case win against fellow the master of a ship covenant that the ship shall be  well furnish with man and the freighter covenant the ship shall return in  twelve month in covenant for the ship not return in due time it be a good plea  that the ship be not sufficient provide with man c SC holt debt upon a charter  party by the plaintiff as executor of win the master in which the defendant  and other freighter covenant that the ship shall go and return a in SC Carth  holt it be say that the whole court be of opinion it be a defeasance and no  release and that it be a good defeasance be pleadable in bar but see Hornly v  Houlditch term Rep and Heathcote v Cruikshanke term Rep shower KB er p home  within twelve month danger Marius To take out and the master warrant that the  ship at her departure shall be strong well and sufficient furnish with a boat  and necessary and man with himself and eight man and a boy which or as many as  shall be necessary shall at all time convenient be ready to serve with the  boat during the voyage and the plaintiff and the defendant each bind  themselves in a thousand pound to the other for performance the plaintiff  assign for breach that the ship depart from the Thames c that the master die  in the voyage at six month end and that it do not return within the twelve  month though the danger of the sea do not binder c the defendant plead that  the ship be at her departure man with the master seven man and a boy that the  ship sail to Madeira the canary and Jamaica that she be there six of the  seaman in the same vessel at her departure leave the service of the say ship  that the master do not provide other seaman to serve in the say vessel and  voyage and that ob diminution ind she lie six month at Jamaica and can not  return infra duodecen menses et hoc a preparation be verify the plaintiff  demurrer Mr Northey and myself argue that these be mutual covenant and not one  pleadable in bar to the other that there be a several remedy for each that  upon the record it appear the master die within the time and so can not  personal provide the seaman that they have not aver he alive when shower KB  the seaman depart and that the exception exclude all other accident Tremain e  contra that they do not plead it as a failure of perform the plaintiff  covenant but as a disability by mean of the master whereby they can not  perform they that provide of seaman be the act and duty of the master that the  freighter be not to provide seaman nor can they but the master must do that  and that this disability by the plaintiff mean be a good and sufficient excuse  for they upon which it be adjourn the next term it come on again and the court  agree it a good bar if the nonperformance of our part disable they to perform  they a but holt chief justice take exception to the plea that it do not allege  that they have do their part videlicet that they have load the ship or  discharge her at Jamaica or that they have dismiss her and give order for her  sail and her demurrage there be upon occasion of want of seaman and cite cro  and Fitzherbert title debt and at last judgement be give for the plaintiff  upon this reason per totan curian