DEBT against Briard, on a charter party between Briard, owner of a vessel, and Hill on the one part, and the plaintiff on the other, on a covenant that the owner should go to such a port in Spain, (except two ports which they named) as they should appoint, and they appointed to fail to such a port, which he refused. Issue was taken on the refusal, and it was found for the plaintiff. Now it was, moved in arrest of judgment.
1. The declaration is on a charter party between Briard apd Hill, of the one part, and it is shewn that Briard did not perform; while he ought to have declared that neither Briard nor Hill did perform. For if Hill did perform, it is *226sufficient. As in debt against an executor, the declaration ought to be that neither the executor nor the testator, &c. 9 Rep. 108. Tresham’s case. But this was overruled on the authority of Cloberry’s case.
2. They ought to shew that the place appointed was not one of those excepted. 8 E. 4. 7. Sed non allocatur: for this shall not be intended. Intrat. T. 3 Car. rot. 1038.