ciable. It is not payable upon a contingency; for a note payable to two partners, which, in effect, is payable to one or to the other, is equally so. So, also, foreign bills of exchange, drawn in sets, may equally be said to be payable upon contingencies; for the direction is to pay this my first bill of exchange, the second and third not being paid; or the second, the first, and third not being paid; which is in effect directing the bill to be paid to the indorsee who may hold the first, or to the indorsee who may hold the second. ABBOTT C. J. I have no doubt that this instrument, in the form in which it is declared on, is not a promissory note within the statute of Anne; for if a note is made payable to one or other of two persons, it is payable to either of them, only on the contingency of its not having been paid to the other, and is not a good promissory note within the statute. I am also of opi nion, that the second count cannot be supported; for admitting that an action might be maintained upon a note which appeared to be for value received, still the consideration should be stated in the declaration, in order that it may be seen if it is a consideration which will support an action; for there are many considerations which will not support an action, although there may be a subsequent promise. If, therefore, an action could be maintained in such a case, the plaintiff ought to declare upon the original consideration. For these reasons, I am of opinion that there should be judgment for the defendant. BAYLEY J. I am of the same opinion. If there had been any community of interest stated between the payees 1819. BLANCKEN HAGEN against BLUNDELL 1819. BLANCKEN HAGEN against BLUNDELL. payees so as in any respect to identify Damer and Blanckenhagen, it is possible that an action might have been maintained on this note; but in the way in which the declaration has been framed, stating this as a note payable to one or the other, I am very clearly of opinion that it is not that description of note which the statute of Anne contemplated. HOLROYD J. I am of the same opinion, that this note does not come within the description of notes contemplated by the statute of Anne. It is, in fact, a promise to pay to A., if the maker does not pay to B. and C. It is therefore a conditional promise, and consequently not within the statute. And I am also of opinion that the second count cannot be supported; for at common law, a promissory note or bill of exchange was not considered as a specialty. Indeed Lord Holt continually insisted that no action could be brought on a promissory note, but that it must be brought for the original consideration. And the statute of Anne itself recites, "That the payee of a note cannot maintain an action by the custom of merchants, against the person who first made and signed the same." This, therefore, is a legislative declaration, that at common law no such action could be brought upon a promissory note; and therefore I am of opinion, upon both grounds, that there ought to be judgment for the defendant. BEST J. concurred. Judgment for defendant. 1819. HUNTER against FRY. (a) COVENANT upon a charter-party of affreight Wednesday, By a charter described to be of the burden of 261 tons, and the freighter load a full and complete cargo: Held that the loading of goods covenanted to equal in num ber of tons to the tonnage described in the charter-party, was not a per formance of this covenant; but that the freighter was bound to put on board as much goods as the ship was capable of carrying with ment, made between the plaintiff and the defend-party a ship was ant, the former being described as the owner of the ship Hunter, of the burden of 261 tons or thereabouts, then lying in the port of London. The owner covenanted that the master should load on board, freight free, goods not exceeding 100 tons, and sail to Madeira; and that upon her arrival there, the master should discharge, if required, and also receive on board, freight free, such other goods as the agents of the freighters at Madeira might think fit; and then should proceed to the West Indies direct off Cape Henry, or to some other port in Hayti; and when arrived at a port of delivery, and after having discharged the said outward cargo, should immediately receive on board from the agents or correspondents of the freighters, a full and complete cargo of coffee, in bags and casks; but not more of the latter than should be sufficient for a ground tier, and of logwood only such a quantity as should be sufficient for dunnage, but not exceeding in the whole what the said ship could reasonably stow and carry over and above her stores, tackle, apparel, furniture, and provisions; and then that the vessel should sail direct for the port of London, and there deliver her cargo. The freighter covenanted that his agents at Hayti should immediately reload on board of the vessel, in the customary manner, such full and complete cargo, within the time therein limited. The declaration then stated that the master VOL. II. (a) This case was argued at Serjeants' Inn. Ff pro safety. 1819. HUNTER against FRY. proceeded from London to Madeira, and from Madeira to Hayti, and discharged his outward cargo, and gave notice to the defendant that he was ready to receive a full and complete cargo of coffee, in bags and casks, &c.; and that he did receive and take on board at Hayti aforesaid, from the agents of the defendant, 28 tons of coffee and 20 tons of logwood, being all the goods and merchandise which the agents of the defendant thought fit to load on board her, although the said ship could then and there have reasonably stowed, over and above her stores, tackle, &c., a much larger quantity, to wit, 500 tons of coffee other than and besides the coffee and logwood so laden on board the said ship at Hayti aforesaid, whereof the defendant's agents had notice. Breach, that the defendant or his agents did not nor would reload on board the said vessel, at Hayti aforesaid, a full and complete cargo to plaintiff's damage. Plea, that defendant did reload on board the said vessel, at Hayti aforesaid, a full and complete cargo, according to the charter-party, upon which issue was joined. The cause was tried at the sittings after Trinity term, before Abbott J., when the jury found a verdict for the plaintiff, with 9187. damages, subject to the opinion of the Court on the following case. The charter-party stated in the declaration was executed on the day it bore date, by the defendant, who then resided in London. The said ship, with the goods on board shipped by defendant, proceeded from London to Cape Henry, in Hayti, which was fixed on as the only port for the delivery of her outward cargo, and the loading of her homeward cargo. The ship could reasonably have stowed and carried, as a homeward cargo from Hayti to London, over and above her stores, tackle, apparel, furniture, and provisions, 340 tons of coffee coffee in bags, 40 tons of coffee in casks for a ground tier, and 20 tons of logwood for dunnage. The said ship being ready to take in her homeward cargo, the defendant's agents at Cape Henry supplied her with 288 tons of sugar, 28 tons of coffee, and 20 tons of logwood for dunnage, which were received on board by the master; but the agents did not supply any other homeward cargo, and (the ship was obliged to proceed from Hayti on her voyage home, with only those goods on board, and without being, in point of fact, fully loaded. The defendant paid freight for the goods actually shipped and brought home. The sum of 9187. 18s., awarded as damages, was the amount of the freight which would have been earned, had the vessel been loaded with a full and complete cargo of coffee in bags and casks, and logwood for dunnage as aforesaid, beyond the payments made by the defendant in respect of freight for the goods which were supplied. Campbell was to have argued for the plaintiff; but the Court called on F. Pollock contrà. The ship-owner, by the charterparty, has represented the vessel to be of a given burden; and the freighter, who covenants to load a complete cargo, does so only on the faith that the representation of the owner, as to the capacity of the ship, is true. It would be hard, therefore, that the freighter should incur any liability in consequence of such a misrepresentation. In Abbott on Shipping, 287., it is stated that if an entire ship be hired, and the burden thereof be expressed in the charter-party, and the merchant covenant to pay a certain sum for every ton of goods which he shall load 1819. HUNTER again st FRY. |