1804. FLEMING, qui tam, against BAILEY. THE declaration, which was framed on the ftat. 39 Geo. 3. Monday, The ftat. 39 c. 79, stated that the defendant was indebted to the plaintiff G 3 c 79. in 60, and then contained three counts, in each of which the giving a penalty of ol plaintif went for a penalty of 20%. under the ftatute, for print- for printing ing a certain paper meant to be published and dispersed, and papers to be omitting the printer's name and place of abode, as required by published S. 27. After verdict for the plaintiff, without add ing the printer's name and place of abode, directs that any penalty impofed by the act exceeding 201. may be fued Lawes on a former day moved, in arreft of judgment, that no action lay by a common informer to recover penalties not exceeding 20%. under this ftatute; for by. 35. "It is enacted "that any pecuniary penalty imposed by this act exceeding the "fum of 20%. may be fued for and recovered by any perfon "who will fue for the fame in any court of record at Weftmin"fter, &c. and any pecuniary penalty imposed by this act and for in the "not exceeding the fum of 20%., and for the recovery whereof courts at West"no provifion is herein-before contained, shall and may be reco"vered before any justice of peace," &c. minfter, and any penalty not exceeding 201. ball and may be reco vered before zol. in the * Birch fhewed cause against the rule, and relied on the whole of the 35th clause taken together, as fhewing that the intention of the Legislature was that penalties of 201. might be recovered any juftice of in the fuperior courts; for though it first of all fays that any peace: but it penalty exceeding 201. may be so recovered, yet it goes on to fay, the fame alfo gives in "in which action it shall be fufficient to declare or allege that the claufe a form "defendant is indebted to the plaintiff in the sum of 201. (being of declaration "the fum demanded by fuch action,)" &c. That fhewed that the for recovering word exceeding had crept into the act by mistake. But giving courts of eft it its full effect, at leaft it would not apply to cafes where, as minfter. Yet here, the plaintiff went for more than one penalty of 201. [But held that a the Court expreffing a decided opinion against fuch a conftruction of the act,] he contended that the jurisdiction of the fuperior courts could not be oufted without exprefs words, or by neceffary implication; and here no fuch words or neceffity ex ifted. For the 35th section saying, that any penalty not exceed common in former cannot fue for a penalty of 201. in this court; no Luch power being given by the ftatute, and there being no power at common law for a common informer to fue for any penalty; and that the form of the declaration must be read in blank as to the fum, fuch form being otherwife inapplicable to a larger penalty before given: and that no fuch action lay to recover two or more penalties of 20 each. R 2 ing # [34] 1804. FLEMING, qui tam, against BAILEY. ing the fum of 201. fhall and may be recovered before any juftice of peace, &c. are not words of exclusion of any other jurifdic tion, but only give an option to the informer, especially as they are explained by the rest of the claufe. And he referred to Hill v. Dechair (a), Shipman v. Henbeft (b), and Rex v. More ley (c); in which latter, though the 6th fect. of the Conventicle A&t, 22 Car. 2. c. I. fays, "that no other court whatsoever shall meddle with any caufes of appeal upon this act, but they shall be finally determined in the quarter feffions only;" yet the Court held that the certiorari was not taken away, there being no ne gative words to ouft the jurifdiction of this court. The cafe of [315] Cates q. t. v. Knight (d), which went further than any other to ouft this court of jurifdiction by implication only, proceeded on the ground that there was a claufe giving the juftices of peace a power to mitigate penalties of the amount there fued for, over which they had before had express jurisdiction given to them; and that fuch claufe would be rendered nugatory if thofe penalties could be fued for in the fuperior courts: but here there is no fuch claufe; and no other neceflity for controlling the general rule. The ftat. 33 H. 8. c. 12. f. 1. fays, that all murders within the King's palaces shall be inquired of within the fame before the Lord Steward, &c. And the ftat. 31 Eliz. c. 5. S. 7. fays, that all fuits upon any ftatute for ufing any unlawful game, &c. fhall be fued out at the quarter feffions or affizes, &c.: yet the jurisdiction of this court is holden not to be excluded by those words. 2 Hawk. c. 26. S. 26-30. [Lawrence J. A common informer cannot fue at common law; therefore you muft fhew fome claufe in the act giving him a power to fue in this particular cafe.] Sect. 36. enacts, "that all pecuniary "penalties imposed by this act shall, when recovered either by « action in any court, or in a summary way before any justices, "be applied, one moiety to the plaintiff in any fuch action, or the "informer before any juftice, the other moiety to the King." [Lawrence J. That only applies to the penalty when recovered, but does not give the informer the original power to fue for it.] Lord ELLENBOROUGH C. J. A common informer can have no right to fue for any penalty, but where power is given to him (a) Sty. 381. (b) 4 Term Rep. 109. (c) 2 Burr. 1040. for for that purpose by the ftatute. Now the ftatute in queftion only fays, that a common informer may * fue in any court of record for any pecuniary penalty impofed by the act exceeding 201. The penalty given for this offence, each of which must be taken by itself, and cannot be reckoned accumulatively, does not exceed 204.; and therefore it is not within the provisions of the 35th claufe, which give an action. And the fenfe of that claufe requires that the form of the declaration there afterwards given fhould be read the fame as if the fum to be recovered were left in blank; for how otherwife can the penalty of 100/. given by the 15th fection be recovered. Per Curiam, Judgment arrested. 1804. FLEMING, qui tam, against BAILEY. [316] MULLOY against BACKER. Tuesday, family, and luggage, from Demarara to Flushing, and in the course ofthe voyage, within 4 days' IN N affumpfit, tried before Lord Ellenborough C. J. at the fit- The plaintiff tings after laft Hilary term at Guildhall, a verdict was found contracted to carry the defor the plaintiff for 250l., fubject to the opinion of this Court fendant, his on the following cafe. In February 1803, and before the commencement of the prefent war with Holland, the plaintiff who was the mafter of a merchant ship called the Doonbaag, then lying at the Dutch fettlement of Demarara, agreed with the defendant there to convey him, his family, fervants, and luggage, permitting him to have the exclufive ufe of the cabin, from fail of Flushthence to Flufbing, for the fum of 2400 guilders, which are ing, the ship equal to 1. fterling. In the month of April following the was captured by an Englif fhip under the command of the plaintiff, with the defendant, fhip of war, *his family, fervants and luggage on board, failed from Demarara and brought deftined for Flushing, and on her arrival at the entrance of the into England, and the ship British Channel on the 4th of July was captured by his Majefty's and cargo liarmed brig the Rambler, and carried into Plymouth as a Dutch belled for ship, war having been previously declared by his Majefty against prize in the the Batavian republic. The defendant. his family and fervants Court of Admiralty, and were fet at liberty at Plymouth, and their luggage restored to the cargo condemned, and proceedings ftill pending against the fhip, but the defendant and his family were liberated, and their luggage in fact rettored to their poffeffion. Held that, however the question might be as to the plaintiff's right to recover paffage money upon an implied affumpfit pro ratâ itineris if the fhip were reftored, yet pending the proceedings against the flip as prize in the Admiralty Count, no fuch action could be maintained; for non conftat but that the ship might be condemned and the freight decreed to the captors. *[ 317 R 3 them; 1804. MULLOY against BACKER. [318] them; but several pipes of wine which the defendant had on board were and still are detained by the captors. The veffel and her cargo have been libelled in the court of Admiralty for condemnation, but no decision as to the veffel (a) which has been claimed in that court by a British fubject as his property hath yet taken place: so much however of the cargo as was the property of British fubjects has been restored, and the remainder of the cargo has been condemned as lawful prize. The veffel, at the time when she was fo captured, had been 65 days on her voyage from Demarara towards Flushing; and by the ufual course of navigation fhe would have completed her voyage to Flushing in four days more. The queftion for the opinion of the Court was, whether the plaintiff were entitled to recover any and what fum? If the Court fhould be of opinion that he was fo entitled, the verdict for the plaintiff was to stand, or to be altered to fuch fum as the Court fhould think fit. If the Court should think that the plaintiff was not entitled to recover any thing, the verdict was to be entered for the defendant. Richardfon, for the plaintiff, contended that he was entitled to recover pro ratâ itineris, according to the principles eftablifhed in Luke v. Lyde (b); for here the defendant accepted his own liberation and his luggage at Plymouth, and did not require the plaintiff to carry him on to the end of his voyage. This was equivalent to the receipt of the goods by the freighter at Badeford in that cafe. "If," fays Lord Mansfield in that cafe," the mafter has his election to provide another fhip to carry the goods to the port of delivery, and the merchant does not even defire him to do so, the mafter is still entitled to a proportion pro ratá of the former part of the voyage." This cafe is indeed stronger than that, for there there was no real benefit rendered to the defendant by the partial performance of the contract; but on the contrary he was prejudiced by it; for the freight from Bideford, where the goods were accepted, to Lisbon, to which they were deftined, was greater than from Newfoundland, from whence they were originally fhipped. Whereas here the defendant has been actually benefited by the partial performance of fo much of the voyage, having been conveyed 65 (^) It was admitted that fince the recovery in this action the vessel had been restored to a Britifb.claimant. (b) 2 Burr. 882. days days forward to the place of his deftination, and within' a very few days fail of it: and the completion of the voyage was prevented by the capture without any default of the mafter. If it be faid that the paffengers could not do otherwife than accept their liberty, and that this diftinguishes the cafe from Luke v. Lyde, where the freighter had an option to accept his goods or not at Bideford; ftill it may be answered that the defendant might have fignified his disagreement to accept a partial performance of the contract, by requiring the plaintiff to carry him on to Flushing in another fhip. In that cafe the plaintiff had abandoned the fhip to the underwriters, and had thereby prevented himself from carrying the goods in the same ship; but he was holden to have the option of carrying them on in another veffel, and thereby earning the whole freight, if the defendant had not agreed to accept them at Bideford, and pay only pro ratâ. At any rate the acceptance of the luggage would be evidence of the defendant's affent to pay a quantum meruit pro ratâ, taking that to be the only evidence of affent which the circumftances of the cafe give rife to. The cafe of Luke v. Lyde came on upon an implied affumpfit, and is not contradiced by Cosk v. Jennings (a), where the plaintiff declared on the charter-party, and was holden to be precluded by his precife agreement from recovering as for a partial performance, though accepted by the defendant. Giles, contrà, contended, ift, that the defendant was not liable to pay the fum demanded; 2dly, that the plaintiff had not any title to demand it. 1. The contract was entire to convey the defendant from Demarara to Flushing for a certain fum, and it cannot be fevered, according to Cook v. Jennings. [Lawrence J. That may depend upon the law of Holland; for it was a contract made in a Dutch colony, and to be perfected in Holland ; and therefore whether the plaintiff can recover pro ratâ as for a partial performance of it, mult depend upon the law of Holland in that refpect.] It does not appear what the law of Holland is in this refpect; and therefore it is fufficient to fhew that by the law of this country, by which the plaintiff feeks to recover, he is not entitled upon the facts ftated. Bright v. Cowper (b) agrees with Cook v. Jennings, that he cannot recover on the contra itself for a partial performance; and Cutter v. Powell (c) (a) 7 Term Rep. 584. (b) 1 Brown!. 23. (c) 6 Term Rep. 320 1804: MULLOY against BACKER [319] |