
    Armett Brown versus John Delano and Others.
    A. ship was chartered to go from New Bedford to Savannah, there take a cargo of timber and carry the same to England. After the cargo was laden on board, an embargo took place, and it was agreed by the agent for the hirers and the master, that she should return to Neio Bedford, and there wait the ending of the embargo. After arriving at Neio Bedford, war was declared against England, which put a stop to the voyage. In the mean time the agent had sold the cargo. The purchaser was held entitled to the cargo, paying the expense of unloading, without paying any freight; and this, notwithstanding the master had signed bills of lading promising to deliver the cargo in England.
    
    This was an action of replevin, to which the defendants pleaded property in a stranger ; replication, property in the plaintiff, and issue thereon.
    This issue was tried at an adjournment of this Court for the county of Bristol, held at Taunton, in May, 1814, before the present Chief Justice.
    
    The facts proved at the trial, as reported by the judge, were as follows. On the third of February, 1812, the defendants, being owners of a certain ship, entered into a charter-party with one E Brown, as agent of the company of Brown and others, merchants of Plymouth, in England, by which charter-party the defendants were bound to send the said ship to Savannah, in Georgia, there to take in a cargo of timber and other wood, and proceed to Plymouth, or some other port in England. The ship proceeded to * Savannah, and there took in a cargo, pursuant to the [* 371 charter-party ; which cargo was purchased for and in behalf of the said house in England, by the said E. Brown, their agent. After the ship was loaded, and before she could go to sea, the act of the United States laying an embargo had passed, and, on the 15th of April, 1812, notice of it reached Savannah ; which prevented the ship from sailing. An agreement in writing was then made, by the said E. Brown and the master of the ship, that the ship should be carried to New Bedford, there to remain until the embargo should cease. Before this, the master of the ship had signed bills of lading in the usual form, one of which had been sent by the said agent to the house in England. After the ship arrived at New Bed-ford, war was declared between the United States and Great Britain. The said E. Brown testified, that his principals in England had, by letter, authorized him to dispose of the cargo in America, on account of the war, and that, in pursuance of said authority, he sold the same to the plaintiff for a valuable and sufficient consideration, of which he gave immediate notice to the defendants. After the purchase, the plaintiff came on to New Bedford and claimed the cargo, and tendered to the said Delano the sum of $ 220, for the expenses of unlading the cargo, dockage, &c. But the defendants refused to deliver the cargo, alleging that they ought to be paid their freight, at least from Savannah to New Bedford, and that they had a right to retain the property until the bill of lading, which had been sent on to England, was returned or cancelled. The defendants also offered evidénce to show that the plaintiff, as owner, had derived an advantage from the removal of the timber from Savannah to New Bedford, which was rejected ; and the jury were instructed, if they believed that the sum tendered was sufficient to indemnify the defendants for unlading the cargo, and for the charge of dockage, &c., to find a verdict for the plaintiff, which they did.
    The defendants moved for a new trial, because E. Brown was admitted as a witness, and because the jury were misdirected in matter of law.
    * This motion was argued at this term, by Whitman and Holmes, for the defendants, and Washburn, for the plaintiff,
    after which, the opinion of the Court was delivered by
    
      
      
        Jackson, J., having been of counsel, did not sit in this cause.
    
   Parker, C. J.

Three objections are made to the verdict in this case. 1. That E. Brown was not a competent witness. 2. That the judge, at the trial, ought to have instructed the jury, that freight was due from Savannah to New Bedford, and, therefore, sufficient money had not been tendered, to entitle the plaintiff to a delivery of the timber. 3. That an indemnity against the bill of lading, signed by the master of the ship and transmitted to England, should have been offered.

The first objection has, very properly, been abandoned ; it being manifest that Brown was merely an agent, without any interest in the transaction.

With respect to the second, it appears clearly, from the report of the trial, that the master of the ship, for the benefit of the owners, agreed with Brown, the agent of the freighters, to suspend the contract during the operation of the embargo, and, for the mutual convenience of the parties, it was agreed that the ship should be sailed to New Bedford; which was to avoid expense, and the injury resulting from the climate. This agreement was afterwards recognised and assented to by the defendants ; and it was manifestly for their interest to have the ship at their own doors, where she could be taken care of at a small expense, and where she would be liable to little injury during an embargo, which was indefinite in duration, rather than at a distant Southern port. There is no pretence in justice for freight-money from Savannah to New Bedford; for the dissolution of the contract by the war must be considered in the same light as if the ship had lain at Savannah until the war took place. The accidental increased value of the timber gives no right to demand freight upon a contract which was at first suspended by mutual consent, and after-wards dissolved by irresistible authority.

* Nor is there any thing in the third objection. The [ * 373 | bill of lading was of no legal effect after the declaration of war, nor can any action be maintained upon it. It will always be a sufficient answer, that it became impossible to perform the contract, without violating the laws of the country. Besides, the authorized receipt of the cargo here by an agent of the owners, and the sale of it, would, of themselves, defeat any attempt to maintain an action upon the bill of lading.

Judgment according to the verdict. 
      
      
        Palmer vs. Lorillard, 15 Johns. 14, 16 Johns. 348. — Odlin vs. Ins. Co. Penn. 2 Wash. Cir. R. 312. —Abott, Ship. 427.
     