Bello v. Briard

1 N.C. 225

Opinion

DEBT against Briard, on a charter party between Briard, owner of a vessel, and Hill on the one part, and the plaintiff on the other, on a covenant that the owner should go to such a port in Spain, (except two ports which they named) as they should appoint, and they appointed to fail to such a port, which he refused. Issue was taken on the refusal, and it was found for the plaintiff. Now it was, moved in arrest of judgment.

1. The declaration is on a charter party between Briard apd Hill, of the one part, and it is shewn that Briard did not perform; while he ought to have declared that neither Briard nor Hill did perform. For if Hill did perform, it is sufficient. As in debt against an executor, the declaration ought to be that neither the executor nor the testator, &c. 9 Rep. 108. Tresham’s case. But this was overruled on the authority of Cloberry’s case.

2. They ought to shew that the place appointed was not one of those excepted. 8 E. 4. 7. Sed non allocatur: for this shall not be intended. Intrat. T. 3 Car. rot. 1038.