SEPARATE MAINTENANCE. And that wife rate, &c. ON DEEDS OF his executors, administrators and assigns, that the defendant, his executors and administrators, should and would, during such time as the said I. J. should live separate and apart from the defendant, pay unto the plaintiff the sum of £500 yearly and every year, and in like proportion for any lesser time than a year, for and towards the support and maintenance of the said 1. J. And that it should and might be lawful for the said I. J. at all times might live sepa- thereafter, at her own free will and pleasure, to live separate and apart from the defendant, as if the said I. J. was sole and unmarried, free from the power, command, restraint, and control of the defendant, at such place and in such manner as she should think proper; and in and by the said indenture it was provided, that the cohabitation of the said I. J. at any time with the defendant should not be considered as a relinquishment on the part of the plaintiff and I. J., or either of them, of their right to the performance of the covenants and agreements on the part of the defendant, his executors and administrators, therein contained, nor in any respect prejudice, annul, or make void such covenants or agreements, or either of them, but the same should, notwithstanding such cohabitation at any time, be and remain in full force and effect, any thing therein contained to the contrary in anywise notwithstanding, as in and by the said indenture, reference being thereunto had, will, amongst other things, more fully and at large appear. And the plaintiff in fact says, that afterwards, and after the making of the said indenture, to wit, on the of the said I. J. in the said indenture mentioned, did choose, and was willing, and did actually live separate from the defendant, her said husband, and for a long space of time, to wit, from thence hitherto hath continued, and still doth continue, to live separate and apart from the defendant, her said husband. And although, from the neral perform- time of making the said indenture hitherto, the plaintiff hath, &c. [Plaintiff's general performance of the indenture.] Yet the said plaintiff in fact saith, that arrear of annual &c. [State the arrear, and general conclusion, as in declaration in covenant payment. for rent, post 393.] Reference to indenture. Averment that the wife hath lived separate. Plaintiff's ge ance. Breach and A. D. IV. ON DEED OF INDEMNITY. Declaration by IV. ON DEED OF INDEMNITY. See 5 Bar.& Adol. 78. admininistrator on deed of indemnity, for not indemnifying intestate against payment of annuity granted to third person. V. ON CHARTER PARTIES. By owner against freighter, on a freight and V. ON CHARTER-PARTIES. For that whereas heretofore, to wit, on &c., by a certain charter-party of affreightment then indented, made and concluded between the plaintiff, by the name and description of &c., master of the good brig or vessel called &c., (q) See other forms by master or owner, 3 Wentw. 341, 344, 350, 352, 355, 358, 362, 364, 372: Plead. Assist. 324. For forms at the suit of the freighter, see 3 Wentw. 357; and forms in Assumpsit, ante, 161; and in Debt, ante, 308. When the contract is under seal, the declaration must, in general, be framed upon it, and state the terms of the deed; see 1 N. R. 104; Abbott on Shipping, 4th edit. 185; 1 M. & Sel. 573; 2 M. & Sel. 303; when the plaintiff should not sue on the charter-party, see 3 Chit. Com. Law. 430; 2 Chit. Rep. 570; 4 Campb. 131; 12 East, 179; 2 Campb. 616; 6 J. B. Moore, 415, 425. As to demurrage, see Abbott, 196; Chit. Com. Law, 426; ante, 51. When not ON CHARTER PARTIES. voyage, receives arrives, and delivers outward of the burthen of tons (r) per register, or thereabouts, then riding in the river Thames, of the one part, and the defendant, by the name and addition of &c. merchant, and freighter of the said vessel, of the other part, (one part of which said charter-party, sealed with the seal of the defendant, the plaintiff now brings here into Court, the date whereof is the same day and year aforesaid,) it was witnessed that the plaintiff, for the considerations thereinafter mentioned, did thereby covenant, promise, and agree to and with the defendant, his executors, administrators, and assigns, that the said vessel being tight, staunch, and strong, &c. [here set out the charter-party verbatim, in the proper tense,] as by the said charter-party, reference being thereunto had, will, amongst other things, more fully and at large appear. And the plaintiff in fact saith, that afterwards, to wit, on &c., the said vessel Ship being being then tight, staunch, and strong, and every way properly fitted and made fit for manned for the voyage in the said charter-party mentioned, the said master cargo, sails, did then take, load and receive, on board of the said vessel, a full and complete cargo of lawful goods, which having received, and being despatched, cargo. did then, wind and weather permitting, immediately set sail and proceed to the island of Heligoland, where, being afterwards, to wit, on &c., arrived, did then make a right and true delivery of the whole of the said cargo to the agents or assigns of the said freighter, agreeably to bills of lading that were signed for the same aforesaid, which cargo being then so delivered, the said master of the said vessel did afterwards, to wit, on &c. take on board the said vessel another full and complete cargo of lawful goods, not exceeding what she could reasonably carry and stow, and being so laden and despatched as last aforesaid, the said vessel did afterwards, to wit, on &c., set sail and proceed direct from thence to London, where, being afterwards, to wit, on &c. arrived, she did then make a right and true delivery of the whole of the said homeward cargo to the defendant or his agents, agreeably to bills of lading that were signed for the same, and so ended the said voyage, according to the form and effect of the aforesaid charter-party, of fendant. which said several premises the defendant then had notice. And although General perthe plaintiff hath always, since the making of the said charter-party, well formance by plaintiff. and truly performed, fulfilled, and kept all things in the said charter-party contained on his part and behalf to be performed, fulfilled, and kept, Yet the defendant did not nor would send, or cause to be sent, alongside of the said vessel in the river Thames, such goods as he thought proper to ship, and receive the same from alongside of her at Heligoland, and sent alongside of her at Heligoland such goods as he thought fit, and receive the same from alongside of her at London, within the time limited for those purposes, and days of demurrage in the said charter-party mentioned, but wholly refused and neglected so to do, and, on the contrary, kept and detained the said vessel for a much longer space of time, to wit, the space of ten days, over and above the time limited for the purpose last aforesaid, and the days recoverable, as in case of hostile occupation of the port to which the ship is bound, 10 East, 526; 3 Chit. Com. Law, 429. As to what is a condition precedent in a charterparty, and what need not be averred, see 4 East, 477; 2 Chit. Rep. 705; 3 Chit. Com. Law, 391; Glaholm v. Hays, 2 M. & Gr. 257. See a form of declaration against master of a ship for not sailing in ballast direct (r) The owner may give evidence of actual Ship takes in homeward cargo, arrives, and delivers same. Notice to de First breach, not shipping in within prescribed lay due time, and days. ON CHARTER PARTIES. Second breach, non-payment of freight by bills of exchange. Third breach, non-payment of demurrage. Another form of declaration for not loading in lay days, and non-payment of pilotage. of demurrage aforesaid, contrary to the form and effect of the said charterparty, and of the said covenant of the defendant. And the plaintiff further saith, that on delivery of the said homeward cargo at London as aforesaid, to wit, on &c., a large sum of money, to wit, as well the sum of £— in the said charter-party mentioned, as another sum of money, to wit, the sum of £——, being £5 per centum on the amount of the freight aforesaid, in lieu of port charges, and two guineas hat money to the master, amounting ing in the whole to a large sum of money, to wit, the sum of £, became and was due and payable from the defendant to the plaintiff, according to the form and effect of the said charter-party and of the said covenant of the defendant so by him made as aforesaid, Yet the defendant did not nor would (although often requested so to do) pay to the plaintiff the said sum of money last-mentioned in manner directed by the said charter-party, to wit, the sum of £, being one half in money, or any part thereof, on the delivery of the homeward bound cargo at London as aforesaid, or before or since, nor did or would pay the other half, or any part thereof, by the defendant's accepted bill, payable in London aforesaid, at two months after the date of the said delivery of the said homeward cargo, or otherwise however, but wholly refused and neglected so to do, contrary to the form and effect of the said charter-party and of the said covenant of the defendant, and the said sum of £- is still in arrear and unpaid. And the plaintiff further saith, that the defendant did keep the said vessel on demurrage during divers, to wit, days (s) over and above the said lay days in the said charterparty mentioned; yet the defendant did not nor would (although often requested) pay for the said days to the plaintiff the said sum of £per day, day by day, as the same became due and payable, according to the tenor and effect of the said charter-party, but wholly refused so to do; and the sum of £- for the said last-mentioned days, at and after the rate aforesaid, became and was due and owing from the defendant to the plaintiff, and still is in arrear and unpaid, contrary to the form and effect of the said charter-party and of the said covenant of the defendant. And so the plaintiff saith. [Common conclusion in covenant, as ante, 371. For that whereas heretofore, to wit, on &c., by a certain charter-party of affreightment, then indented, made, concluded, and fully agreed upon between the plaintiff of the one part and the defendant of the other part, (one part of which said charter-party, sealed with the seal of the defendant, the plaintiff now brings here into Court, the date whereof is the same day and year aforesaid,) it was witnessed that the plaintiff, for the considerations therein and hereinafter mentioned, had granted, &c. [Here set out the charter-party.] As by the said charter-party of affreightment (reference being thereunto had) will (amongst other things) more fully and at large Averments of appear. And the plaintiff in fact saith, that after the making of the said performance on charter-party of affreightment, and before the said 20th day of June in the plaintiff's part. year aforesaid, to wit, on &c., the said brigantine being tight, staunch and strong, and well and sufficiently manned, victualled, tackled, and provided with all things necessary and proper for the said vessel for her said intended voyage, did set sail and depart from the river Thames aforesaid, and pro Reference to charter-party. (s) As to the construction of the word "days,” see 3 Chit. Commercial Law, 426, and next note. PARTIES. ceed direct to the town of Riga aforesaid, and afterwards, to wit, on &c. did ON CHARTERarrive at the said town of Riga, and was then ready to take on board and load from the factors or assigns of the defendant the said 1000 quarters of wheat in bulk, separate from the other part of the cargo, according to the form and effect of the said charter-party of affreightment in that behalf, and the said master did then give notice thereof to the correspondents of the defendant; and for the purpose of loading the same 1000 quarters of wheat at Riga aforesaid, the said brigantine did stay and lie there the aforesaid thirty-five running days, (t) commencing the next day following that on which the said master did so give notice to the correspondents of the defendant as aforesaid, and was during all that time ready to take on board and load, from the factors or assigns of the defendant, the said 1000 quarters of wheat in bulk as aforesaid, of all which premises the defendant then had notice; and although the plaintiff hath always, from the time of making the said charter-party of affreightment, hitherto well and duly performed, &c. [General performance by plaintiff of the charter-party, as ante, 377,] the plaintiff saith, that the defendant (although often requested so to do) did not nor would, within the said space of thirtyfive running days, or at any time afterwards, load, or cause to be loaded, the said 1000 quarters of wheat on board the said brigantine at the town of Riga aforesaid, but wholly neglected and refused so to do, and therein failed and made default, contrary to the form and effect of the said charter-party and of the said covenant of the defendant by him in that behalf made as aforesaid. And the plaintiff in fact saith, that the pilotage and port-charges in the said charty-party of affreightment mentioned amounted to a large sum of money, to wit, the sum of £, whereof the defendant afterwards, to wit, on &c. had notice; nevertheless the defendant (although often requested so to do) hath not paid or cause to be paid to the said master or his order two-thirds of the said pilotage and port-charges, or any part thereof, but hath hitherto wholly neglected and refused so to do, and therein failed and made default, and the same and every part thereof still remains due and unpaid to the plaintiff, contrary to the form and effect of the said charter-party of affreightment and of the said covenant of the defendant by him in that behalf made as aforesaid, and so the plaintiff in fact saith &c. [Conclude as ante, 371. against the part perform For that whereas heretofore, to wit, on &c. by a certain charter-party of By the freighter affreightment then made, concluded, and fully agreed upon between the defendant therein described, and being the sole owner of the good ship or vessel called &c. and of the burthen of tons or thereabouts, (of which E. F. was master,) of the one part, and the plaintiff of the other part, (one ance of the part of which said charter-party of affreightment, sealed with the seal of covenants, and the defendant, the plaintiff now brings here into Court, the date whereof is the same day and year aforesaid,) it was witnessed (amongst other things) cial damage. (u) that the defendant, for the considerations thereinafter mentioned, had When the word "days" is used alone, it is said to mean working days by the custom of merchants in London; 3 Esp. Ni. Pri. Cas. 121; Abbott, 4th edit. 194; see 3 Chit. Com. Law, 426; but in the absence of any custom, Sundays are computed in the calcu lation; Brown v. Johnson, 10 M. & W. 331. (u) See other precedents referred to, ante, 376, note (g). How far freighter may sue in action on the case where there has been a charter-party, see 6 J. B. Moore, 415, 425. breach as to re The defendant covenants that port and there &c. ON CHARTER granted and to freight letten, and by the said charter-party did grant and PARTIES. to freight let, unto the plaintiff, his executors, administrators and assigns, all that the said ship or vessel, and the whole use and benefit of the tonnage, stowage, and burthen thereof, with the use of her boats and appurtenances, (the master and mariners' customary privileges of the cabin, gun-decks, and steerage only excepted.) And the plaintiff had accordingly hired the same for the voyage therein and hereinafter mentioned, and therefore the defendthe ship should ant did thereby, for himself, his executors and administrators, covenant, be ready and promise and agree to and with the plaintiff, his executors, administrators and provided, &c. and should pro- assigns, (amongst other things,) that the said ship should be made ready and ceed to a named provided in all respects for such a voyage; that the said ship's crew should receive a cargo, consist of men and boys, exclusive of the master; and that she should be got about to the port of &c. as soon as possible, where the master thereof should take into and on board of her all such goods, wares and merchandize, not exceeding her burthen, as the plaintiff, his factors or agents should think fit to load or tender to be put on board thereof, (contraband goods only excepted,) and should therewith, with all possible despatch, without convoy, proceed with her outwards to the port of &c. as aforesaid, to &c. and from thence to and should then discharge and diliver the same to such person or persons as the plaintiff, his factors or agents should direct; which done, the said charter-party should be considered to be performed; as by the said charter-party, reference being thereunto had, will, amongst other things, more fully and at large appear. And the plaintiff saith, that after the making of the said charter-party, to wit, on &c. the said ship or vessel, called &c. in the said charter-party mentioned, had been and was arrived, and that the said E. F. so being master thereof, did then take into and on board of the said ship or vessel, of and from the plaintiff, a certain cargo of goods, wares and merchandize, to be carried and conveyed therein from &c. aforesaid, to &c. aforesaid. And the plaintiff further saith, that the said E. F. so being master of the said ship or vessel as aforesaid, was then, to wit, on &c. ordered and directed by the plaintiff to proceed accordingly with the said ship or vessel and the said cargo on board thereof, from &c. aforesaid, to &c. aforesaid, and to land the said cargo, and to take another cargo on board of the said ship or vessel, that is to say, to receive wines on board thereof, to the address of the plaintiff and divers other persons; and that when the said E. F. should have completed his loading at &c. he was to proceed from thence to in the West Indies, and there, to wit, at &c. to deliver to certain persons there, carrying on trade and commerce by and under the name, style and firm of &c. all the goods to the address of the plaintiff, and also his, the said E. F.'s bills of lading, that they might receive the freight there. And the plaintiff further saith, that the said E. F. master of the ship or vessel as aforesaid, having received the orders and directions aforesaid, afterwards, to wit, on &c. set sail and proceeded accordingly with the said ship or vessel, and the said cargo on board thereof, from the port of &c. aforesaid, to &c. aforesaid, and afterwards, to wit, on &c. arrived at &c. aforesaid, and there landed the said first-mentioned cargo, except a certain box of muslins part thereof, and that the said E. F. so being master of the said ship or vessel as aforesaid, did there take and receive on board thereof divers, to wit, pipes of wine, being part of the cargo which he was so ordered and directed to take on board of the said ship as |