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![handle is hein.slavery/ssactsengr0192 and id is 1 raw text is: FOTHERGILL 1'. WALTON
that the clerk of the peace, to whom the security is to be given by the contractor, and
who is to be reimbursed out of the county rate, is the party who is to sue or be sued.
It would be a breach of all legal principle, public policy, anud justice, to hold that this
action is well brought against these Defendants.
Judgment for the Defendants.
FOTHERGILL V. WALTON AND ANOTHER. Nov. 18, 1818.
[S. C. 2 Moore, 630.]
By charter-party between the ship-owner and freighters, the ship-owner covenanted.to
take on board six pipes of brandy at Havre, and therewith proceed to Terciera, and
there take on board a complete cargo of fruit or other goods, as the freighters
might think fit, and proceed to London or Bristol, as might be ordered by the
freighters, and there make a right and true delivery of the fruit, &c. ; and the
freighters covenanted to pay certain freight for the fruit and the brandy, the freight
of brandy, &c. to be taken out in fruit at Terciera, and guaranteed the ship a full
cargo home: Held, that the covenant to take the brandy to Terciera was not a
condition precedent, but a distinct and independent covenant. And, therefore, the
owner, in an action of covenant on the charter-party against the freighters for not
putting a full cargo of fruit on board at Terciera, having averred general perform-
ance, the declaration was held good on demurrer.
Covenant on a charter-party of affreightment, dated 28th November, 1816, between
the Plaintiff, (ship's husband of the Elizabeth,) then lying at the port of Havre de
Grace, in France, of the one part, and the Defendants, merchants and freighters of the
said ship, of the other part; whereby it was witnessed, that the Plaintiff had letten,
and that the Defendants had hired and taken the ship Elizabeth, to freight, upon
the terms and conditions thereinafter mentioned ; viz. the Plaintiff-covenanted with
the Defendants, that the ship being staunch, &c. should take on board six pipes of
brandy of good quality, with such other goods as the captain might procure on freight,
and therewith proceed with all possible dispatch to the island of Terciera, and, either
at the said island, or the island of St. Michael, [5771 as might be ordered by the
Defendants or their agents, the master to take, load, and receive on board a complete
cargo of green fruit in boxes, or such other lawful goods and merchandize, as the
Defendants or their agents might think fit to send alongside, not exceeding what he
could reasonably stow and carry over and above her tackle, &c. ; and being so loaded
and dispatched, the said master should immediately depart with the ship and cargo on
board, and proceed with all possible dispatch into that port of London or into the port
of Bristol, as might be ordered by the Defendants or their agents ; and at such ordered
port or place of discharge, after giving due notice, should make a right and true
delivery of all the fruit, or other lawful goods or merchandize, thus to be loaded on
board her, agreeably to bill or bills of lading that might be regularly signed for the
same, (the act of God, &c. &c. excepted). And the Plaintiff also covenanted, promised,
and agreed with the Defendants, that for and during her homeward bound voyage, the
said ship should be ballasted with stones or shingles, and not with sand, and the boxes
to be stowed according to custom ; and also, that the said ship should, on her home-
ward voyage, if required, call at Falmouth for the purpose of receiving orders from
the Defendants or their agents; and furthermore, that for the purpose of loading the
ship at the island of Terciera or the island of St. Michael, and discharging at her
ordered port of discharge, the ship should stay and lie 25 running days in the whole,
if required ; the said running (lays to commence immediately on arrival in a proper
place to discharge and receive her cargo. In consideration of the completion of the
said voyage, the Defendants or their agents agreed to pay, or cause to be paid to the
Plaintiff, his executors, &c. the sum of 61. for every ton of 20 boxes, London size, or
any quantity [578] less than a ton, together with ten guineas gratuity to the captain,
and five guineas more in case of completing the passage from the island in which he
received his cargo, in less than 18 days, and average according to the custom of the
sea, should any accrue ; provided that it should be lawful for the Defendants or their
agents to keep the ship on demurrage 10 running days, at the rate of four guineas a
day, to be paid day by day as the same might grow due. The Plaintiff engaged to
508
8 TAUNT. 577.](ViewImageLocal?handle=hein.slavery/ssactsengr0192&div=1&collection=&method=preview&ext=.png&size=3)