ation of what is the opinion we may respectively now entertain, and the degree of assurance with which that opinion is formed; and what I have said, I have said only for reasons which, in the sequel, will appear. And first, I shall begin by stating, that Hutton v. Bragg, being directly in point, I know of no case, as I understand the cases, before nor since, (nor has any such been cited,) repugnant to it; none repugnant in decision; none, of necessity, inconsistent in point of principle; none, in point of analogy, the other way. I have read in loose and confident assertion, that the decision excited surprise at the time; and I have no hesitation in saying, that the case did not, I believe, meet with universal concurrence, and this may be taken even more strongly if necessary. It is enough for me to know the doctrine in question has received the sanction of this Court, which never has been expressly dissented from by any other; that this is now the third time it is argued here, and that it was intended to have been argued before all the Judges, if the convenience of the other Courts would have permitted; and I lament that it did not. Do I, under these circumstances, entertain a degree of conviction sufficiently strong that the former judgment was erroneous, is the question which, with reference to myself, I have been bound to consider; doubts entertained are not sufficient to overturn a decision pronounced. Much has been said of convenience or inconvenience one way or the other; on this I put no stress, for this is a case which is not to lay down any rule of general operation for the future, but to turn upon the language of an instrument which may be differently framed in all future cases, and may have been, and, if common prudence has guided the conduct of the parties, must have been in all cases since Hutton v. Bragg was decided. It is admitted, and indeed it is self-evident, that a ship may be let to hire, so as to constitute the party 1821. CHRISTIE ข. LEWIS. 1821. CHRISTIE V. LEWIS. hiring the owner for the time, provided that such appears upon the instrument to be the intent of the parties; and this may be done by apt words of hiring and letting, or by necessary construction. But, it is said, that the mere words of hiring and letting will not, of themselves, invest a party with the possession of the ship, if all the provisions of the instrument qualify and restrain the words, and shew that the hiring and letting were not used in their ordinary sense and signification; in other words, that the construction must be on the whole instrument; and to this I agree, subject to this qualification, viz. that if the separate provisions of the instrument would be manifestly repugnant to giving such a construction to the general words, they ought not to receive it; but, if there be no direct repugnance, then the general words being emphatic and essential words, and words applied to other subjects of known legal operation, cannot be rejected, but must operate according to their common, and, still more, their received legal import. And to this the question comes, for I must here again observe (there being nothing incongruous in the nature of the thing, that a ship should be let to hire so as to make the hirer the owner for the time, and whether so let or not depending on the nature of the agreement) it resolves itself into a mere question of construction in the particular case. What then are the general words in this case, and what the special provisions? The words are, on the part of the ship-owner, "granted and to freight let," and of the charterer, "hired and to freight taken," than which, of themselves, I know no words more apt to let pass the possession of a ship as well as of a house, though I agree the subjects are different; they are words of grant and demise, and pass possession in the particular case. Such is the opinion of Lord Ellenborough in the case of The Master of the Trinity House v. Clark ; his lordship's words are "The charter-party grants' the ship and lets it to hire and freight,' (the very words of this case) which are proper words of lease, and would, of themselves, pass the possession. The purpose is mentioned, but the mention of the purpose does not restrain the possession, though it may restrain or qualify the use of the thing let to hire." I refer to this case, not as in point as to the decision, but for the construction of words similar in both charter-parties, and so far, at least, Lord Ellenborough's opinion is in point, and as to the other grounds of decision in the case so referred to, I shall presently advert to them. In Saville v. Campion, Lord Chief Justice Abbott says, "The terms of the charter-party in the case of Vallejo v. Wheeler are not very clearly shown in the report of the case, but it has always been considered that the ship was thereby let to freight. In the case of The Trinity House v. Clark the deed was in that form, and in the judgment in that case great reliance was placed on the objects and purpose as well as on the terms of the deed. The charterparty in the case of Hutton v. Bragg was also in terms of letting to hire." "In the case now before the Court the charter-party contains no such terms." And here, again, I would observe, I cite this case only for the materiality attached as in the former case to these words, and not for the whole case, as in point to the present; for in fairness I should say, as far as I know the opinion of the Judges in that Court, they are not, probably, favorable, on the whole, to Hutton v. Bragg. But it is said, that "letting to freight," are words to be understood in opposition to the letting of the ship, and are to be deemed a mere specification of the mode in which the ship was to be employed; to this I have already given the answer, namely, that the words were precisely the same in the case of The Corporation of the Trinity House v. Clark, where no such distinction was taken, still less adopted; VOL. II. Hh and 1821. CHRISTIE v. LEWIS. 1821. CHRISTIE V. LEWIS. and in which the construction was expressly put as in the subsequent case, that such words by themselves would pass the possession of the ship; but it is to be observed the words are not only, "to freight let," the words are "for freight and hire" of the said vessel for such voyage. If, then, these words would, of themselves, pass the possession of the ship, what is there in the other provisions of the instrument repugnant to it, and to turn the words round to a meaning different from what they would otherwise bear? In the first place, it is in terms a letting and taking of the ship, that is, the whole ship; next, it is not a taking of so much tonnage, or according to a settled rate of tonnage, but a gross sum for the whole voyage. It was competent to the charterer, therefore, to make any contract with others for the freight of their goods, and to put her up as a general ship from the moment of the execution of the charter-party for the voyage contracted for. Their contract would, therefore, be with the freighter, and not with the general owner; and so was it in this case - goods were sent on board on a contract, not with the actual owner, but with the freighter or temporary owner. So far there is nothing in the particular provisions repugnant to a general letting and hiring, but co-incident and consentaneous with it; it being sufficient, however, that there is nothing discordant or repugnant. But, it is said, the master and the crew were appointed by the owner; that the management of the ship remained with the master; that this constituted a continuing possession; and that the charter-party is but, in effect, a covenant to convey, modified by a detail of stipulations for managing the ship, so as not to disturb the actual ownership: and this ground has been mainly relied on. That it has weight, I do not mean to deny; but, that it over-rules the words of grant and letting, is that which I cannot admit. A ship may be let with a stipu- Hh 2 "As a 1821. CHRISTIE V. LEWIS. |