there must be a delay. That was a lawful delivery. Fenning's Wharf was expressly proved at the trial to be a fit, and usual, and convenient place for the landing of goods. There is another passage upon this point, in Abbott (k): "If the consignee sends a lighter to fetch the goods, it seems that the master of the ship is obliged, by the custom of the river Thames, to watch them in the lighter until the lighter is fully laden; and he cannot discharge himself from this obligation by declaring to the lighterman that he has not hands to guard the lighter, unless the consignee consent to release him from the performance of it. But it has been much contested, whether the master is by the usage, bound to take care of the lighter after it is fully laden, until the time when it can properly be removed from the ship to the wharf." That passage shows that the consignee must be ready. If the consignee does not wait the arrival of the ship, the master may proceed at once to land the goods, and to discharge himself from his liability on the bill of lading, under the provisions of which he is only liable for the carriage of the goods from port to port. [The Lord Chancellor :-The captain took the goods on board for delivery in the port of London; he had no right to change the risk till they were delivered. No answer is given to that part of the case, which, therefore, resolves itself into a question of costs.] Then as to the second point, the admission of the evidence: The question is whether the evidence given at the trial, of prior transactions, is evidence to show what is the meaning of this word "delivered." It is submitted that it is not admissible for such a purpose. (k) Abbott on Shipping, 261; 4th edit. 1844. BOURNE v. GATLIFF. 1844. BOURNE v. GATLIFF. Evidence was offered of transactions of delivery by carts in the streets of London. It may be a question whether landing at a wharf is a delivery at the port of London; but the evidence offered is of transactions ultra the bill of lading, and this was given under the first count. The general custom had not then been set up; the defendants had not pleaded any custom. The plaintiff had simply put in a bill of lading; the evidence offered as to former transactions had nothing to do with the bill of lading; and this evidence is to amplify the conditions and nature of the contract. It comes within the case of Yates v. Pym (1). It goes to show that under a contract for delivery at the port of London, for freight, primage, and average, the party is bound, for freight, primage, and average, to deliver in the port of London, and convey along the streets to a particular place in the city of London. It is impossible to give the contract such an extended construction. In Yates v. Pym, which was an action on a warranty of a sale of prime singed bacon, evidence was offered to show that by a practice in the bacon trade, bacon to a certain degree tainted was received as prime singed; and of another practice, by which the purchaser was precluded from all remedy if he did not discover and point out the defect by an early day. Lord Chief Justice Gibbs there said, "I cannot think that any custom of trade can be admissible to prove the proposition now contended for; and my brother Heath (who had rejected the evidence at the trial), for whose opinion we have always felt such a just deference, was right in this, as he was in most other cases that ever came before him." The contracts are completely separate. Evidence (1) 6 Taunt. 446. might be given to show what, under a contract for delivery in the port of London, was the usage of the port as to delivery in a certain part of the port, but not evidence of what had been done in previous transactions between these parties in conveying goods from the limits of the port to another place. Suppose in other transactions the parties had, under a similar contract to this, not only brought the goods to the port of London, but had carried them on to York and Liverpool, no evidence of that fact could be received to show what was to be done on a single contract to deliver in the port of London. Such evidence is, in fact, to amplify and enlarge the contract, not to give its terms a sensible meaning. It is therefore inadmissible. Now as to the point whether the defendants are liable as carriers or wharfingers: If the goods, when landed on the wharf, were still in the possession of the defendants, they were so in the character of wharfingers, and not of carriers, and this action is not maintainable against them. If the goods had been burnt on board ship, the master would not be liable under the statute. The shipowner contracts to bring the goods to London, and to deliver them in the port of London. If, when on the wharf, the goods are still to be considered in his possession, then the statute protects them, and he holds them as wharfinger. [The Lord Chancellor: If he should wrongfully put them on shore, would he not be responsible for that?]--He might be, but not in this way.-[The Lord Chancellor: You have wrongfully put them on shore; you must excuse yourself for the consequences.]-- We excuse ourselves in this way: we say he is not liable as a carrier. In Garside v. The Proprietors of the Trent and Mersey Naviga 1844. BOURNE V. GATLIFF. 1844. tion (m), a common carrier between A. and B., emBOURNE ployed to carry goods to B. to be forwarded to C., carried them to B., and put them into his ware . GATLIFF, house there, where they were destroyed by an accidental fire before he had an opportunity of forwarding them he was held not liable for the loss. In re Webb, Wallington, and Others (n), is a case to the same effect. In the second count there is an allegation of a contract to convey the goods from Ireland to London; but there is a further allegation of a contract to convey them to the plaintiff's warehouse in Ironmonger-lane, where, on payment of the freight and the cartage, the goods would have been delivered to the plaintiff. On this the question which arises is, what was the character in which these defendants held the goods at Fenning's Wharf? Here the evidence improperly admitted in another part of the case, becomes of importance to the defendants. The contract stated in the second count is to carry the goods to Ironmonger-lane, and is therefore wholly distinct from the other. Under that count it is clear that after the arrival in the port, they held the goods as warehousemen or wharfingers; and it may be contended that it was in performance of the second contract that the goods were landed. There was, therefore, no necessity for them to wait for a demand of the goods. There was, in fact, under the second count, no right of delivery elsewhere than at Ironmonger-lane. The plaintiff cannot use the evidence and reject it; he cannot say that the defendants have broken the contract for delivery at the port of London, and then charge the defendants with a non-delivery at Ironmonger-lane. Being landed (m) 4 Term Rep. 581. (n) 8 Taunt. 443. for the latter purpose, the defendants were no longer in the character of carriers but of wharfingers. If the contract is to convey from Belfast to Ironmonger-lane, the landing at Fenning's Wharf was in performance of that contract. In some part of the transit the defendants change their character. Garside v. Trent and Mersey Navigation is here distinctly in point. When the goods were there at Manchester, they were held to be in the possession of the Navigation Company as wharfingers, and not as carriers. It is exactly so here. Then as to the last point in the case, the error of the Court of Exchequer Chamber as to the costs. There was a declaration consisting of two counts: the first alleged a contract to convey to the port of London; the second a contract to convey to London, to take care of the goods when landed, and to convey them thence to the plaintiff's place of business in Ironmonger-lane, and there to deliver them. There were several pleas. The first was the general issue; the second alleged a delivery; the third, a deposit of the goods at Fenning's Wharf, a place alleged to be a fit and convenient place for such a purpose, and their destruction there by an accidental fire without any default of the defendants; the fourth, the arrival of the goods in London and defendants' readiness to deliver, but that the plaintiff was not ready to receive, wherefore they were landed at Fenning's Wharf, being a fit place for that purpose, and there destroyed by an accidental fire; the fifth plea was a plea to the second count, and denied that the defendants received the goods for the purposes stated in that count; the sixth plea alleged that the goods were received under a bill of lading (which was set out), were landed at Fenning's Wharf, a fit place for that purpose, and were there |