The true question for us to decide. is, whether the Plaintiff might have maintained an action of covenant upon the charter party annexed to the record. For if that action would lie and furnish a complete remedy for the sale of the Schooner, it follows that the action of assumpsit, without any express promise by the Defendant, to pay the money to the Plaintiff, after the sale of the vessel, but founded merely on the assumpsit raised by law, cannot be sustained. The Defendant expressly covenants to man and victual the vessel for the specific voyage and back again to the port of Wilmington, and to pay a certain sum for the run to either of the islands mentioned, and back again. Demurrage is to be paid if the vessel is detained in her port of delivery beyond a certain time, and the whole tenor of the contrast shews that it was the intent of the parties, that the vessel should return to Wilmington. If then the Defendant, instead of facilitating her return, as he was bound to do, hath altogether prevented it, by selling the vessel, such an act amounts to a breach of the charter party, which, like any other deed, must be construed according to the design of the makers. The Plaintiff for this had an higher remedy by action of covenant or debt, and upon this appearing, it was proper for the Court to direct a nonsuit. The declaration filed in the County Court ought not to be changed on an appeal; and if the grounds of action are declared to the Defendant, though without a *107written declaration, and the parties proceed to trial accordingly, the same grounds are understood to exist, and to form the basis of the action upon the trial of the appeal. It is unjust that the Defendant, who has prepared himself for the trial in one form of action, should by the appeal be surprized with another, and totally different action to which his defence may be altogether inadequate. It is equally so, that the Plaintiff, after hearing his adversary’s defence and evidence, should be allowed to alter and mould his action so as to avoid its force and direction.
Davis v. Gibson, 1 N.C. 102, 1 Cam. & Nor. 102 (1800)
Isaac Davis vs. Thomas Gibson.
The Plaintiff instituted an action upon the Case against the Defendant in the year 1794, in the County Court of New-Hanover, for the sum of 850l. At March term, 1797, of said Court, the Plaintiff moved to amend his writ, and alter it from Case to Debt, agreeably to the fallowing co*103 py of the minutes of said County Court; “ In the suit Isaac Davis vs. Thomas Gibson, the Plaintiff moved for leave to alter the Writ from Cale to Debt, which was opposed by the Defendant, and it was ordered on argument, by the Court, that the Plaintiff take nothing by his motion ; from which decision said Plaintiff prayed an appeal to the Superior Court, which was granted; and at term 179 of said Court, upon a station for that purpose, the said Court refused permission to alter the writ. At November Term, 1799, the Plaintiff filed his declaration in case, for money had and received to the use of the Plantiff, to which the Defendant pleaded the general issue; and at November term, 1800, on the trial of the said cause, it appeared in evidence, and was proved, that the Defendant had gone in the vessel mentioned in the charter party, to the West-Indies, and sold her for 850 dollars, and received the money, but had paid it to the Captain of said vessel, as the Defendant declared, who, the Defendant said was authorised to receive it, though it appeared in evidence, that the Captain was put in the vessel as Captain by the Defendant : But the Court ordered a nonsuit upon the ground that the Plaintiff’had originally issued his writ upon a sealed instrument, and ought not after-wards to alter the cause of action, which said sealed instrument is as follows:
North Carolina, set.
“This charter party of assreightment, indented, made, concluded, and agreed upon this 2d day of January, A. D. 1794, and in the 18th year of American Independence, between Thomas Gibson, merchant of the island of St. Bartholomew, of the one part, and Isaac Davis, Pilot of the town of Wilmington, State, aforesaid, on *104the other part, witnesseth, that the said Isaac Davis, for the consideration hereinafter mentioned, hath granted and to freight lessen, and by these presents doth grant and to freight let unto the said Thomas Gibson, his Heirs, Executors, Administrators, and Assigns, the whole of the Schooner Rambler, of Wilmington, whereof he the said Isaac Davis is sole owner, to proceed from the port of Wilmington, as soon as possible, and to proceed to the island of St. Eustatia, St. Bartholomews or St. Thomas’s, which may be most convenient, the said Isaac Davis to deliver to the said Thomas Gibson, or his assigns, the said Schooner Rambler, well apparelled and fit for sea, and the said Thomas Gibson to man and victual her for the said voyage, and back again to the Port of Wilmington, and to pay to the said Isaac Davis the sum of one hundred Spanish milled dollars for the run to either of the said islands and back again, to him the said Isaac Davis, his heirs and assigns. And it is further covenanted and agreed upon, that the said Schooner Rambler shall not be detained in any of the aforesaid islands, that is to say in her port of delivery, making a provision for Charterer’s privilege of trying markets for the space of 24 hours, in any of the aforesaid islands, more than the space of eighteen days: In cafe of detention, said Gib-son agrees to pay the sum of six dollars per diem, for every such day’s detention. And the said Thomas Gibson doth also further agree to pay to Capt. Robert French, all balance of charter money as specified, and all such demurrage as arises afore-said, on delivery of cargo in any of the above-mentioned islands. And he the said Gibson covenants, and by these presents agrees to indemnify said Isaac Davis from, any penalty or loss which may incur by said vessel being employed in any *105contraband or illicit trade during the term of charter. And he the said Thos. Gibson doth covenant and further agree to well and sufficiently man and victual the said Schooner Rambler for the said voyage and back again to the port of Wilmington, and for the true performance of all and every the articles, covenants, and agreements before mentioned, they the said Thomas Gibson and Isaac Davis do hereby bind themselves each party to the other in the sum of two hundred dollars, to be paid by either of the parties failing in the performance thereof, or his heirs, to the other party or his assigns. In witness whereof, the said parties have hereunto set their hands and seals the day and year above written.
Signed, ISAAC DAVIS, Seal.
THOMAS GIBSON, Seal.
N. B. We the parties above named do agree to have the said Schooner Rambler insured for six hundred dollars, to pay the insurance one half each party.
ISAAC DAVIS, Seal.
THOMAS GIBSON, Seal.
The questions are,
Whether it appears by the record produced and hereto annexed, that the action was founded on the said sealed instrument ; if so, then whether the Plaintiff can alter the declaration which he made in the County Court :
Or having made no declaration, can vary the real and true ground of his action.
*106And supporting that he will now be permitted to declare in cafe, whether he has not a better writ;
And whether the bail being now liable, he should be permitted to vary his original ground of action of as to charge them.