case boson against Sandford and other Hilary term James roll in a action on  the case against some of the partowners of a ship for good lose by the neglect  of the master the defendant may on the general issue take advantage of the  plaintiff not name all the owner SC show SC ante SC Mod SC salk SC salk SC  comb SC Carth SC skin SC Freem case against the defendant as common carrier  between Exeter and London by water in a ship for hire on not guilty a special  verdict find that there be a master of a vessel who act that the good be  deliver to he and lose that the defendant be proprietor and that here be other  not name c argue for the plaintiff that this be a action ground on the wrong  and it may be joint or several at the election of the plaintiff for he have  election to bring it either on the tort or on the contract and here he have  bring it on the wrong as it be here it be pure ground on the wrong the  contract or charge be but inducement the gist of the action be the wrong the  nonfeazance and neglect the general issue be not guilty the damage arise from  the wrong a release of any part will release the whole and cite justice Morton  case a that where the action arise ex fault noritur cum mask b the case of  coal v Wilkes c swallow v Bmerson d and Matthew v Hopkins e we have not rely  on the agreement but on the wrong f and further argue that this ought to have  be plead in abatement for thereby the plaintiff will not have delay but may  have come to the knowledge of proper party and beside he ought to have give we  a title to a better writ and cite blackbourn v grave g if two tenant in common  bring a action advantage ought to be take of it by way of plea and there be no  difference between plaintiff and defendant as to that matter upon a assumpsit  I do agree it be so because it be non assumpsit modus et form shower KB but  otherwise in action upon the right as debt upon a bind in Whelpedales case    on non be factum Treby attorney general e contra if he will bring the action  against the owner he must bring it against they all this sound in wrong but it  arise from a breach of contract and duty it be bring against they as  proprietor and this wrong depend upon a breach of contract must be measure by  the contract the contract in law be with the proprietor the great reason why  they be liable be because they have remedy for the hire now they be all to  have the hire and it be unreasonable that all shall have the hire and yet some  only pay for the damage the contract be the matter of the action the case of  coal v Wilkes hut be that it must be bring against both the occupier here be a  personal contract raise by law and sound rather like a debt this can never be  a good plea in abatement for it amount to the general issue as in a assumpsit  the defendant can never plead that be and a easter term car b see the case of  Hamble v Trott Cowp to c Hutton d lev side keb e easter term car side keb f  see   cro car Savil raym g Trinity term car enter Hilary term car roll Mod  vent lev keb shower KB er p another do assume for it amount only to the  general issue and may be take advantage of it in evidence as to the case of a  bind it must be agree to they but that stand upon a very different reason  because the action arise thereupon the several fact of every one of the  defendant in its own nature the bind be several for one man seal be not  another seal and if the other seal not it be his bind several but here they  all appoint the master joint they officiate alike the next term the judge  deliver their opinion seriatim for the defendant dolbin to stick fast eyres  justice I agree no difference between a land and water carrier for both be  Chargeable Nichols v more side the master of the ship by the commonlaw be no  more than a servant to the owner and he have no power over the ship and good  the power which he have be by the civil law hob and it be plain the act or  default of the servant shall charge the owner he cite dyer Plowd roll Abr cro  Elizabeth Leon more this action ought to have be bring against they all for  they be Chargeable only upon the account of the hire which they all receive it  be a action find ex quasi shrinking and the law imply a agreement and contract  to have the good carry safe and without damage Southcotts case   that there be  such a contract be plain for they may have a quantum to deserve for their hire  now what be in its nature joint the plaintiff can sever in case of a express  promise it be plain Noy in case of money levy on a shower KB become facias and  not answer to the party the action of debt must be against all the sheriff of  a city or the coroner of a county and yet it be ground on the wrong but be ex  quasi shrinking it be joint h the verdict have express find that none be  present but only their servant who be the master and they be only Chargeable  by implication of law and therefore equal liable I objection that it ought to  have be plead in abatement I do agree where one jointtenant or tenant in  common bring a action personal and the defendant plead in bar he shall never  take advantage of it king but I think the defendant can not have plead this in  abatement for in the plaintiff declaration he charge they with a express  contract of their own and then they have be liable without their companion  because of that particular act of their own and so the defendant can not plead  other part owner it be in the plaintiff election to charge they either on a  express promise or on the contract imply in law which can not be disclose but  on evidence here he have not declare accord to his case for it be twenty and  he have say by three l by verdict a suit may be abate as well as by plea as to  the plaintiff be a stranger that be nothing for he have declare upon a express  agreement he be to do it true at his peril and so conclude for the defendant  Gregory ad idem the first question be if the owner be liable and not the  master only I think the master as this verdict be find be only a servant m the  owner be the carrier they have the sole profit and the master have nothing but  certain wage the master act do bind the owner n then whether they be not equal  bind and consequent if they ought not all of they to be sue the master be  servant to every one of the owner the plaintiff may have take notice of all  the owner as well as of some the case of Whelpdale v Whelpdale   be not like  this cro do come somewhat near to this but here be no personal act of the  party here be a agreement in law which seem joint in its nature here it be not  the same promise which he declare upon for the law raise it against they all  the joint shower KB charge they be the very foundation of the action and  therefore he conclude for the defendant dolbin justice the action lie against  the owner and it ought to have be bring against they all here be no express  contract and then a promise which h sand roll Abr hob I hut Mod king more cro  James side cro Elizabeth Mod l cro Elizabeth roll Rep Henry pl m hob n Plowd  Litt shower KB er p the law raise against they all it ought accord to be bring  against they all but it be doubtful if it shall not have be plead in abatement  I think they may have plead it in abatement and therefore I think the  plaintiff ought to have his judgement holt chief justice the question be if  this action be well bring against some of the part owner and if the part owner  the defendant may take advantage of this upon evidence consider upon what  account they be answerable first the master be liable and may be sue alone the  mariner may have their account against the master the master may sue for the  fraught he be such a person as may he sue the part owner be Chargeable because  they take upon they the fit of the ship and have the benefit of it the part  owner be answerable as employ and have the benefit of the voyage they be not  Chargeable as by reason of their interest for if some do not agree and the  major part do the other shall not have any advantage of the fraught so that it  be their have employ the ship but here they be partner in common carriage and  there be no difference between they they have a jointtrust repose in they this  action be ground upon the trust and that do imply a contract then in all case  where the action be ground on a contract all that be privy to the contract  shall take advantage of this omission on the general issue one be not a  carrier alone the declaration be that the defendant super see to take it be  the undertake of the master and that be the undertake of all it be the same as  if he have say super see assumpserunt in consideration of a promise to pay the  hire that the good shall be safe carry it may be so allege and so it be in the  case of Roger v head cro James and then advantage may he have of it on the  general issue the very take of the good be a general consideration though he  be not a common carrier as in the case of Symonds v Darknol palmer and the  declaration hold good though not say to be a common carrier and the acceptance  of the good make he liable all the misfeazance in this case be but for a  breach of trust a common carrier be as much bind to carry good as a innkeeper  be shower KB to lodge a guest here the employment be joint it be like a  jointoffice a breach of trust in one be so in all here the find of the jury  vary from the employment in the declaration the reward be joint to be pay to  they all and so the consideration be joint gelley v clerk cro James it be the  reward that raise the action because of the advantage now the reward be the  reason to charge they the manner of charge they must be the same suppose these  defendant have alone bring a action for the hire this plaintiff then defendant  may have take advantage of this on the general issue the case of Whelpdale v  Welpdale   be good law because it be his deed modus et form if the other have  die it will have be big deed the deed be his several act though the lie be  joint there be a great deal of difference between declare upon a deed and upon  another contract how can this be plead in abatement that there be other part  owner that will not do for if I have part of a ship mortgage to I I be not  answerable but it be the employment do charge I suppose they have say that  they simul cum the other super see to take without hoc that they do assume  modus et form for you must have traverse so now what will this have be but the  general issue as in Henry pl but in those time there be no general issue plead  for any nonfeazance or neglect but they always plead special and traverse some  particular point in the declaration cro Elizabeth more if no general issue can  be plead it be somewhat that case of Henry pl be upon a real charge this be  upon a personal contract I can distinguish the case of coal v Wilkes hut from  this it appear there be another joint occupier and advantage take of it on the  general issue because the duty arise there from the occupation if the  plaintiff will charge the owner he must charge they in such manner as they be  Chargeable he may have charge the master alone and so per curian judgement for  the defendant shower KB er p