
    Stone & Co. v. Patterson.
    [April, 1806.]
    Pleading- — Charter Party — Suit to Recover Value of Captured Vessel — Declaration—Allegations.—If the freighter stipulates to pay $13,000 as the agreed value of the ship, in case of her being captured and condemned; in a suit upon the charter party, the declaration should shew where, when, and by whom, she was captured, and that the court which condemned her had jurisdiction.
    Same — Declaration—Right to Plead and Demur to — The defendant may, under the act of assembly,plead and demur to the whole declaration.
    This is an appeal from a judgment of the district court of Suffolk, given in fa-vour of the defendant, in an action of debt, brought by Stone & Co. against Patterson.
    The declaration, as amended, is in debitor 13,000 dollars. It recites, that on the 27th of May, 1796, the plaintiffs, *in behalf of the ship Argo, and the defendant, entered into a charter party of affreightment, which is recited at large, and by which the plaintiffs stipulate to have the said ship fitted for sea, and supplied with all things needful, for a voyage to Cape Nicholas Mole, to which place she is to proceed, with a cargo of horses, to be put on board by the defendant, who is to pay a stipulated freight, and in case of capture and condemnation of the said ship, he is to pay the plaintiffs 13,000 dollars, within the time usually required to recover insurances. There are other covenants not material in this case, and the parties bind themselves for performance, in the penalty of 10,000 dollars.
    The declaration avers performance on the part of the plaintiffs, and that the ship in the course of the .voyage was captured and condemned in the court of the commission appointed by the French government for the leeward islands, that the time usually required to recover insurances had expired; and that the defendant became liable to pay the 13,000 dollars, but had refused, &c.
    The defendant demurs specially:
    1st. Because debt cannot be supported for 13,000 dollars, the parties having bound themselves in the penalty of 10,000 dollars only.
    2d. Because covenant and not debt is the proper action.
    3d. Because the declaration does not set forth when or by whom the ship was captured, or when or where she was condemned.
    The defendant also pleads:
    1st. That the plaintiffs did not cause the said ship to be equipped and supplied with all things needful for the voyage, by reason of which neglect the ship was captured and condemned.
    2d. That they did not, &c. but neglected ,to supply the said ship with a sea letter, or passport, by reason, &c.
    3d. That the said ship belonged to American citizens; that the plaintiffs did not, &c. but neglected to furnish her *with a sea letter, or passport, expressing the name, property and bulk of the ship, and the name and place of habitation of the master, agreeably to the 25th article of the treaty of amity with France, concluded on the 6th February, 1778; by reason, &c. the said ship was captured by a vessel belonging to the French republic, and condemned, &c.
    4th. The defendant pleads covenants performed.
    The plaintiffs join in demurrer; and demur specially to the three first pleas and take issue on the 4th.
    The causes of demurrer to the 1st plea, are,
    1st. That it is uncertain in stating wherein the plaintiffs did not cause the ship to be equipped or supplied, or state the neglect, by reason of which she was captured, &c.
    2d. Because it amounts to the general issue.
    3d. Because the defendant has his remedy by cross action, if the plaintiffs neglected to have the ship supplied, &c.
    4th. Because the defendant has no right to plead and demur to the same declaration.
    To the 2d plea the 3d and 4th causes of demurrer to the 1st plea are again assigned as causes of demurrer; and the 3d cause is, that it does not appear that it was needful to supply the said ship with a sea letter, or passport.
    To the 3d plea, the 3d and 4th clauses of demurrer to the 1st plea are again assigned, and the 3d cause of demurrer to the 2d plea is also assigned.
    A 4th cause of demurrer is, that the plaintiffs have not by their charter party warranted the ship to be American property; and,
    5th. That the defendant is estopped from saying, that she is American property, he having covenanted to pay 13,000 dollars, on her capture and condemnation.
    Judgment was given for the defendant on his demurrer; and the plaintiff appealed to the court of appeals.
    Play, for the appellant.
    The action is properly conceived, as debt lies for any thing certain. 1 Esp. 172; 3 Black. Com.
    154; 2 Bac. 20; 3 Bac. 523; 2 Stra. 1089; 4 Vin. *Ab. 376. This is not affected by the doctrine in 4 Burr. 2228; because there is an express stipulation for a given sum; and that constitutes debt. The breaches are assigned' with sufficient certainty; for they may be assigned in the words of the covenant. The defendant could not plead, and demur, to the same declaration. 5 Bac. 119. The plea of mutual covenants ought not to avail the defendant, as he might have brought his cross action.
    Call, contra.
    The uniting of the demurrer faith the pleas does not prejudice the defence. For either the demurrer is not a plea, or it is. If the first, then the plea overrules the demurrer; because .a demurrer is an excuse for not pleading, 5 Bac. Ab. 458: and, after having pleaded, it would be absurd to object to pleading. 1 How. Exch. 754; 16 Vin. Ab. 376. Hence it is, that a demurrer cannot be received after a plea and issue, Barnes, 84; because it would be trifling to say, that he ought not to plead, after he had actually pleaded. If the second, then it was allowable under the act of'assembly. Pleas Edi. 80. For that permits the defendant to plead “as many several matters, whether of law or fact, as he shall think necessary.” Which necessarily allows him to mingle them as he pleases. Besides a demurrer is an issue in law, 3 Black. Com. 314; and there is no other manner of pleading a matter of law, than by demurrer; for, according to lord Coke, the demurrant abides .upon the law, and says that the matter shewn is not sufficient in law, Co. Litt. 71; which is, in fact, to say, that the law is against the opposite party; and. therefore, in some books the demurrer is called a plea. 1 Ed. Raym. 22. That this is conformable to the will of the legislature, is proved by the difference between the present act, and that of 1748; for that restricted the plea and demurrer to separate parts; but this leaves them indefinite. There is a wide difference between the English statute, and our act of assembly ; for there the additional plea cannot be put in without leave of the court, which gives them discretion with "'regard to it; but here it is matter of right, and the court can exercise no
    control. The reason why double pleading was originally refused was, that the jury might not be perplexed with multifarious matter: But that inconvenience is avoided, when the demurrer and the pleas are kept separate and distinct for different tribunals. The declaration ought to have shewn the cause for which the vessel was captured; and that she was condemned by a court of competent jurisdiction; for that is necessarily implied in the contract; and, without an averment to that effect, the plaintiff cannot recover. 1 T. Rep. 674, 676; 5 Com. Dig. 356.
    Wickham, on the same»side.
    The declaration is insufficient for want of the proper averments. If there be a covenant for quiet enjoyment, it is not sufficient for the plaintiff to say, that he did not quietly enjoy. 4 T. Rep. 617. The defendant is an underwriter of the vessel against capture, and is not chargeable under the generality of this declaration. 2 Marsh. Ins. 587, 588. The time of the capture ought to have been stated, and the omission is fatal on demurrer; especially as it might be important that the defendant should be apprized of it. The declaration ought, also, to have stated by whom the vessel was captured; for she might have been captured by one nation, and drifted into another, as a droit d’admiraltie. The place where the court of condemnation sat, ought likewise to have been stated, that its authority might have been ascertained. The Leeward Islands is an equivocal expression, as it might have meant Dutch, English, or Drench; and it has been held that a condemnation by a Drench court, sitting out of the territories of Drance, is not binding. If, however, the court should be of opinion, that the declaration contains a good cause of action, then the suit should have been sent back to the district court in order to have the pleas disposed of. But the defendant has a right to plead and demur together; for the act of assembly allows it, as the demurrer is a plea ; and, therefore, not only may the ■ defendant demur after a rule to *plecb but it is the constant practice to allow a demurrer to be filed, instead of a plea, upon setting aside an office judgment.
    Randolph, on the same side.
    Covenant, and not debt, was the proper action. But if the plaintiff chose to bring debt, he ought, at least, to have sued for the penalty, and not for the $13,000. 2 Burr. 2228. The declaration ought to have stated the time, the place, the manner and the person by whom the capture was made. 5 Com. Dig. 354. It cannot be presumed that the vessel was captured by the Drench; because we are at peace with that nation. The pleas and demurrer might be joined; for the act of assembly extends the former right of pleading and demurring to the separate parts, to the right of pleading and demurring to the whole declaration.
    Hay, in reply.
    It was not in the power of the plaintiff to state the court where the condemnation was made, with more precision: nor was it necessary; for, to every reasonable purpose, it was certain enough already: and the jurisdiction is fairly inferrable from what is said. The plaintiff was not bound to sue for the penalty, but might maintain an action of debt for the $13,000; because it was a specific sum, and debt lies for any specific sum due from one man to another.
    Cur. adv. vult.
    
      
       Common Carriers. — See monographic note on “Common Carriers” appended to Farish v. Reigle, 11 Gratt. 697.
    
    
      
       IPIeading and Practice. — The principal case is cited In Waller v. Ellis, 2 Munf. 97, 102.
    
   LYONS, President,

delivered the resolution of the court, that the judgment was to be affirmed for the third reason mentioned in the defendant’s demurrer to the declaration, that is to say, That it did not set forth when or by whom the ship was captured; or when, or where, she was condemned.  