Form of Remedy on.

If the charter-party be not under seal, the form of remedy for any breach of any promise contained in the same, either in the non-payment of freight or otherwise, is by action of assumpsit, or sometimes debt: see Str. 1089. If the charter-party be under seal, covenant or debt is the proper remedy; and on a covenant to pay freight to the master of the ship, the owners cannot sue in assumpsit, and the master must sue in debt or covenant for such freight: Schack v. Anthony, 1 M. & S. 573; Bell v. Kymer, 3 Camp. 549, n. a.; Atty v. Parish, 1 N. R. 104. But debt lies only on the deed, if the sum demanded is ascertained thereby, or it sufficiently appears how much is due: Andr. 156; 2 Str. 1089, s. c. And so, if there be a charter-party between the master and freighter, assumpsit will not lie on the implied undertaking of the owners, that the goods would be safely and securely carried: Colvin v. Newberry, 6 Moo. 425, n.; and see Atkinson v. Cottisworth, 3 B. & C. 647. Where the owner and freighter covenant by deed that forty days shall be allowed for loading and unloading, the freighter impliedly covenants not to detain the ship longer than that time; and, if he do, the owner's remedy is upon the deed, and not in assumpsit, as upon the implied contract: Randall v. Lynch, 12 East, 179; Bessy v. Evans, 4 Camp. 131; 2 Chit. Rep. 500. So, if the owner execute a deed to the merchant, containing the usual covenant for a right delivery of the

cargo, he cannot be sued by the merchant for not delivering it; [*359] in an action on the case or assumpsit, grounded on the bill of lading signed by the master: Hunter v. Princess, 10 East, 378. But it would be otherwise if the owners were not charged directly on the contract of charter-party, but upon their general liability. Where a charter-party under seal was made by the master in that character with merchants, who did not know that he was also a part-owner in the ship, as in fact he was, it was held that they might sue him and the other owners, in an action on the case for a breach of such general duties as were not inconsistent with the stipulations of the charter-party; such as the not providing necessaries for the voyage, and employing a negligent and unskilful master: Leslie v. Wilson, 3 B. & B. 171, s. c.; 6 Moo. 415. So, an action may be maintained on a parol contract, notwithstanding a sealed charter-party, if such contract be distinct in its provisions, and not inconsistent with the deed: White v. Parkin, 12 East, 578. It is usual for the parties to charter-parties to bind themselves to each other in a penal sum for the performance of their respective stipulations; but this does not preclude the party from bringing his action. on any of the other clauses; and he may recover damages beyond the amount of the penalty: Harrison v. Wright, 13 East, 343; Winter v. Trimmer, 1 W. Bl. R. 395; ante, 149, 150.

Whether the charter-party be under seal or not, an action founded on it must be in the name of the party to it, and not in the name of another, to whom he may have assigned his interest: ante, 144. Therefore, the purchaser of a ship previously chartered cannot sue for the freight carried under the charty-party in his own name, Splidt v. Bowles, 10 East, 279, although the owner become a bankrupt, ib.;

although payment to him will be a good discharge to an action brought in the name of the seller, at least if the purchase be made before the ship sails on the voyage: Morrison v. Parsons, 2 Taunt. 407; Pinder v. Willes, 1 Marsh. 248. Where goods were shipped in pursuance of a charter-party made by the master with P., and whereby he engaged to receive a cargo from the agents or assignees of P., and deliver the same to him or his assignees, and, upon the shipment, he signed a bill of lading, stating the goods to have been shipped by one S., by order of R. and M., to be delivered to the order of M., and freight to be paid according to the tenor of the contract of affreightment, it was held that M. could not maintain an action against the master for the negligence in stowing the cargo: Moores v. Hopper, 2 N. R. 411. If a charter-party is expressed to be made between certain parties, as between A. and B., owners of a ship, whereof C. is master, of the one part, and D. and E. of the other part, and purports to contain covenants with C., nevertheless C. cannot bring an action in his name on the covenants expressed to be made with him, nor give a release of them, even though he seals and delivers the instrument: Scudamore v. Vaudenstene, 2 Inst. 673. But, if the charter-party is not so expressed to be made between the parties, it would be otherwise: Cooker v. Child, 2 Lev. 74. The execution of the charter-party by the master, although said to be done. on behalf of the owners, does not furnish a direct action, founded upon the instrument itself, against them, though it does against the master himself: see Wilkes v. Bache, 2 East, 142; 7 T. R. 207; Abbott on Ship. 164. All the persons by whom the contract of charter-party is made, and who are jointly interested in it, or the damages to be recovered for its non-performance, must be joined in the action; for otherwise the plt. may be nonsuited at the trial: ante, 143. So, all the parties who are joint contractors, and jointly liable to be sued on the contract, must be made co-defts., or deft. may plead the nonjoinder in abatement: ante, 14.

Form of Pleadings.

Declaration.] Where the declaration is in assumpsit on the charterparty, it usually commences by setting out the whole charterparty, and the *parties to it. Care must be taken that there be [360] no variance. With respect to the date, if the plt. declare upon

a deed as dated on a particular day, it shall always be intended it was delivered at that time, and no other; and if, in pleading, he afterwards state or confess it to have been delivered at any other time, it is a departure from the declaration. Where the plt. declared upon an agreement in a charter-party, dated the 9th of October, to pay for the corn which then was or afterwards should be laden on board the ship, and alleged that, upon the said 9th of October, the ship was laden with sixty lasts of corn, for which the deft. had not paid, the deft. pleaded that the deed was sealed and delivered the 28th of October, and that there was not any corn then or afterwards laden on board, with a traverse of the delivery, on the 9th of October, or at any time afterwards before the 28th; and, on demurrer, the plea was holden good, the word then being referable to the time when the deed takes effect by delivery, and not to

the date: Oshey v. Hicks, Cro. J. 263; see 3 Lev. 348. After the statement of the charty-party, the plt. must aver the performance of every act which constituted a condition precedent; and, as to what constitutes such condition, see 3 Chit. C. L. 391, Abbott; Card v. Hope, 2 B. & C. 564; Ripley v. Scaife, 5 B. & C. 167. If the performance of such condition be rendered impossible by deft.'s act, or by some other lawful excuse, the same should be stated: ante, 127, 9. After the statement of the performance of, or excuse for performance of, the conditions precedent, the breach is stated. As to declaring for a penalty, see ante, 136. If it be requisite, different counts should be added to meet the doubtful point. The observations as to a declaration in assumpsit, in general, will apply to the necessity and mode of making the above averments: see ante, 111 to 136. The common indebitatus counts will sometimes be useful; see "Freight," "Demurrage," &c.

In an action to recover freight or demurrage, or other thing claimed in pursuance of a charter-party by deed, the declaration must be specially framed on the deed itself: Atty v. Parish, 1 N. R. 104; sed quære of this decision, as to an action brought by and against the parties to the deed, whether the declaration may not be framed in debt generally, and the deed given in evidence on a demand for freight or demurrage: see Abbott on Ship. 164, n. d.; Tilson v. Warwick Gas-Light Co., 4 B. & C. 968. As to the statement of the date of the deed, supra. As to the mode of declaring in debt or covenant in general, see post, "Covenant," "Debt."

Plea.] The rules as to the plea are the same as in other cases. See "Assumpsit," "Debt," " Covenant," and the various titles of defence throughout the work.

Where the deft. relies on a discharge from his covenant, he must plead it specially, unless the form of action be assumpsit, in which case he may give the fact in evidence under the general issue: see Cro. Car. 383. Where the covenants in a charter-party are mutual and reciprocal, the breach of one covenant cannot be pleaded in bar to an action upon another: Cole v. Shallet, 3 Lev. 41; T. Jones, 416. But a contrary rule holds where the cause of action is nullified by the non-performance of the act disclosed by the deft.'s plea: Sty. 186. A plea to an action on a charter-party, alleging a custom which would enure as a bar to the action, is, however, bad: Gibbon v. Yony, 8 Taunt. 254.

Precedents.

The forms of declarations on charter-parties varying so much, on account of the breach complained of, and being of such length, none are here given. See form of de[*361] claration in assumpsit on, by owner against freighter, *for not loading, and for

demurrage, 2 Chit. Pl. 221; debt on, for penalty for not loading cargo, and for freight, ib., 426; covenant on, for freighting demurrage, ib., 528; covenant on for not loading in time, and not paying pilotage, ib., 531; covenant on, by freighter against owner, with special damage: ib., 533.

See several forms of pleas, and in debt and covenant, denying the breaches, and pleading non-performance of a condition precedent.

Evidence for Plaintiff.

The evidence to be adduced must necessarily depend upon the issue

taken by the pleadings. In assumpsit, all the material averments in the declaration must be proved, under the plea of the general issue. In debt on covenant on a charter-party by deed, only those expressly put in issue by the pleadings need be proved.

Evidence cannot be adduced to control or vary the particular covenants in a charter-party. Therefore, where the ship was chartered to wait for convoy at Portsmouth, Lord Kenyon would not suffer a parol agreement to be set up on the other side, to substitute Corunna for Portsmouth Leslie v. La Torre, cited 12 East, 583. And this doctrine was sustained by the court of King's Bench in the case of White v. Parkins, 12 East, 578, though they held that it did not apply to that particular case. The terms of the charter-party may he explained by usage: Gibbon v. Yony, 2 Moo. 224, s. c.; 8 Taunt. 254,

Proof that the ship was not complete, and prepared with every thing to fulfil the voyage, would render the owners liable on the covenant for seaworthiness, &c.: 2 Holt, Ship. 77; Shields v. Davis, 6 Taunt. 65; Davidson v. Gwynne, 12 East, 381; Coggs v. Barnard, 2 Ld. Raym. 909. But, to constitute a breach of seaworthiness, &c., it must be proved the ship was so at the time of her departure, Eden v. Parkinson, Doug. 732; though, indeed, this would in general be presumed, where the ship became leaky during the course of the voyage, from no particular cause, and especially if it became so very shortly after the commencement of the voyage: Park. 333; 2 Dow, 233.

In an action for the improper manner of stowing, lading, &c., the cargo, evidence of the usage and custom of the place where it is stowed, laden, &c., is admissible, where there is no express stipulation as to mode of stowage, lading, &c., 2 Holt, 86, Cobban v. Down, 5 Esp. Rep. 41; and, as to the master's and owner's duties in this respect, see 3 Chit. C. 393; Abbott on Ship. 90. When the course of the ship on the voyage comes in question, and the same is not pointed out by the charter-party, it will be a question for a jury to decide on: Abbott, 4 Camp. 112. In an action for improper conduct in delivery of the cargo, evidence of the custom and usage of particular places and trades is admissible, in the absence of an express stipulation on the question: Abbott, 260; 2 Esp. Rep. 603; 4 T. R. 260; 5 T. R. 397; Pea. Rep. 150.

Damages.] These must depend on the facts of the case: see "Damages," ante, 149. Where a jury, in an action on a charter-party, assesses damages generally, the court will not allow interest, though the demand arises for special as well as unliquidated damages: Martin v. Emmote, 8 Taunt. 530. As to damages where there is a penalty declared on or not, ante, 136. As to when the owner is entitled to the whole freight, though there be a deviation and breach of the charterparty, and the merchant is driven to his remedy for damages to crossaction, see 1 Camp. 377, 4 Camp. 112, 10 East, 555, 295, 12 East,

381.

Evidence for Defendant.

[*362]

The main burden of evidence, as we have seen, lies on the plt., and all deft. will have to do will be to rebut the same, either by the cross-examination of plt.'s witnesses or from fresh evidence adduced by himself.

COMMON, ACTIONS FOR INJURY TO.

FORM OF REMEDY.-By the Lord, 362.-By the Commoner, 362-3. FORM OF PLEADINGS.-Declaration, 364 to 367.—Plea, 367.

PRECEDENTS.

Declaration for Disturbance of Common, 367.

EVIDENCE FOR PLAINTIFF, 369.

EVIDENCE FOR DEFENDANT, 371.

Form of Remedy.

Remedy by the Lord.] If he be disseised, he may have recourse to the action of ejectment: Addms, Eject. 28. The same action lies for the owner of wastes, not being lord of any manor. When the lord is disturbed on his soil, by persons having no colour of right, or has his waste surcharged by his tenants; as, where a man, having no right whatever, to enter on the lord's waste, puts his cattle there; or, where one, having a right, puts in cattle which are not commonable, as hogs, goats, &c.; or strangers come upon the soil, and take away wood; or, where the commoner surcharges, or puts more cattle on the waste than the pasture or herbage will sustain, or than he has a right to place there. For these disturbances the lord may have a writ of quo jure, an action of trespass, or a special action on the case: 3 Bl. Com. 237. He has also, on some occasions, a remedy by distress, in cases of surcharge, and by writ of admeasurement; and he may maintain an action for any trivial trespass, because of the entry and trespass, ib. 9 Rep. 113; unlike to the commoner, who can only proceed when his profit is diminished: ib. It is not necessary that the owner of the soil should actually be in possession, in order to enable him to maintain an action: Queen's Col. Oxf. v. Hallett, 14 East, 489. As to the lord's power to distrain, he may take the beasts of a stranger, damage feasant, on his waste in this manner: 3 Lev. 41; 1 Saund. 346, n.; 2 Saund. 328. And, where the number of beasts which a commoner may depasture is limited, the lord may distrain a surplusage: 1 Rol. Ab. 665. And, in a case of surcharge by a commoner, having a right for beasts levant and couchant, it was held, that the lord might distrain: Freem. 273. If, in making a distress, the lord chose the commoner's, in order to separate them from those of a stranger, which he is about to impound, it has been held, that he shall not be answerable in damages at the suit of the commoner, but he may justify such act in pleading to an action of trespass: 3 Lev. 40.

Remedy by the Commoner for a Disseisin.] The commoner being seised, is in a situation to proceed against all parties who molest him in the enjoyment of his rights. Where he is ousted from an appendant or appurtenant common, whether of pasture, estovers, &c., his remedies are

by an assise of novel disseisin, 5 Rep. 25; but this remedy, [*363] where the *mischief has occurred within twenty years, is now superseded by an action of ejectment: Newman v. Holdmyfast, Str. 54. A right of common is also frequently tried through the contrivance of a feigned issue.

For disturbances of common, in the nature of a disseisin, such as overstocking the waste, &c., and if any damage or annoyance whatever take