(h) Splidt v. Heath, 2 Camp. 57, n This was an action for the non-delivery of certain quantities of St. Petersburg hemp, to be shipped on or before the 31st

August, O. S., in ships to be named by the vendor. The names of the ships were given, hut they arrived in England with only a very small portion of the hemp after the time of delivery has expired, and the question be whether the vendor is then bound to deliver, or the purchaser to receive, the answer is, that, as the arrival has already taken place, there is no longer anything to control the delivery hut the specification of time; and as the condition of time is no Longer subordinate, it must be allowed its full effect in determining the liability of the parties, and thus be regarded as of the essence of the contract. Again, if the question be whether the mention of a time for shipment imposes an absolute obligation that the goods shall be shipped at that date, the answer is that there is no other obligation in the contract to which the time of shipment is subordinate, and therefore, since the parties have seen lit to embody it in the contract, time must in this case be regarded as of the essence of the contract.

It will be noticed that in construing a contract for the sale of goods by a particular vessel, a distinction is made between the specification of a day certain for the shipment, (i) and the limiting a time for the delivery, (j) - the former being regarded as a warranty, and the latter as merely a condition upon which the execution of the contract depends. If goods are not shipped when the vendor says they shall be, he is liable in all events to the purchaser for the non-arrival; if goods are not delivered within the time limited, in consequence of non-arrival, neither party can compel the other to perform the contract of sale. In both these cases time is an essential element in the contract, but not for the same purpose in both. In the one, it fixes the period when the vendor's absolute liability is to begin; in the other, when the conditional liability of vendor and purchaser is to end. Some confusion occasionally arises in discussing the question in any given case, whether time is or is not of the essence of the contract; but as a general thing, we think the matter may be rendered clear by considering whether, in the particular case, the time mentioned is or is not subordinate to any other condition. If it is, then its observance is less important, and it may be regarded as not of the essence of the contract. If, on the other hand, it be a condition, and not subordinate to any other condition of the contract, then, since the parties have seen fit to give it this primary place and controlling influence in their contract, courts must hold it to be of the essence of the contract.

Thus, in the case of a sale on arrival, the goods to be delivered within a certain time, if the question be whether the mention of a time of delivery imposes an absolute obligation to deliver by that time, although the goods have not arrived, the answer is, that, as the delivery depends, by the very terms of the contract, upon the arrival, it is therefore subordinate to the arrival, and the time limited for delivery cannot control the condition of arrival, and cannot be so far of the essence of the contract as to make the seller responsible for the non-delivery. But if the goods arrive contracted for. The hemp designed for the ships was confiscated as British property on board the lighters in the Baltic, before it was put on board the ship, the latter being obliged to cut cable and put to sea, to avoid an embargo. Lord Ellen-borough, in giving judgment for the plaintiff, said, this case was decided by that of Atkinson v. Ritchie, 10 East, 530; and as the defendants had absolutely engaged that the hemp should be shipped, they were liable for this not being done, from whatever cause the circumstance had arisen.

(i) Splidt v. Heath, 2 Camp. 57, u. Atkinson v. Ritchie, 10 East, 530; Gor-rissen v. Perrin, 2 C. B. (n. s.) 681.

(j) Russell v. Nicoll, 3 Wend. 112; Alewyn v. Pryor, Ryan & Moo. 406.

When the engagement to deliver is absolute, the vendor cannot * excuse himself by showing that he was prevented from completing his bargain by the blockade of the port, or by any other inevitable accident. (k)

Where there is a contract for the sale of a cargo to be shipped by a particular vessel then on her way to the port of lading, and the kind and quality of the goods is fixed, as well as the price, and provision is made for a fair allowance to the buyer for an inferior description of the same kind of goods, the vendor also engaging to deliver what may be shipped on his account and in conformity with his invoice, and it is stipulated that the contract shall be void if the vessel should make an intermediate voyage, or should be lost, it is held that, with the two exceptions stipulated, this is a warranty that a cargo of the kind and quality specified shall be shipped by the vessel, and brought home for the benefit of the buyers. (l) But if there be also a

(k) Atkinson v. Ritchie, 10 East, 530; Spence v. Chadwick, 10 A. & E. (n. s.) 517; Hayward v. Scougall, 2 Camp. 56; DeMedeiros v. Hill, 5 Car. & P. 182.

(l) Simond v. Braddon, 2 C. B. 324, 40 E. L. & Eq. 285. The plaintiff bought of the defendant a cargo of Arracan rice, per Severn, then on her way to Akyab; the cargo to consist of fair average Necrenzie rice, the price to be 11s. 6d. per cwt. with a fair allowance for Larong, or any inferior description of rice (if any), but the vendor engaged to deliver what was shipped on his own account and in conformity with his invoice; the buyer to have the option of discharging the vessel at any good and sale European port, within certain specified limits; the contract to be void provided the vessel made the intermediate voyage between Akyab and Calcutta, allowed in the charter-party. Payment to be made in cash on arrival of vessel with the rice at the port of call in England. There were other provisions as to the insurance, etc., and the contract was to be void if the vessel was lost. The vessel proceeded to Akyab, shipped a full cargo of Necrenzie rice, and arrived with it a1 Falmouth,