they thought it for the interest of all concerned to make the nearest port. That he directed his course to Bermuda, where he arrived on the 81st, and visited the governor, and noted his protest. That a warrant to survey the schooner was obtained, and the gentleman named to survey,, reported her not sea-worthy, and condemned 
      iier according!v. The defendant then prayed tlie court to direct the jury, !}iat on llie evidence above given the plaiqr tsff was not entitleij ¿0 recover. But the court were of opinion, and so directed the jury, that if they should believe the vessel not to have been sea-woi-thy, and competent to perform the voyage at the time of its commencement, that then the defendant is not entitled to retain any thing for freight, and of course that the plaintiff may recover in this action the amount so retained bj the defendant. The defendant pxcep|ed; and the verdict and judgment being against him, he appealed to this court.
    The cause was argued before Buchanan, Earle» and J-OMNSPN, J. by
    
      Brice, for the Appellant;
    and by
    
      Purviance, for the Appellee.
   JUDGMENT AFEfRMEÍ).’  