BLAKE v. FOSTER. [ *491] [ 495 ] him for the residue, because he had no more interest in him at the time than for the ten years. But Bac. Abr. 192, referring to this case, adds a quære, because the reason does not seem satisfactory and in the case in Ventris, PEMBERTON, Ch. J. said, That the difference was where the party making the estate has a legal estate, and where a defeasible estate only: for, in the latter, a lease may work by estoppel, though an interest passed, so long as the estate out of which the lease was derived remained undefeated. Now here the entry of the heir was necessary, in order to defeat the lease. What is said in Co. Lit. 45, a, was probably taken from the case in Moor. 20, as said by three Judges but the report in Dal. 26, is more full; and there it is stated, That if a lessee for life lease for years, and afterwards purchase the reversion, and die within the term, the heir in reversion may confess and avoid the lease; but it does not follow from thence that the lessee might; and besides, it was not an adjudged case, for it is put under a nota. At all events, however, an estate which a man has jure uxoris, is very different from an estate in his own right pour autre vie; for the former derives its force from her estate, and his controlling power over it; and he has no more interest in the estate than a stranger. It is the lease of the wife alone, and therefore operates against the husband by estoppel only; and consequently against the lessee in equal degree. [After hearing Jervis contrà, and Abbott in reply, the Court took time to consider.t] GROSE, J. now delivered the opinion of the Court: This is an action of covenant, in which the plaintiff declares on a breach of covenant, contained in a lease of premises for twenty-one years, made by himself and his wife, in the lifetime of the wife, under which the defendant has occupied during the whole term. The breach assigned is, That the defendant has not, pursuant to the covenant, repaired the premises which were, during the term, ruinous and out of repair, and were so at the expiration of it. To this the defendant has pleaded several + Lord Kenyon, Ch. J. was absent, through indisposition, on the day when this case was argued. pleas, the two first of which conclude to the country; and the question here arises on the third and fourth pleas, to which there are demurrers. The third plea states that, before the date of the lease, Thomas Woodward, being seised in fee of the premises, devised them to trustees and their heirs, to the use of them and their heirs, in trust that they should from time to time, during the life of the wife, pay the rents to her, or permit her to receive them, to her own use and benefit;-that thereupon the husband and wife, in right of the wife, became entitled to the rents; and, being so entitled, made the indenture: that, before the expiration of the lease, the wife died, whereupon the said term ceased and ended; and that the premises were not out of repair during the lifetime of the wife. The causes of demurrer assigned to this plea are, that it does not *admit that the plaintiff or his wife had any estate in the premises at the time of the making of the indenture, or that any thing passed from either of them by that indenture. The fourth plea varies from the third, and states, That the husband and wife, in right of the wife, was seised in their demesne as of freehold for her life, with the like conclusion to this plea as to the third. The cause of demurrer shewn to this plea is, That the defendant has alleged a life estate in the wife, without shewing the commencement of it;—and this was the principal question we wished to look into. The general ground of demurrer on which the plaintiff proceeds as to both these pleas is, that the plaintiff is estopped by the indenture from so pleading, according to the rule in Co. Lit. 47, b; to which it is answered by the defendant, That according to the authority of the same book, where an interest passes, which is determined, there is no estoppel. The latter rule the counsel for the plaintiff has endeavoured to impeach. If this case stood on the third plea only, it could not be necessary to consider that question, which can only arise where it shall appear that some legal interest passed by the indenture; but, according to the facts disclosed by the third plea, the whole fee, both the possession and use, passed by the will of Thomas Woodward to the trustees, who were to receive and pay the rents and profits to the wife, it being the testator's object to create a trust which should place the estate out of the control and disposition of the BLAKE v. FOSTER. [ *496] BLAKE ข. FOSTEP. husband;—and were it to be holden, as has been argued, that by virtue of the statute of the 1 Ric. III. c. 1, the plaintiff could dispose of any legal interest in the estate so devised, it would in a great measure destroy that system of trusts by which real property is secured to women during their coverture, free from the control of their husbands. The cases which were cited in support of this position were cases of uses, which would be executed by the statute 27 H. VIII. and do not apply to a trust such as that created in favour of the plaintiff's wife. We are therefore of opinion that this third plea is no bar to the action. Abbott then, finding that the Court were disposed to give judgment against the plaintiff on the fourth plea, asked leave to amend, by striking out the demurrer to that plea, and replying specially whereupon The COURT gave leave to amend accordingly. 1800. May 3. [ 508 ] K. B. EASTER TERM. THE KING v. HARRISON AND COMPANY. (8 T. R. 508.) A conviction on the excise laws against such an one and company cannot be supported. A CONVICTION on the excise laws, under the above title, and against persons so described, was set down for argument in the peremptory paper; but when it was called on, LORD KENYON, Ch. J. said: It is impossible that a conviction of such an one and company can be supported. It is a mere nullity even against the party named. The Court are bound in duty to take care that summary proceedings before magistrates are regularly conducted, †The Court were prepared to overrule the formal as well as the substantial objections to this plea. V. HARRISON. whether the parties object to them or not. We cannot tell upon THE KING the face of this proceeding but that the delinquency of Harrison's partners, who are not before the Court, may have been imputed to him. As no action could be maintained against such an one and company, without naming all the parties, so neither can a conviction be sustained in this form. Per CURIAM: Conviction quashed.† Wood was to have argued in support of the conviction, and Holroyd against it. JACKSON AND ANOTHER v. CHARNOCK. (8 T. R. 509-515.) If A. let his ship to B. for a voyage, engaging to keep it in repair during the whole time, for which he is to receive freight on the return of the ship; and for the safety of the ship it becomes necessary during the voyage to put into a port to refit; the expense of refitting must be borne entirely by A.; and B. is not liable to contribute to it in proportion to his interest in the cargo, as for a general average. THIS was an action of covenant on a charter-party of affreightment of the Britannia, on a voyage from London to Madras, and from thence to any port or ports in the East Indies, and back again to the port of London. The action was brought for 8,2971. 128. for freight, and for 1,4401. for demurrage; and the defendant having pleaded, the cause was tried at the sittings after last Michaelmas Term, at Guildhall, before Lord KENYON, when the jury, by consent, found a verdict for the plaintiff, damages 15,000l. subject to the arbitration of three merchants as to the quantum, and the opinion of this Court as to a question of law, on the following case: The plaintiff, Jackson, was owner of the Britannia in 1796; and the other plaintiff Stewart, was captain of the same. On the 19th November, 1796, Jackson let to hire the ship for a voyage from London to India and back again, to the defendant, + Having regard to Ord. LXVIII. of R. S. C. it would appear that this case is still an authority in regard to 1800. May 6. [ 509] v. JACKSON who had contracted to furnish to the East India Company extra CHARNOCK. ships for their trade. The ship arrived safely at Bengal. On the 10th of December, 1797, after being surveyed by the East India Company's officers, and reported sea-worthy, she left Bengal laden with goods by the East India Company, to whom the ship was let by the defendant. On the 22nd of the same month, it was discovered that she had sprung a leak, and which leak gained upon the ship, notwithstanding every effort of the crew to keep it under. A consultation was holden by the officers of the ship, who were unanimously of opinion, that it was necessary for the common safety, that the ship should be lightened, as soon as possible, of spare materials and part of the cargo, which were thereupon thrown overboard; and in consequence of the ship being thus lightened, she arrived in Table Bay, at the Cape of Good Hope, on the 16th of February, 1797. Immediately on her arrival at the Cape, the ship, with the concurrence and approbation of the agents for all parties, was surveyed, and on that survey it was found that she could not proceed to England without being repaired; and that she could not be repaired without having her cargo taken out. A ship called the Bombay Castle was therefore hired, on board of which the cargo was placed; and the Britannia was thereupon repaired. The amount of the repairs, and other necessary and incidental charges connected with the repairs, together with the expenses of maintaining the crew, amounted to 4,3951. 4s. 6d. As soon as possible the cargo was reshipped, and the ship proceeded with the utmost despatch to Saint Helena, in her way to England; and after being captured and recaptured in the course of her voyage from thence to England, she arrived safely at the port of London on the 5th of October, 1798, and there landed and delivered what remained of her cargo into the Company's warehouses. "The question for the opinion of the Court arises solely on the construction of the charter-party,† and *is, Whether † A copy of the charter-party was annexed to the case. The following articles were those referred to in the argument: Art. 2. [ *510 ] [ *511 ] "The said owner and master engage and agree that the said ship is of the burden of 384 tons at the least, and that she shall forthwith be equipped and stored in all things fit for such voyage, and to the satisfaction of the said R. Charnock; and both at her departure outwards and homewards, and also |