་་

1380.

NEWBERRY

and Another

บ.

COLVIN and Others.

months certain, and until the voyage be ended, paying
to the owners for the use or hire of the ship at and after
the rate of 25s. per ton, per calendar month, during the
term of twelve calendar months certain, and till her re-
turn to the port of London and clearance, or up to the
day of her being lost, captured, or last seen or heard of.
But it was objected, on the part of the plaintiffs below,
that this contract contains no word of express demise; 661
and undoubtedly it does not. But even in a lease of
lands, no such words are absolutely necessary; for in
Coke on Littleton, 45 b. it is said," any words amounting
to a grant are sufficient to constitute a lease;" and there,
are cases in the books to show that if a man covenants
that A. shall have land for a term, rendering rent, or that
the covenantee shall enjoy land, those words will amount.
to a lease. (a) Now the present case approaches very
nearly to those above referred to; for the owners do co-
venant that the ship shall be kept in the service of Be-

tham for a certain time; Betham covenants that he will receive her into his service during that time, and will pay for the use or hire of her a certain freight. These, we think, are stipulations equivalent in effect to the actual demise of the ship. But further, the whole of the ship is so far parted with, that it is thought necessary that Betham should covenant with the owners that they should be allowed to load, on the outward voyage, goods not exceeding in the whole 100 tons.

"

Again, the mode in which the ship was to be used, and the freight reserved by the charter-party was to be satisfied, supports the same construction. The ship, both on the outward and homeward voyage, was to be put up by Betham, (who in many parts of the charter

party is called the freighter,) as a general carrying ship. The freight which the owners stipulate to receive of him is quite independent of that which he receives for the

(a) Doe dem. Johnson v. Ashburner, 5 T. R. 163. n. and see 1 Leonard, 136. and other cases collected Bac. Ab. tit. Lease, K.

G

"

"

1831.

NEWBERRY

and Another

v.

COLVIN

and Others.

carriage of goods. Theirs is a time freight, his depends on the carriage of the goods shipped. If the ship went out without any cargo, or was lost before her arrival at her outward or homeward destination, no freight would be received by Betham, but the owners would still receive the same amount as if she had returned full, or in case of loss of the ship, up to the day of her loss. Under these circumstances, we think that Betham, the captain, in putting up the ship as a general ship, and signing the bills of lading, cannot be considered as acting as the servant or agent of the shipowners, or in any other manner than as the temporary owner of the ship.

The three objections principally relied on in argument by the defendants in error, were, First, that the same person who takes the ship as freighter was himself appointed captain by the owners: Secondly, that an agent was put on board by the owners, vested with powers inconsistent with Betham's authority and ownership of the vessel pro tempore: and Thirdly, that the owners virtually received the benefit of the homeward voyage by the transmission of the freight bills to England. With respect to the first, it is almost the invariable usage of owners of ships to appoint the captain and crew, though they let out a ship on a charter-party: the chartering of the ship not being so much the chartering of the hull, as of the ship in a fit state for mercantile adventure; and there seems no reason therefore, why chartering a ship in any particular case to the captain of that ship, should create any more responsibility in the owners to the shippers of goods, where such fact is known to them, any more than if the ship was freighted to an entire stranger. The second objection is answered by reference to the charter-party itself, by which it appears, the authority of the agent was limited to the superintendence of the acts of Betham as captain, and not as freighter; the utmost authority given to the agent being that of displacing Betham as master, and appointing another per

any

son as master, in case he should be guilty of a breach
of
of the agreements made on his part. If Betham
ceased to be master, by the terms of the charter-party,
he would still continue the freighter, possessing the
same power of putting goods on board, and liable to the
same responsibility on the one hand, for a time-freight,
and on the other, for the safe conveyance of the goods
shipped. As to the third objection, the charter-party
gives the owners the security of the freight-bills re-
ceived by the freighter, but gives the owner no direct or
immediate interest in the freight earned, the whole of
the surplus of which belongs to Betham alone. If he
had obtained no homeward cargo from Calcutta, so that
no freight-bills would have been transmitted; the owner
would still be entitled to the same freight. The secu-
rity does not extend at all to intermediate voyages. If
the ship had been lost on such voyage, there would have
been no freight payable to Betham, but still he must
have made good his own liability to the owners for the
use and hire of the vessel. The effect of the charter-
party is, that it makes Betham the owner pro tempore,
and freight is to be paid to him for the use of the ship.
We think, therefore, that the defendants below were not
liable to an action for the non-delivery of these goods,
and that the judgment of the Court of King's Bench
must be reversed.

Judgment reversed.

1830.

NEWBERRY

and Another

υ.

COLVIN

and Others.

1830.

Nov. 26th. WILLIAM RIDOUT, Executor of JOHN RIDOUT, Senior, v. BRISTOW and Wife.

missory note

Where a pro- ASSUMPSIT by the executor of the payee of the following promissory note made by the female deconsideration fendant after the death of her first husband, John Ridout, for which it

expresses the

is given, evi- junior, and before her second marriage, against Bristow, dence cannot the second husband, and the female defendant as maker. be given of a consideration inconsistent with its terms.

"4th Sept. 1824. "Twelve months after date I promise to pay Mr. John Ridout (the testator) or order one hundred pounds, value received by my late husband. As witness my hand, "Love Ridout."

£32 was paid into court on the counts for goods sold, money lent, and money paid. At the trial before Mr. Baron Bolland, at the Exchequer sittings after last term, it appeared, that in 1820 the testator' John Ridout, his executor, William, and the intestate, John, were a father and two sons in trade together; and that the intestate died in that year, considerably in debt to his father. A settlement of accounts between his widow and administratrix and the testator was entered on, but having failed, mutual releases were proposed to be executed between them. The testator refused to execute till the above note was given to cover several claims which he had paid, and might be called on to pay on his son's account. A list of these claims was made out at the time of giving the note. For defendants it was contended: 1st, That the note on the face of it negatived any consideration between the parties, and purported to be made for the debt of another:

2dly, That the note was in the nature of a penalty to indemnify testator as well for future as existing debts of his son the intestate; and that the plaintiff could only recover so much as was proved to have been so paid by his testator. The plaintiff then proved payment by the testator of four claims on behalf of intestate amounting to about 997., one of which the defendant (the administratrix) disputed, as not paid on account of the intestate, but on her own account; and another as its subject-matter was forgotten by the witness; payment of a third by testator was not distinctly shewn; and a fourth was clearly proved to be due from the intestate, and paid by testator. A deduction of 30l. was also claimed for a debt which they urged John Ridout senior had promised to pay. It was left to the jury to say what was really due, and the verdict was for the whole amount of the note, deducting the 327. paid into court. A rule having been obtained to set aside the verdict and enter a nonsuit on the points taken at the trial,

Follett shewed cause.-It was not necessary to shew consideration for the note; but if it was, a sufficient consideration appeared on the face of it, viz. value received by the deceased husband of the maker. Whether the note imported a consideration or not, the onus of shewing the absence of it was on the defendant. Nor was it necessary that a consideration should be shewn between the parties; for a note expressed to be given by A. to B. to pay him the debt of C., may be sued on by B. (a) This case reverses Rann v. Hughes, (b) where an administratrix was sued on her personal undertaking to pay the debt of the intestate, and was held not liable, because no consideration appeared for the promise laid:

(a) See Popplewell v. Wilson, 1 Strange, 264. on Error from C. P. cited by Bayley, B. post.

(6) 7 T. R. 350. n.

1830.

RIDOUT

v.

BRISTOW

et Ux.