for such plea does not lead to a termination of the suit. But the Court said, that the only question was, Whether they could consider the demurrer as frivolous? and not thinking that it was so, they would not hold it to be a discontinuance. Accordingly the rule was made absolute. The Plaintiff having joined in demurrer, the case now came on to be argued. Marshall Serjt. was called upon to support the declaration. He contended that there were cases in which a wife may sue jointly with her husband, without being executrix or administratrix, and that if there were any such case, it could not be necessary to aver the representative character of the wife; thus supposing the goods in question to have been the property of the wife before her marriage, and to have been seized before the marriage, and the replevin brought afterwards, it would be necessary to join the wife as a Plaintiff in the suit, although she had no representative character. The Court said, there might be cases where the wife ought to join, though neither executrix or administratrix; but then something ought to be stated on the record by which her title might appear: and that in the present case nothing appeared upon the face of the record from whence the Court could infer that the wife had any interest in the goods taken, and it was not sufficient for the Plaintiffs to put imaginary cases of interest, but the title ought to be averred. Onslow Serjt. for the Defendant. Judgment for the Defendant (a). (a) See Abbot and Alice his Wife v. Blofield, Cro. Jac. 644. where, in assumpsit by baron and feme for mo- 1807. SERRES บ. DODD. If there be a clause in ships' articles that the seamen may leave at the end of three months if the ship is in port or in perfect safety, of which the captain is to be the sole judge, and the ship be in port in safety after three months, the sea men may leave the ship, without the permission of the captain. NEAVE V. PRATT. THIS boat boatswain, quarter-master, and two lieutenants. The cause was tried before Mr. Justice Chambre, who directed the attention of the jury to the clause which left it to the captain to exercise his judgment as to the propriety of permitting any of the crew to leave the ship at the end of their time, telling them, that under such a clause he did not think the captain at liberty to refuse leave without sufficient reason. The jury found a verdict for the Plaintiff for 41. Shepherd Serjt. having on a former day obtained a rule nisi for setting aside this verdict, and having a new trial granted, Cockell and Bayley Serjts. now showed cause, and relying on the directions of the learned Judge to the jury, observed, that the real question seemed to be, Whether in the situation in which the ship was, it could be deemed a desertion of the Plaintiff's to have quitted her without leave, considering that his time was expired? They contended that as there could be no such thing as absolute safety, the main point for the jury to consider was, Whether the ship was, according to all reasonable appearances, in a state of safety when he quitted? and that the Defendant had manifested his opinion upon the subject by discharging so many officers previous to the time at which the Plaintiff went on shore. Shepherd Serjt. contrà, insisted, that though the Plaintiff's time had expired, still he could not quit the ship without leave of the captain; and that a different construction of the articles would lead to the conclusion that the sailors might leave the ship in a gale of wind, or at any other moment when their service was most wanted. He observed, that if a man contract to build a house according to the judgment of any particular surveyor, the 1807. NEAVE บ. PRATT. 1807. NEAVE บ. PRATT. the question upon such a contract is no longer whether the house be well built, but whether it be built to the satisfaction of that surveyor; that the present Plaintiff having quitted during the absence of the captain from the ship, had deprived him of all opportunity of exercising his judgment as to the fitness of the time he had chosen, and consequently no question could arise as to the propriety or impropriety of the mode in which he had exercised that judgment. He cited Wood v. Worsley,2 H. Bl. 574. and the same case in error, 6 Term Rep. 710. HEATH J. I doubt whether the proviso upon which this question has arisen be not void, viz. that the captain is to be the sole judge whether the Plaintiff should leave at the end of his three months or not, for it is wholly repugnant to the preceding part of the clause enabling him to quit at the end of three months. Suppose a man to covenant to pay rent, provided that he shall pay nothing unless he likes it; the covenant to pay would be good and the proviso void. So in this case, the liberty to quit the ship at the end of three months, provided the captain pleases, is no liberty at all. I think, therefore, these articles ought to receive a reasonable construction, and that we ought not, by our interpretation of them, to enable the captain to keep his crew until the end of the war. Such an interpretation would be subversive of the liberties of these sailors. Whether the ship was or was not in a state of safety when the Plaintiff quitted her, was a question for the jury, and they have decided it. The case of Wood v. Worsley does not apply to this case, because there the Plaintiffs had undertaken for the act of another person at all events. ROOKE J. I think the construction put upon these articles a very reasonable one, and that we ought not to disturb what has been done by the jury. CHAMBRE CHAMBRE J. Under these articles I think it quite clear that the captain could not have taken his crew to the East Indies. Had the verdict been the other way there would have been no objection to it, but I think there is no reason to interfere with what the jury have done. Rule discharged (a). (a) Vide Eagleton v. East India Co. 3 Bos. & Pull. 55. 1807. NEAVE v. PRATT. MOORES v. HOPPER. April 29th. by charter-party between himself THIS was an action brought against the Defendant 4., as captain, as captain of the ship Blaydes, for negligence in stowing a cargo of currants which he had taken board at Zante to be delivered in England. on one and B., agreed to receive a cargo of the agents and as signs of B., and B. agreed to pro cure the same; A. having received a cargo aboard, signed a bill of lading, stating the goods to have been shipped by order of C. and to be deliver ed to his order, At the trial before Heath J. at the Guildhall Sittings after last term, it appeared that a charter-party had been entered into between the Defendant as captain and Partridge, by which the Defendant agreed to receive a full cargo of currants of the agents or assigns of Partridge, and deliver the same to Partridge, his executors, administrators or assigns; and Partridge agreed to procure a cargo of fruit, and pay freight; that when the cargo was taken on board at Zante, the Defendant signed and freight to be a bill of lading, which stated that the goods were shipped paid according to by Samuel Strange, by order of Rovedino of Venice, and Moores of Leghorn, to be delivered to the order of Wm. Moores; and freight to be paid à tenor del contratto del stowing the goods, noleggio. On the part of the Defendant it was objected brought by C. against A., held that the action should have been brought in the name of that C. was only Partridge, with whom the charter-party was made, it an agent, and that being evident that Moores was merely his agent. The the action should have been brought jury said they had no doubt that Moores was merely an in the name of B. agent; whereupon the Plaintiff was nonsuited. A rule the charter-party : negligence in In an action for |