1828. BURLEIGH v. PLATT. cause the act of another, so far as it is beneficial, enures to my benefit, therefore, so far as it is prejudicial also, it shall enure to my prejudice; a reasoning not very conclusive. The advantage extends to all; and why? because there is but one debt, and payment therefore by any one pro tanto diminishes that debt. But why should the disadvantage extend to all? The liability is not one, though the debt is the liability of each is several and personal to himself; and why should the act of one, affecting his separate liability, affect also the distinct liability of another? Then as to the second branch of Lord Mansfield's argument, viz. that the debt is admitted to be due, and that a promise attaches thereupon as a consequence of law, it must proceed upon this notion, that the debt was suspended by the statute, and revived by the acknowledgment; but, with submission, this is not so: the statute does not affect the debt, it merely suspends the remedy; it is the right of action which is taken away, not the foundation of it. It has, indeed, been for a long time supposed that the effect of the statute was to raise a presumption of payment, and that any thing, therefore, which repelled that presumption, at once set up the debt again, and if this view were the right one, Lord Mansfield's principle would, perhaps, be correct. But the Courts are now unanimous that this is not the proper construction or effect of the statute, and they hold that to defeat its operation it is necessary to give such evidence as will be sufficient to raise the inference of a new promise. The consideration for the promise, in other words, the debt remained; it was the legal obligation which was or would have been put in abeyance by the statute, and is renewed or kept alive by the subsequent promise. The new liability is not, therefore, under these circumstances, as Lord Mansfield supposed, a consequence of the revival of the debt, for that never slept; it is a consequence solely of a new promise, or an acknowledgment which is evidence of a promise. The reasons, therefore, of Lord Mansfield do not seem to warrant his conclusion, and we have endeavoured before to prove that there is no rule of law inconsistent with a contrary determination. It remains, therefore, only to shew that this is not a case which the Courts ought to be anxious to press; that it is in fact necessarily attended with great hardship, possibly with some cruelty; and here we may content ourselves with observing, that the hardship has been admitted, and that a bill has just passed (a) rendering the written acknowledgment of one not binding on the others, and obviating the legal inconveniences which would have resulted in the case of a joint contract from such a determination. We may refer also to the opinion of Lord Ellenborough expressed in Brantram v. Wharton, and to that of the learned Judges of the Court of King's Bench in Atkins v. Tredgold; and though the consequences might, without unfairness, be pressed much farther, this will be sufficient for our purpose. It may, therefore, though it is with the most unfeigned deference that such a remark is hazarded, be perhaps regretted that the Courts, having " put the construction of the statute on a better footing than formerly," should have hesitated in this case to follow out their more correct principle to its legitimate consequences; and it is the more to be regretted, because the recent enactment has expressly provided that payment of interest shall have the effect of an acknowledgment as before. The clauses of that act which relate to the present subject are the following. In the first section, after enacting, "That in an action of debt or upon the case grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or either of them, or to deprive any party of the benefits thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the parties chargeable thereby;" it adds, "that where there shall be two or more joint contractors or executors, or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said enactments, or any of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever: provided also, that in actions to be (a) 9 G. 4. c. 14. 1828. BURLEIGH V. PLATT. 1828. BURLEIGH V. PLATT. commenced against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited acts, or this act, as to one or more of such joint contractors, or executors, or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff." In the second section it is enacted, "That if any defendant or defendants in any action on any simple contract shall plead any matter in abatement, to the effect that any person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said recited acts or this act, or either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same." And in the third section it is enacted, "That no indorsement or memorandum of any payment written or made after the time appointed for this act to take effect, upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes." It is true that this last section makes the proof of payment, whether of principal or interest, more difficult, and places it out of the power of the holder to forge evidence for himself. This wise and salutary statute comes into operation on the 1st day of January 1829, LIABILITY OF SHIP-OWNERS TO FREIGHTER.-CHARTER-PARTY. In the KING'S BENCH.- Easter Term. COLVIN and Others, surviving Partners, &c. v. New- 1828. a charter ACTION on the case for negligence in not safely Construction carrying the plaintiff's goods. There were four special put by the Court upon a counts varying the complaint, and a count for trover: very special appointment but as nothing ultimately turned upon the form of de- of a master claring, it is unnecessary to set them out. The de- and commander, by an fendants pleaded the general issue, and the cause came instrument in on for trial at Guildhall in the sittings after Michaelmas the nature of term in 1826, when the jury found a special verdict, party. which set forth in substance as follows: That on the 11th March 1817, the plaintiffs and Alexander Colvin the elder, since deceased, shipped on board the Benson, then riding at anchor in the Hooghly, 2171 bags of sugar and 191 chests of indigo, at that time in good order and well conditioned, consigned to Bazett, Farquhar, Crawford, and Co., for which a bill of lading was signed by George Betham as master; that the defendants and one James Capper, since deceased, were the owners of the ship; and that before she sailed to the East Indies a charter-party was entered into, dated the 7th of June 1816, between one of the defendants. Benson, as managing owner, of the one part, and Betham of the other, whereby the owner "did promise and agree to and with the said G. B., his executors, &c., that the said G. B. should be, and he was thereby ac 1828. COLVIN v. NEWBERRY. cordingly appointed to the command of the said ship, but with such restrictions as thereinafter mentioned," &c.; and the said G. B. was thereby allowed and permitted to receive, take, and load on board the said ship in the port of London all such lawful goods as he should think fit, reserving sufficient stowage for 100 tons to be laden on account of the said owner; and the said ship being so laden, it was agreed that he the said G. B. should and would set sail therewith, and proceed to Calcutta, with liberty to touch at Madeira and Madras; and being arrived at Calcutta, should and would unload the said outward cargo, and reload the said ship with a cargo of East India produce, and return with the same to the port of London; and upon her arrival there, and being discharged and cleared, the said intended voyage and service was to end and be completed (the act of God, &c.) And the said G. B. agreed that if any of the complement of thirty-five should happen to die, he would, at the expence of the owner, keep up the number, if practicable, to thirty-two, and would provide, at the owner's expence, all necessary stores, &c.; and further, that the ship should, if required, be kept and continued in the service aforesaid for the term of twelve calendar months, and for such longer time as might be necessary to complete the voyage. And the owner agreed to provide water casks, and also coals and wood for cooking the passengers' provisions, " for which the said freighter was to pay and allow unto the said owner at and after the rate of 14d. for every passenger per lunar month." In consideration whereof "the said George Betham did thereby promise and agree to and with the said owner that he the said G. B. should and would take upon himself the command of the said ship for and during her said intended voyage, and until her return to the port of London, and should and would navigate her to the utmost of his skill and ability;" and also that he would |