case richard down appellant thomas revel and other respondent that January b  the master of a ship enter into a charter party on behalf of c his owner with  d on a bill bring by c against d for satisfaction of demurrage and other  damage b be examine as a witness at the hear the bill be retain with liberty  for c to bring his action at law this action be permit to be bring in the name  of b after his death and though he be the nominal plaintiff therein yet his  deposition in the equity suit be allow to be read in evidence on the trial of  the action Charles week be sole owner of a ship call the hope whereof Henry  Harley be master in the month of November be fit her out for a voyage from  brown er p London to Nevis in the west Indies to take in a load of sugar there  and to bring the same upon fraught to London on the d of November the  commissioner for victual his majesty navy have receive order from the lord of  the admiralty to get six month provision for man in the Mediterranean with all  convenient dispatch the fleet be then victual only to the month of April they  apply to Harley to hire the say ship to carry part thereof to Gibraltar or  port mahon and Mr week well know that in the common course of navigation ship  do not exceed or day in perform the voyage from Spithead to Gibraltar brown  nor one month from Spithead to port mahon and that after allow a reasonable  time for load and unload of the provision and for demurrage while a convoy be  get ready the ship will have earn the outward bind fraught either to Gibraltar  or port mahon without prejudice to her homeward bind voyage from Nevis  therefore he agree to carry such provision at the low rate of S per tun to  Gibraltar or S per tun to port mahon and for a small sum per month for  demurrage while the ship shall remain at Spithead wait for a convoy accord by  a charter party date the saint of December between the commissioner of the one  part and the say Henry Harley master and Charles week owner of the say ship of  the burden of tun or thereabouts of the other part Harley covenant that the  ship shall forthwith be in readiness for his majesty service and receive on  board from his store at towerhill all such victual provision as shall be load  on board her and have receive the same on board shall wind and weather permit  and after have sign bill of lade sail under convoy for Gibraltar or portmahon  as shall be require and be come there shall unload and deliver all the  provision as the admiral or commander in chief for the time be or the  commissioner agent shall direct and in case the say ship shall be detain at  Spithead for want of convoy long than day it be agree to allow demurrage at S  per tun per calendar month for every tun of provision load on board of her for  so many day as she shall be detain at Spithead from the first fair wind after  the expiration of the say day upon the master protest on oath be produce of  the time of her arrival at the say place and in case the ship shall not be  deliver or discharge in work day after her arrival at the deliver port  demurrage be to be allow for so many day as she shall be detain above the day  at the rate aforesaid and the commissioner covenant to allow Harley after the  rate of S to Gibraltar or S to port mahon per tun for so many tun of provision  as shall be load on board her and to have a perfect bill make out for what  shall appear due for her service and to be enter and number for payment in  course with lawful interest if not pay in six month accord to the practice of  the victual office and Harley further covenant that the ship shall be ready to  sail from Gravesend on or before the that of January then next and from the  down with such convoy as shall be appoint which charter party be execute by  Harley on behalf of the say Charles week the sole owner and the commissioner  cause the common seal of their office to be affix thereto although the charter  party be execute on the saint of December and the ship be then in readiness to  receive his majesty store which may have be put on board in six or brown seven  day yet the ship be not begin to be load till the saint of January follow and  not complete till the saint of the same month when tun and a half of victual  provision or thereabouts be put on board but sail order be not give till the  that and there be some time necessary take up in stow the provision and sail  from London to Gravesend and have the usual business relate to ship at that  port dispatch it be impossible for Harley to comply with the charter party by  which he be to be ready to sail from Gravesend on or before the that of  January nor be he able to sail from thence before the d of February by which  mean the ship be detain at least day long in the port of London than she ought  to have be accord to the true construction of the charter party the ship  however sail from Gravesend for the down as soon as the wind will permit which  be the d of February and arrive there the that of the same month when Harley  find no convoy be appoint and he be detain there for want of convoy till the  that though all proper application be make to the commis brown er p sioners  after the ship get into the down for convoy or if none can be have for leave  to sail to Spithead without convoy of which application the commissioner never  think proper to take the least notice or to answer any of the letter send they  on that occasion and Harley be actual refuse to be take under convoy by the  captain of one of his majesty ship of war which sail to Spithead from the down  while Harley lie there and upon the that of February while the ship be ride in  that open and dangerous road a violent storm of wind arise which sink and  destroy about sail of ship and oblige Harley to cut away the cable of his ship  and leave her anchor behind and let the ship be drive to sea which will  otherwise have be inevitable lose by which mean the ship be preserve and  arrive at Portsmouth upon the that of February after have sustain damage in  the storm to the amount of pound S which sum be necessary expend in repair  such damage the ship remain at Spithead until a convoy be appoint for the ship  load with victual store which be from the say that of February to the that of  April for which time there become due for demurrage accord to the charter  party pound S d on the say that of April the ship proceed with convoy consist  of capital ship of war under the command of sir Charles hardy and before they  sail the master of the ship load with victual store and bind for the same  voyage receive sail order from captain Murray of the Hampshire man of war  commodore of the victualer and transport to proceed to Lisbon instead of  proceed on their intend voyage to Gibraltar or port mahon in consequence of  order receive by he from sir Charles hardy and on the saint of the same brown  April the ship with the rest of the fleet by order of the commodore put into  Torbai where she remain till the d with a fair wind and then sail from thence  and arrive at Lisbon on the d of may follow where she be detain till the that  of August be near four month although when she be off the port of Lisbon she  be but four day sail from Gibraltar and the wind then fair and upon the that  of August the ship with other sail from Lisbon under the convoy of admiral  Osborne the then commander in chief who detain her in her passage from Lisbon  to Gibraltar imply and cruise day off cape saint Vincent though the wind be  then fair whereby the ship do not arrive at Gibraltar till the that of  September the carry the ship from Spithead to Lisbon be contrary to the  charter party which stipulate only for one voyage from Spithead to Gibraltar  or port mahon and the detention of her for near four month at Lisbon total  defeat her homeward bind voyage and therefore the damage the owner sustain  thereby ought to have be make good to he even if the necessity of the public  service require such detention the damage sustain by detain the ship for so  many month long do not only arise from the great expense in wage and provision  occasion thereby but also from the loss of her homeward bind voyage from Nevis  which will have amount at pound per tun fraught which be then the common rate  to pound the owner factor at Nevis have actual provide a cargo of sugar there  to have be bring home in the ship upon fraught the fraught of which will have  amount to that sum and have it not be for the owner dependence on the homeward  bind fraught be can not have afford to have carry the provision to Gibraltar  or port mahon for less than three time the fraught mention in the charter  party and a much large demurrage than be thereby agree for the voyage  stipulate in the charter party be in the disjunctive either to Gibraltar or  portmahon determine at Gibraltar the master be require to go there by the then  commander in chief where the ship be detain day the fraught of the cargo of  provision at S per tun to Gibraltar amount to pound S for the detention of the  ship day at Gibraltar more than the work day allow to unload at S per tun as  by the charter party the owner ought to have have a allowance of pound S d the  ship after have be detain at Gibraltar for about day and not undelivered of  her lade as she ought to have be pursuant to the charter party be on the that  of October order by the commodore to sail to port mahon where she arrive on  the that of November follow and Harley there deliver all the provision to  Russel revel Esq his majesty agent victualler at that port brown on the that  of December about three month after the ship have finish brown er p her voyage  stipulate by the charter party and not before she be discharge from his  majesty service at port mahon after have be detain twelve calendar month and  day from the time she be hire to the time she be discharge although the ship  perform the sail part of the voyage from the down to Gibraltar in day and from  the down to port mahon in day these deviation and detentions be very injurious  to the owner in regard it be too late in the year after the that of December  for he to victual and fit out the ship at portmahon for Nevis to bring home  her lade of sugar of the crop of to London and too early to fit out the ship  at portmahon for Nevis to bring home a lade of sugar of the crop of the owner  on the outset of the voyage victual the ship with month provision which be not  only sufficient to serve the ship company during her voyage contract for by  the charter party but also during her voyage from portmahon to Nevis and from  thence to London but by her detention for upward of month Harley be oblige to  victual her again and repair her at high and great prince at portmahon and to  keep the ship company in full pay until the that of February when she sail  back from portmahon to Gibraltar where she arrive on the that of that month on  the that of may the owner produce to the commissioner the certificate of the  say Russel revel of his have receive all the provision from the ship and  desire they to make out a perfect bill for what be due to he for the use and  service of the ship accord to the term of the charter party and for the damage  he have sustain by such extraordinary detention but which they refuse to do  and therefore after many other delay the say Charles week the owner in easter  term exhibit his bill in the court of exchequer against the commissioner of  the victual office and the say Henry Harley and sir Dudley rider Knt his  majesty attorney general pray that the commissioner may be decree to pay he  the several sum aforesaid or so much as he shall appear to have be damnified  by such long detention of his ship together with interest accord to the  charter party to this bill the commissioner appear and instead of answer joint  many of they answer separate and almost in the same word so that week be put  to a great and unnecessary expense in take copy of many separate answer  instead of one joint answer and the commissioner insist by such answer that  the ship be not detain in the port of London by mean of any delay in they or  their officer any long than about four or five day over and beyond the time  when by the term of the charter party she be to be ready to sail from  Gravesend brown that they be not any way oblige to find convoy from the down  nor liable to pay any thing for demurrage for the ship stay in the down or for  any loss sustain on account thereof for that if week have not be satisfy with  the term of the charter party he be at liberty to make what provision he think  fit against such casualty and that by permit Harley to enter into the charter  party without such precaution or restriction he take the hazard of stay for  convoy in the down upon himself that they ought not to pay any thing on  account of the damage the ship sustain by the storm while she lie in the down  in regard there be no clause in the charter party whereby they undertake to  make good any damage which may happen to the ship that the voyage contract for  to Gibraltar or port mahon be not nor can accord to the term of the charter  party be determine or complete on the ship arrival at Gibraltar and continue  there day or at any other time till after work day after her arrival at port  mahon unless soon unload that they be entire stranger to the intend voyage to  and from Nevis and to the profit the plaintiff may make by the fraught of  sugar from thence and apprehend that they be in no sort concern therein or  answerable for the loss of such fraught that they be Willing to allow for the  demurrage at Spithead be one calendar month and ten day pound S d for  demurrage for three calendar month and day during which time the ship be  detain at Lisbon pound S d for demurrage for day during which time the ship be  detain off cape saint Vincent pound S d for demurrage for one calendar month  and day during which time the ship be detain at Gibraltar pound S d for  demurrage for day at port mahon over and above the work day pound S d and for  the fraught of tun of provision from London to port mahon at S per tun pound S  d brown er p before any further proceed be have in the cause the say Charles  week die have first make his will and appoint the appellant sole executor  thereof and soon after his death the appellant prove such will and revive the  suit and the cause be afterward at issue diverse witness be examine on both  side and a commission sue out for examination of witness at Nevis and a  witness be examine thereon and the deposition be publish the cause come on to  be hear before the baron of the exchequer on the that of December and  afterward by adjournment on the that of the same month and also on the that of  January and saint of February when the court be please to decree that the bill  shall be retain for a year with liberty in the mean time for the appellant to  bring his action as he shall think proper and the survive commissioner be to  admit the execution of the charter party mention in the plead as their act and  deed and all further direction be reserve for which purpose all party be to  brown be at liberty to resort back to the court from time to time as there  shall be occasion from this decree the appellant appeal insist e starke g  perrott S common r Bicknell that as his testator have no remedy at law and be  oblige to come into the court of exchequer for relief the court ought to have  make a decree in favour of the appellant for such of his demand as be allow by  the commissioner answer to be well find and for which they submit to make out  a bill videlicet for the fraught of the provision and for demurrage while the  ship lie at Spithead and ought not to have send the appellant to law to  recover damage not dispute in equity and thereby oblige he to be at a very  great expense to prove such demand that the bring a action against the  commissioner in order to charge they personal or obtain a satisfaction out of  their estate be contrary to the manifest intent of the charter party by which  it be provide that upon produce a certificate from the agent victualler of the  delivery of the provision and store load on board a perfect bill shall be make  out for the sum which the owner shall appear to be entitle to to carry  interest from the expiration of six month accord to the practice of the  victual which evident show that the owner satisfaction be to come from the  crown or the public and not from the commissioner that the court ought either  to have decree the appellant the several sum claim and which be prove in the  cause without the least contrariety of evidence to have be the amount of the  damage sustain by the owner of the ship by the neglect in not load her and  give the proper sail order in time and by the detention of her and the several  other breach of the charter party or else ought to have direct one or more  proper issue or issue to be try at law to have ascertain the real amount of  such damage as be not sufficient prove that the court instead of leave the  appellant to bring his action at law ought to have direct such issue or issue  as aforesaid in which he ought to be plaintiff since by leave he to bring his  action the same must necessary be bring in the name of Harley as be the party  to the charter party but who be mere a trustee for the appellant which the  appellant be not empower to do by the decree and the plaintiff in such action  may release the same when bring which the decree bad in no sort provide  against that if a action be to be bring by the appellant in the name of Harley  he will be deprive of the benefit of his testimony who have prove several fact  in the cause which after this great length of time be not capable of be prove  by any other person because neither Harley himself can be examine as a witness  nor can his deposition be read on the trial of a action in which he be  plaintiff but which the appellant may avail himself of in case proper issue  have be direct and to be deprive of this testimony at law be the more  unreasonable as the court upon the hear determine that the brown appellant be  entitle to the benefit of harley testimony and allow his deposition to be read  he be only a trustee in the charter party for the owner of the ship that the  appellant will likewise on such action to be bring in the name of Harley lose  the benefit of the evidence of another very material witness who have at a  very great expense be examine upon a commission at Nevis and be not answerable  to a court of law here nor can his deposition take on that commission be make  use of in such action inasmuch as it will appear at the trial that they be  take in a cause between other party and therefore it be apprehend that the  court be refuse to direct such issue as aforesaid the fair and proper method  of try the real merit of the cause between the party be contrary to justice  and the establish rule of equity brown er p on the other side it be contend d  rider W Murray that if the ship have be let by the owner to the commissioner  and such agreement have be enter into by he as be by Harley the master and if  the commissioner have personal execute the charter party it will have be very  clear and plain that week can not have maintain any suit in equity for all or  any of the present demand but must have seek his remedy at law on the charter  party and as by the decree the appellant be at liberty to bring a action at  law as he shall be advice and the commissioner be direct to admit the deed  there be no reason for direct any issue at law to inquire what damage have be  sustain by the breach of the charter party that if a issue be to be direct  instead of a action it may be understand that the same be direct to try what  damage week have sustain by his ship be disable from make a voyage to Nevis  and take a cargo of sugar of that year crop or at least such a issue may give  some countenance to a demand which appear on the face of the plead to be  absolute groundless and extravagant and as to the objection of the appellant  be deprive of harley evidence upon the trial of a action which he may not have  be in case a issue have be direct there be no instance of court of equity  direct issue to be try at law where the demand be legal and find on deed or  write contract mere or only to enable a person who by law be no witness to be  a good witness or to enable any of the party to read the deposition of a  witness who evidence can not be read at law after hear counsel on this appeal  it be order and adjudge that in the decree after the word be retain for the  word a year be leave out and the word two year insert instead thereof and that  after the word for the plaintiff to bring the word his action be leave out and  the word a action in the name of the say Henry Harley insert instead thereof  and that after the word as their act and deed these word shall be add and in  case the deposition of the say Henry Harley shall be offer brown to be read at  the trial of the say action the respondent shall not make any objection  thereto by reason of his be name plaintiff in such action but save to the say  respondent all other objection to the competency or credit of the say Henry  Harley and upon the consent of the respondent counsel signify at the bar it be  further order that notwithstanding the death of the say Henry Harley the  appellant shall be at liberty to proceed in his name as if live and that no  advantage shall be take on the say trial or by writ of error on account of his  death and it be further order and adjudge that with these variation and  addition the say decree shall be affirm jour vol p