
    Schwartze, et al. vs. Tyson.
    A S in April 180$ twine: the owner of an American vessel, ter^1 party* freiSh"„ent with n reisl amt** proceeii tieiiverthecarefii tu ¿houia am jn^ciiáneaR ^er pappi-s ami fiacr, to d™ira”the carao to 5repe?miUonN ha priten to discharge ifnot!then proceed j*p^was^udiorised order the^yessei ¿Mm* wifhout S^o^'T’hirafra of the freight were sterling perVharrei ?nf'hatVSfeira!1<i •.3thiteriingifthe tvool. Madam to whlioutlandin^'tiie rarjro; i3s ad.. M¡fresí¡Vp«íf>'pd oi-'SL.'or ws1lí-verpooi or if chained at‘nIfo«;" íhí^LMm Cadiz, or back io efprinialtoV&c. ti>o íriiTa’nd’ayriredat ei^bi^or' dereofej»,*wiSithñ from° JifcS«edto Liverpool, without o’” tüe5 cargo,l>aói-ol-ptipel, rived there after delivered the cargo t ' Th^prociaín” Señto'rtheV^of^1’ 1809, the orders in council will have been withdrawn on the 10th of June then next, ter which day the tr*de of the U S with G Z?, as suspended by an act of congress may be re neweil. On delivery of the flour at Liverpool,the agent of N T paid freight at the vate of £2 50 per barrel, which was received by «he captain of the vessel without prejudice to the fuither claim of A S for 50 cent» |ter barrel,'so us to make the freight £3 per barrel for the voyage from Madeira to Liverpool* which the agent refused to paj; and ibr which AS brought an action uf assumpsit against N T — Held* that if the voyage from Madeira to Liverpool was undertaken m consequence of a new contract between JP as agent of N 4, and ih captan of the vessel, then the action might be supported: but that no evidence of auctfnew contract had been proved, for which reason A S could not recover
    Appeal from Baltimore County Court. JJssumpsit for freight, primage and average. The general issue was plead-eel.
    At the trial the plamtiuSp (now appellants,) gave in evi-on-the 4lh of April 1809, they.being owners of the ship James, an American vessel belonging to Balti-let her to freight to the defendant, (the appellee,) and a certain William Greetham and John Devereaux, tra(l>ng utlder the firm of Greetham and Devereaux, and a certain Thomas Lee, by a charter party of freightment unseal, and duly executed, dated the 3d of April 1809, w*iereby the master of the vessel was to receive on board of her a cargo of flour and cotton, and proceed to the Island of Madeira, and on his arrival there deliver the carS° UI,t0 Isaac Philips, or his order, agreeably to the bill of lading; that the said ship should, if Philips should so order and direct, proceed, after having changed her papers and d;lg’ to Liverpool, and there make a right and true delivery of the cargo to the agents, factors or consignees, of the freighters, provided that said ship be permitted to discharge lbe cargo at Liverpool, but if she should be prevented,the master with the ship should proceed from Liverpool either to Lisbon, Cadiz, or back to Madeira, as the &c. should order — provided that Philips should be at full liberty, on her arrival at Madeira, to order the ship either to the port of Cadiz or Lisbon, without first proceeding to Aiverpool, In consideration the freighters promised ti> lade on board the ship a full cargo of flour and cotton,and pay to the owners as and for the freight or hire of the ves-seb at anc* after the rate of niue shillings sterling for each every barrel of flour so to be laden on board the said ship, if the said voyage ends at Madeira’, eleven shillings three pence sterling per barrel, if the vessel proceeds from Madeira to Cadiz or Lisbon, without landing her cargo at Madeira, and thirteen shillings and six pencester-*¡n§ Per barrel if she lands her cargo at Madeira, reship ^ie same> ar!(1 proceeds to Lisbon or Cadiz therewith, or to Liverpool, or if prohibited discharging at Liverpool, shall proceed either to Lisbon, Cadiz, or back to Madeira, with 5 p. c. primage, &c. which said several sums shall be deemed and taken in full of freight, primage, port charges, other charges whatsoever, save and except the charges of landing said cargo at Madeira, and reshipping the same tor i¡tng/07ia. i hey Further gave in evidence, that the defendant, immediately after the date of the char-PartJr> an<1 *n pursuance thereof, put on board .of the glrlp James at Baltimore, 2200 barrels of flour, bis property, to bo transported to Madeira, and some other port or ports, pursuant to the stipulations in the charter party contained; and that the said ship, with these 2:200 barrels of flour on board, together with other flour belonging to the other charterers, sailed under the said charter party from Baltimore sometime in the month of April aforesaid, on the. voyage to Madeira, where she arrived sometime in the month of May following, and found there the said Isaac Philips, in the charter party mentioned, who was the 8ge,ni of the defendant, and the other charterers. They further gave in evidence a proclamation of the President of the United States, bearing date the 19lh day of April 1809, declaring and proclaiming that the orders in council will have been withdrawn on the 10th of June then next, after, which day the trade of the U. S. with G. B. as suspended by the act of congress, &c. may be renewed. They also gave in evidence, that the said ship, on or about the 25th of May 1809. with the said flour of the defendant on board, proceeded from the Island of Madeira, by order of Philips, and with the consent of the master of the vessel, to Liverpool, without either landing any part of the cargo, or changing the flag or papers of the ship, and arrived there a few days after the 10th day of June in the said year, and delivered the defendant’s said flour to his agent there, who received it for him and on his account, and paid freight aí?. the rate of two and a half dollars for each barrel, ■which the captain of the said vessel received without prejudice to the fuither claim of the plaintiffs for one half of a dollar on each barrel, so as to make up the freight of three dollars per barrel for the voyage from Madeira to Liverpool, which the said agent refused to pay, and for which this action is brought. They further gave in evidence, that Philips sailed from Baltimore to Madeira, sometime before the date of the said charter party, and before it was made, and that before he sailed he was constituted the agent of the defendant, and the other chatterers of the ship, for the purpose of receiving, directing and disposing, for them, of such cargoes and property as they might send to Madeira in the said ship, or others; and that before he so sailed he, for and by the directions of the defendant, and other charterers, made a contract with the plaintiffs for the said ship, and received particular verbal instructions from said charterers and the defendant to send on said ship to Liverpool from Madeira, in case the laws of the United States should be so altered as to render such a voyage lawful, and in no other case; and that the contract which he made as aforesaid, verbally, fpr the said ship, was entirely conformable to these orders, which were never in any manner altered by them, or intended to be departed from by him. They also gave iri evidence, that at the time of the said voyage from Madeira one dollar per barrel on flour was a reasonable freight on such a voyage. It was admitted that the clause in the charter party, which provides for a change of papers in certain events that might happen in the prosecution of the voyage, was understood to mean a colourable transfer and change of the property to some foreign subject, on whom the laws of the United States could not operate. The defendant then prayed the opinion of the cotirt, and their direction to the jury, that upon this proof the plaintiffs were not entitled to recover. And the Court, [Nicholson, Ch. J. and Bland A- J.] were of opinion, and so directed the jury, that if the voyage from Madeira to Liverpool was undertaken in consequence of a new contract between the said Isaac Philips, as agent of the defendant, and the captain of the said ship, the action might be supported, but that no evidence of such new contract had been offered, for which reason the plaintiffs could'not recover. The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court.
    The cause was argued before Chase, Ch. J. and Buchanan, Earle, Johnson, and Martin, J.
    Harper, for the Appellants.
    1. The direction of the court assumes an erroneous principle of law. It rests wholly on the idea that the voyage provided for by the charter party, and proved by the evidence stated in the bill of exceptions, was illegal and cannot be enforced. But this is a mistake. The voyage was not intended to evade the non intercourse or embargo laws, and was not forbidden by them. The goods were not to be placed in Madeira with a view of being introduced into England contrary to law, but with a view of being sent to England when the law should be repealed or suspended. It was lawful to send them thither with this view. And it was lawful to send them from thence to England, as soon as the proclamation, suspending the law, appeared, provided care was taken that they did not arrive before the 10th of June 1809, when the suspension was to take effect. In all this there was nothing illegal. Consequently the court erred in assuming, as the basis of their direction, an erroneous principle of law.
    2, Their opinion also contains an ei roneous statement of fact. It alleges that there was no evidence of any new contract between Philips and the captain, to proceed with the flour from Madeira to Liverpool, without unlading at the former place. Now it is evident that there was no stipulation in the charter party for such a voyage. There were three voyages from Madeira provided for by the charter party, but they all differed from this. It is also evident, from the bill of exceptions, that Philips was fully authorised to make this new contract with the captain; ana it is positively stated that the captain did go on this new voyage at the request of Philips. What is this but a contract? There cannot, it is apprehended, be one more express.
    No counsel argued for the Appe’iee.
   judgment AFFIRMED','  