Smith, 390; Holmes v. Pavenstedt, 5 Sandf. 97. And the charterers' right of possession may be lost by a voluntary surrender to the owners: Bergen V. Tamined, 40 Hunt's Merch. Mag. 708.

14. Power of Master.-The master of the vessel may make a charter party, where the owner has no agent in a foreign port, for the benefit of the owner, but not to give a creditor of the owner a security of the debt due to him: Hurry v. Hurry, 2 Wash. C. Ct. 145.

15. Refusal to Overload.-Although the charter party lets the entire capacity of the vessel, if the goods put on board are heavy articles, and before the ship is full, sink her as low as is usual and proper without extra danger, the owners or master of the vessel do not, by refusal to take more, violate the charter party: Weston v. Minot, 3 Woodb. & Mo. 436.

16. Repairs of Vessel.-A breach of a clause in the charter party, binding the charterer to keep the vessel in repairs, should be alleged in the complaint in an action by owners of a vessel against charterer: Coster v. N. Y. and Erie R. R. Co., 3 Abb. Pr. 332.

17. Rescission.-Two persons chartered a vessel for six months, and after a part of the time had passed, the owner agreed with one of the charterers, in writing, that the charter party was to be deemed to have expired: Held, a valid rescission of the contract: Wheeler v. Cartis, 11 Wend. 653.

18. Running Days.-A provision in the charter party for running days, is in effect a positive stipulation by the freighter that he will load and unload within the time mentioned, and inevitable accident does not excuse him: Field v. Chase, Hill. & D. Supp. 50.

No. 254.

ii. Charterer against Owner, for Deviation from Contract, and Abandonment of Voyage.

[TITLE.]

The plaintiff complains, and alleges: I. That on the ...... day of ...... the plaintiff and defendant agreed, by the defendant's ship, called the should sail to .... safely get, with all cargo of

.........

187., at . charter party, that then at

or so near there as she could convenient speed, and there load a full or other lawful merchandise, from the

factors of the plaintiff, and carry the same to ....

and there deliver the same, on payment of freight.

II. That the plaintiff duly performed all the conditions

of the contract on his part.

III. That the said ship, the

convenient speed, sail to

...

did not, with all or so near thereto as

she could safely get; but that the defendant caused the said

ship to deviate from her said voyage, and abandon the same,

to the plaintiff's damage ..

dollars.

[Demand of Judgment.]

19. Assent of Charterer. Where a chartered vessel met another vessel in distress in the course of her voyage, and one of the charterers, being on board, consented that a part of the crew might go on board the distressed vessel, to assist in saving her, the assent of the charterer would not vary the contract respecting the freight: Mason v. The Blaireau, 2 Cranch, 240.

20. Deviation.-On a voyage from South America to Boston, stopping at New York may be such a deviation as would render charterer liable for damage it might occasion. Yet it is not such a change as will dissolve the charter party, and entitle the owner to possession at New York, and to retain cargo for freight, though the charterer has become insolvent: Lander v. Clark, 1 Hall, 355.

21. Negative Allegations.-If there are exceptions in the charter party, allegations tending to negative the same are not necessary: Wheeler v. Bavidge, 9 Exch. 668; S. C., Eng. Law & Eq. R. 541.

No. 255.

iii. Ship Owner against Charterer, for Freight. [TITLE.]

The plaintiff complains, and alleges:

I. That on the... ... day of... ..., 187., at... the plaintiff and defendant agreed, by charter party, that the plaintiff's ship called

should, with all con

and that the defendant

should there load her with a full cargo of

other lawful merchandise, to be carried to

there delivered, on payment by the defendant to the plaintiff of freight, at ...... dollars per ton.

II. That the said ship accordingly sailed to

aforesaid, and was there loaded by the defendant with a full cargo of lawful merchandise, and the

said cargo in said ship to

plaintiff carried the

aforesaid, and there

delivered the same to the defendant, and otherwise performed all the conditions of said contract on his part.

of

III. That said freight amounted in the whole to the sum

dollars.

IV. That defendant has not paid the same.

[Demand of Judgment.]

22. Allegation against Assignee of Cargo.-That thereafter the said A. B. assigned the cargo to the defendant, who thereupon became the owner thereof, and entitled to receive the same.

23. Allegation of a Charter.-The plaintiffs alleged in their complaint that their assignors having chartered a vessel, earned freight, which the defendants, the consignees of the vessel, had collected and refused to pay over.

The defendants, in their answer, denied that the plaintiff's assignors had chartered the vessel in any other way than by a charter party, which provided that their right to any share of the freight should be contingent on the freight exceeding $25,000: Held, that this put in issue plaintiff's allegation of a charter, and that the plaintiffs must prove, either an unconditional charter, or that under the charter alleged by defendants the freight had exceeded $25,000: Patrick v. Metcalf, 9 Bosw. 483.

24. Lien for Freight.—The right of lien for freight does not absolutely depend on any covenant to pay freight on the delivery of the cargo: Abb. on Sh. pt. 3, c. i. sec. 7, p. 177; The Volunteer, 1 Sumn. 551. Nor can charterers, with the consent of the master abroad, make any agreement exonerating the goods from freight, and defeating the lien of the owners: Gracie v. Palmer, 8 Wheat. 605; reversing 4 Wash. C. Ct. 110. Nor can the master enter into such agreements, and such agreements would give no rights to a person who entered into them with the knowledge of the charter party: The Salem's Cargo, Sprague, 389. But the master, notwithstanding the interference of the charterer, may retain the goods until his lien shall be satisfied, or may sue the consignee after delivery of the goods: 8 Wheat. 39, 605; 3 Kent. (3 Ed.) 138, 210, 220; Abb. on Sh. 286-8; Smith Merc. Law, 187; Shaw v. Thompson, Olc. 144.

25. Sale of Cargo.-Where owners of cargo did not appear, and the master put up at auction and sold the cargo on due notice, and became the purchaser, but retained the goods on the vessel, awaiting a higher price, he had no right thus to constitute the ship a storehouse, and the charterer was not liable for demurrage, beyond a reasonable time for discharging after the first sale: Robbins v. Codman, 4 E. D. Smith, 315.

187., at

I. That on the .... day of ... the defendant, in consideration of........ dollars to him paid, granted to the plaintiff, by deed [here insert description], and in his said deed warranted that he had good title in fee-simple to the said property, and would defend the plaintiff in his possession of the same.

II. That the defendant was not, but one A. B. was then the lawful owner of the said lands, in fee-simple.

III. That on the....day of, ......187., the said A. B. law

fully evicted the plaintiff from the same, and still withholds the possession thereof from him.

[Demand of Judgment.]

1. Action on Covenant.-In order to enable one to maintain an action on a covenant, there must not only be a breach of the covenant, but some loss or damage to the covenantee: Swall v. Clark, 51 Cal. 227.

2. Assignment of Breach.-The covenant of quiet enjoyment, and of general warranty, require the breach to show an eviction: Rickert v. Snyder, 9 Wend. 416; Marston v. Hobbs, 2 Mass. 433.

3. Covenants, how Considered.-Covenants are to be considered dependent or independent, according to the intention of the parties, which is to be deduced from the whole instrument: Philadelphia R. R. Co. v. Howard, 13 How. U. S. 307, 339. Where covenants are dependent, an action cannot be maintained without showing a performance on plaintiff's part of every affirmative covenant: Webster v. Warren, 2 Wash. C. Ct. 456.

4. Covenant, what it Imports.-That a party covenanted by indenture imports that a covenant was under seal: Cabell v. Vaughan, 1 Saund. 291; Phillips v. Clift, 4 Hurlst. & N. 168; and an averment of execution imports delivery; Brinckerhoff v. Lawrence, 2 Sandf. Ch. 400.

5. Covenant by Grantee. The grantee in a deed-poll is bound by the covenants therein contained to be performed by him, and an action of covenant lies for a breach thereof. By acceptance of such a deed, the grantee is estopped from denying his covenants, or that the seal attached to the deed is his own as well as the grantor's: Atlantic Dock Co. v. Leavitt, 54 N. Y. 35. Even if an action of covenant will not lie in such case against the grantee, a court of equity will restrain him or his grantees from doing what, by such covenant, he has agreed not to do: Id.

6. Eviction-Allegation of. That the defendant has not warranted and defended the premises to the plaintiff; but, on the contrary, one C. D. lawfully claimed the same premises by a paramount title, and afterwards, in an action brought by him in the District Court of the ..........Judicial District, held at the County of...................., State aforesaid, in which said C. D. was plaintiff, and this plaintiff was defendant, the said C. D., on the....day of 187., recovered judgment, which was duly given by said Court against this plaintiff, for his seisin and possession of the premises, and on the....day of........, 187., lawfully entered the premises, and ousted the plaintiff therefrom, and still lawfully holds the plaintiff out of the possession thereof.

7. Eviction by Process of Law.-Eviction by process of law is not necessary to enable an action to be maintained on the covenant: McGary v. Hastings, 39 Cal. 360. And an averment that the vendor had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by due course of law: Held, sufficient: Day v. Chism, 10 Wheat. 449.

8. Eviction by Title Paramount.—In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title paramount; but no formal terms are prescribed in which the averment is to be made: Rickert v. Snyder, 9 Wend. 416; Day v. Chism, 10 Wheat. 449.

9. Eviction Necessary.-A purchaser in possession cannot reclaim the

purchase money on account of defect in the title, unless he has been evicted or disturbed: Salmon v. Hoffman, 2 Cal. 138. Nor on the ground that the title existed elsewhere than in the grantor: Fowler v. Smith, 2 Cal. 44.

10. General Covenant of Warranty.-If a deed contains a general covenant of warranty of lands thereby intended to be conveyed, and also a covenant that if any portion of the land has been before conveyed to other persons, the grantor will convey to the grantee other lands of like quality, the former covenant relates to land which the deed purports to convey, and not to the land which the grantor covenanted to convey in the latter covenant: Vance v. Pena, 33 Cal. 631. Where land is sold with covenant of warranty, accompanied with delivery of possession, and the purchaser gave a note in payment, the warranty and the promise to pay are independent covenants: Norton v. Jackson, 5 Cal. 263. A covenant of the grantor, warranting the title of the land sold as "indisputable and satisfactory," is not broken if the title is good and valid: Winter v. Stock, 29 Cal. 407.

11. Inducement.-Where matter in a deed is stated as inducement only, and the party suing is neither a party nor privy to the deed, a profert is unnecessary: Duvall v. Craig, 2 Wheat. 45. Under the common law, it was sufficient in a declaration for a breach of a covenant to state that the defendant conveyed to the plaintiff certain land or premises in the said deed particularly mentioned and specified, making profert, without any further description: 1 Saund. 233, n. 2; 2 Chit. Pl. 192, n. 1; Dunham v. Pratt, 1, Johns. 372.

12. Insufficient Averment. That the plaintiff was lawfully evicted from the right and title to said premises by a paramount and lawful title to the same, does not import an ouster from possession: Blydenburgh v. Cotheal, 1 Duer, 176.

13. Judgment Covenants.-Where the parties to a deed covenanted severally against their own acts and incumbrances, and also to warrant and defend against their own acts and those of all other persons, with an indemnity in land of an equivalent value, in case of eviction: Held, that these covenants were independent, and that it was unnecessary to allege in the declaration any eviction, or any demand, and refusal to indemnify with other lands; but that it was sufficient to allege a prior incumbrance by the acts of the grantors, etc.; and that the action might be sustained on the first covenant for the recovery of pecuniary damages: Duvall v. Craig, 2 Wheat. 45.

14. Liability. The covenant of warranty runs with the land, and the vendor is liable directly to the person evicted: Blackwell v. Atkinson, 14 Cal. 470.

15. Limitation.-Where a covenant of warranty is based upon a right or title, which is subsequently, by a judgment of the court, adjudged invalid, and five years are given by statute to appeal from said judgment, an action for breach of the covenant will not lie till the five years have expired: His v. Sherwood, 33 Cal. 474.

16. Non-Claim Covenant.-A covenant of non-claim in a deed amounts to a covenant of warranty, and operates equally as an estoppel: Gee v. Moore,

14 Cal. 472.

17. Notice of Action.-Verbal notice is sufficient: See Kelly v. Dutch Church of Schenectady, 2 Hill, 105. If the covenantor has notice of the ac tion, the covenantee is not bound to defend: Jackson v. Marsh, 5 Wend. 44.