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.