Jones v. Freeman

Robinson, J., delivered the opinion of the court. Demurrage was claimed by the appellee, upon the following bill of lading: Shipped in good order and condition by Charles - Kimball & Co., on board the good schooner, called the R. L. Tay, whereof --is master for this present voyage, now lying in the Port of Boston, and bound for Baltimore, Md., to say, forty-three hundred bushels potatoes (in bulk) on board, to be delivered. Seven working days allowed for the discharge of the potatoes, after that, consignee to pay demurrage at the rate of forty dollars per day, for every day detained, being marked and numbered as in the margin, and are to be delivered in like good order and condition at the aforesaid Port of Baltimore, Md., (the danger of the seas only excepted,) unto Lewis Jones & Co., or assigns, he or they paying freight for the said goods in United States currency, at fifteen cents per bushel, with primage and average accustomed. In witness whereof the master or agent of the said vessel, hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void.

(Signed) C. T. FREEMAN. Dated at Boston,--186 2 c. U. S. Stamp. ²⁷⁶ . Judgment by default being rendered for the plaintiff, for nine days’ demurrage, at forty dollars per day, for want of *affidavit to the defendants’ plea, a motion was made to strike out the judgment; because the cause of action was not a contract within sec. 6, ch. 6, of the Act of 1864.

That section provides that, “ Every suit, where the cause of action is a contract, whether in writing or not, or whether express or implied, shall stand for trial or judgment on the first day of the term, or at the return day next succeeding the entry of the appearance of the defendant, whichever shall first happen, unless the time shall be extended by the court on cause shown.” In this case, it is