case boson against Sandford Hilary term James roll overrule Goveth v Radnidge  east uphold Powell v Layton Bos p n r see Kendal v Hamilton App Cas where  there be several proprietor of a vessel and good be damnified by carriage the  action must be bring against all the proprietor and if it be bring against one  proprietor only he need not plead the jointure in abatement but may take  advantage of it by evidence on the general issue say quaere S c show S c show  S c salk S c salk S c comb S c Carth S c skin S c Trem S c Molloy roll Abr hob  vent vent Mod lev salk Allen vern vern Mod Mod Mod Mod Mod ld ray stram stram  will burr Bl Rep Cowp term Rep term Rep the plaintiff declare that the  defendant and seven other person be proprietor of a vessel in which they use  to carry good for a reasonable hire from port to port that he have load the  say vessel with board which be agree to be safe transport from London to  Topsham and that the defendant by neglect suffer he to be damnified c upon not  guilty plead a special verdict be find the substance whereof be as follow the  plaintiff load the ship with board of which ship the defendant and seven other  person be proprietor that the say ship usual carry good for hire that the  plaintiff deliver the good to Daniel hull who be master of the vessel and that  they be load therein but that none of the proprietor be present that there be  no actual contract between the plaintiff and the proprietor or any negligence  in they but the board be damnified by the neglect of the say master c the  question upon this special verdict be two first whether this action will lie  against the defendant alone as one of the proprietor or whether it must be  bring against they all second if the action ought to be bring against they all  then not guilty be not a proper plea because the defendant ought to have plead  in abatement that the rest of the owner super see to take simul cum the  defendant without hoe quod he super see to take so much it be argue for the  plaintiff that the action may be well bring against any single person of the  proprietor because it be ground upon a tort as well as upon a contract which  in this case be only a inducement to the action and therefore the plaintiff  have liberty to bring it either the one way or the other for it be both joint  and several modern so it be in trover where a man declare that he be possess  of such good that the defendant find they and promise to deliver they but  convert they to his own use the contract be but inducement for the cause of  action arise upon the conversion this be a remedy give by the construction of  the law modern er p and if so it must be certain and effectual to all intent  and therefore it have be rule matthews v Hopkins side see also Bage v Brumwell  lev and lev skin pl salk Mod ld ray Bac Abr a in ail action bring against a  common carrier upon the assumpsit in law and likewise upon the tort that the  declaration be ill and though the plaintiff have a verdict yet the judgement  be arrest because he have declare both way agreeable to this be that judgement  which be give upon the statute of Edward c for not set out of tithe in ail  action of debt bring against two tenant in common it happen that one of they  set out the tithe and the other carry they away and because the action be  bring against both it be hold to be ill sir John Gerrard case cite in the case  of coal v Wilks hut a for it lie only against he who do the wrong second if  the action ought to be bring against all then the defendant shall have take  advantage of it by plead and to have show who be the proprietor with himself  for it be impossible for the plaintiff to know who they be and for this reason  the plea be not good e contra the plaintiff ought to have bring this action  either against the master or all the proprietor it be true if this have be  only a action of a simple trespass he may have bring it against all or one but  this sound not only in a wrong but it be in breach of a covenant or duty and  so ought to be commence against all of they as common carrier now the great  reason why all be liable to a action be because they all have a reward for the  hire of the vessel but by Geo c the owner or owner shall not be subject or  liable to answer for or make good any loss or damage by reason of any  embezzlement secret or make away with by the master or mariner or any of they  of any gold silver diamond jewel precious story or other good or merchandise  ship on board or for any act matter or thing damage or forfeiture do occasion  or incur by the say master or mariner or any of they without the privity or  knowledge of such owner or owner further than the value of the ship with all  her appurtenance and the full amount of the fraught due or to grow due for and  during the voyage wherein such embezzlement secret or make away with or other  malversation of the master or mariner shall be commit c c and see the case of  Sutton v Mitchell term Rep and hall v grant cite in the case of Yates v hall  term Rep b and it seem very unreasonable that one shall bear the burden and  the rest run away with the profit see rich v go Cowp that although the master  of a vessel be also the lessee of it for a term of year yet the owner be still  liable for necessary furnish the ship by order of the master though without  their knowledge or without their be know to the person who supply They c the  principal case in Hutton coal v Wilks Hutton d be a authority direct to this  purpose though it be otherwise quote by the plaintiff counsel it be debt upon  the statute of Edward c bring against one lessee for not set out of tithe and  it appear upon the evidence that two be joint possess of the term and for that  reason it be hold that the action will not lie against one alone second the  defendant ought not to have plead in abatement that the rest of the proprietor  super see to take simul cum the defendant c because such a plea will not have  be good here for he shall never be compel to plead in abatement either in  modern debt or contract but in one single case   see also cro Elizabeth sand  more Mod a and that be where two be bind joint and one be sue he may plead in  abatement but can say non be factum for the bind be his deed since each of  they have seal it afterward in Hilary term the defendant bad judgement that  the action ought to be bring against all the partowners because they have all  a equal benefit and the ground of the action be upon a trust repose in all and  every trust suppose a contract and in all case ground upon contract the party  who be privy must be join in the action palm see Molloy de jure maritimo b the  master of the ship be no more than a servant to the modern er p owner he have  no property either general or special but the power lie have be give by the  civil law there be many case where the act of the servant shall charge the  master as for instance king Edward the six sell a quantity of lead to Renagre  and appoint the Lord north who be then chancellor of his court of augmentation  to take bind for payment of the money dyer c Lord north appoint one Benger who  be his clerk to take the bind which be do who deliver it to the lord and he  deliver it back again to his clerk in order to send it to the clerk of the  court of augmentation Benger suppress this bind and it be the opinion of all  the judge of England that Lord north be Chargeable to the king because the  possession of the bind by his servant and by his order be his own possession  so where a officer of the custom make a deputy who conceal the duty and the  master be ignorant of the concealment certify the custom of that part of the  revenue into the exchequer upon oath he be adjudge to be answerable for this  concealment of his servant dyer vern Bac Abr e so where the lessor be bind  that the lessee shall quiet enjoy and it be find that his servant by his  command he be present enter this be hold to be a breach of the condition for  the master be the principal trespasser Leon f therefore though the neglect in  this case be in the servant the action may be bring against all the owner for  it be ground quasi ex shrinking though there be no actual agreement between  the plaintiff and they and as to this purpose it be like the case where a  sheriff levy good upon a execution which be rescue out of the hand of his  bailiff sand hob hut Mod g this appear upon the return a action modern of debt  will lie against he though there be no actual contract between the plaintiff  and he for be have take the good in execution there be quasi a contract in law  to answer they to the plaintiff as to the second point it be rule that not  guilty be a good plea to any misfeasance whatsoever and that a plea in  abatement videlicet that the rest of the owner super see to take simul cum to  ward off without hoc quod defendens super see to take so much have be no more  than the general issue but he have not plead thus see the case of deering v  more cro car a dolben justice agree that the action ought to be bring against  all the proprietor it be upon a promise create by law but he be of opinion  that this matter may have be plead in abatement but see the case of abbot v  smith Bl Rep where the authority of this case as to the point of plead be  impeach and it be determine that if a action be bring against one partner only  no advantage can be take of the omission but by plea in abatement see also the  yearbook Henry pl Edward pl Whelpdales case   stead v Mohun cro James chapel v  Vaughan sand askew v Hollingsworth cro Elizabeth sayer v chater Lutw Leslie v  champante stram Bac Abr Carth Moffatt v Farquharson brown case in Chan b