
    Ward against Whitney & Sturgis.
    Charter-party, as to freight; bond on attachment.
    
   Action on a bond given to discharge an attachment issued against Tremlett, as a non-resident debtor. The application for attachment was made November 17,1847. The cause of action set forth was a refusal to give an acceptance for the freight of the ship James Edwards, from Pictou, Nova Scotia, to New York, under a charter-party, the freight payable in an approved acceptance at thirty days. The principal question in the cause related to the construction of the following clause of the charter-party: “Freight payable at four dollars per chald/ron, Pictou mines measure of thirty ewt., in an approved acceptance of thirty days from the period of discharging the cargo.”

The execution of the charter-party was proved by the deposition of Captain Webster, master of the vessel, taken de lene esse, and read on the trial without objection. There was a subscribing witness to the charter-party, who, it was shown by the deposition, had resided in London when the charter-party was executed. The reading of the charter-party was objected to, because the subscribing witness had not been called, and the objection was overruled.

Captain Webster had claimed an interest in the vessel, as owner of one-eighth, from some years before the charter-party was executed until May, 1848. His claim rested only upon a verbal understanding with the plaintiff, whose name alone appeared in the ship’s papers as owner. He (Webster) never had any bill of sale, never paid for the part of the vessel he claimed, and in May, 1848, relinquished the claim. He was allowed a share of the profits during the time when he claimed an interest in the vessel, covering the time when the freight in question was earned. He released his interest to the plaintiff before his examination.

The vessel received at Pictou 400 chaldrons of coal (not weighed nor the weight ascertained), which were discharged in Hew York, as directed by Tremlett’s agents, on the 23d of October. The coal was weighed as discharged, and amounted to upwards of 450 chaldrons of thirty cwt. each, and the master demanded an acceptance for-the freight, at the rate of four dollars for every thirty cwt. The agents offered to pay cash, deducting thirty days’ interest, for 400 chaldrons,- at four dollars per chaldron, which was refused.

The defendants moved for a nonsuit, on the grounds, 1st. That the demand for freight was for more than was due; that the amount actually due had been offered and refused. 2d. That the bond was void, because not executed by Tremlett or Ms agent, with two sureties. 3d. That Webster was owner of one-eighth of the vessel, and ought to have been joined as plaintiff in the attachment suit.

The objection was overruled, and judgment rendered in favor of the plaintiff.

The Court of Appeals affirmed the judgment.

(S. C., 3 Sandf. 399; 8 N. Y. 442.)  