on the terms that if the ship should be lost or the [hemp] should be damaged on the voyage, the said agreement should be considered void for such quantities as might be lost or damaged, the quality to be of fair average of the season, and payment to be made by the plaintiff by six months' acceptance, or cash in fourteen days, less two and a half per cent. discount, at the plaintiff's option; and after the making of the said contract, the said ship arrived at

aforesaid with tons of the said [hemp] on board not damaged; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to the delivery of the last mentioned goods as aforesaid, yet the defendant did not deliver to the plaintiff the said of the said [hemp]. (f)

tous

11c. Purchaser against Vendor on a Contract for the Sale of Goods sold by Description, for delivering Goods inferior to the Description. That it was agreed by and between the plaintiff and the defendant, that the defendant should sell and deliver to the plaintiff, and that the plaintiff should buy and accept from the defendant, sacks of flour, at the price of shillings per sack, of the same quality as certain flour which the defendant had then lately sold and delivered to G. H.; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to have such flour delivered as aforesaid, yet the defendant did not deliver to the plaintiff any such flour as aforesaid, but delivered to the plaintiff, as and for the flour so agreed to be sold and delivered as aforesaid, certain flour not of the same quality as the flour which he had so sold and delivered to the said G. H., but of an inferior quality, whereby the plaintiff lost the price paid by him to the defendant for the said flour, and the profits which he would have derived from the performance of the said agreement by the defendant. (g)]

12. Vendee against Vendor, on his Promise to return a Sum deposited with him, if Plaintiff should, on Trial of a Horse, decline to pur chase it.

For that the defendant was possessed of a certain horse, and was desirous of selling the same, and it was agreed between the plaintiff and the defendant that the plaintiff should pay to and deposit with the defendant a certain sum of money, and that the defendant should let the plaintiff have the said horse on trial, on the terms that if the plaintiff did not upon such trial like the said horse, and declined buying the same, he the defendant would take back the said horse, and would return the said sum of money to the plaintiff, when he (f) [Like counts. Moore v. Campbell, 10 Ex. 323; Fischel v. Scott, 15 C. B. 69. Like counts on contracts for the sale of goods" on arrival" by a certain ship; Boyd . Siffkin, 2 Camp. 326; "on arrival" before a certain day; Idie v. Thornton, Camp. 274; "to arrive" by a certain ship; Lovatt v. Hamilton, 5 M. & W. 639; Johnson v. Macdonald, 9 M. & W. 600. [All held to be conditional on the arrival of the ship with the goods.] Like counts on contracts for the sale of goods "now on passage, and expected to arrive by ' a certain ship; Gorissen v. Perrin, 2 C. B. N. S. 681; 16

VOL. II.

66

to

be delivered on the safe arrival of " a certain ship: Hale v. Rawson, 4 C. B. N. S. 85. [All held absolute on the arrival of the ship, although without the goods on board.] Count on a contract of sale of 500 tons of nitrate of soda, to form the full cargo of a ship named, for delivering only the full cargo, being less than the quantity, Bourne v. Seymour, 16 C. B. 337.]

(g) [Like counts. Harnor v. Groves, 15 C. B. 667; Loder v. Kekulé, 3 C. B. N. S. 128; Ramsden v. Gray, 7 C. B. 961; St. Losky v. Green, 9 C. B. N. S. 370.]

the plaintiff should return and redeliver the said horse to the defendant; and the plaintiff paid to and deposited with the defendant the said sum of money, and received the said horse on the terms aforesaid; and although he did not like the said horse on trying the same, and declined to buy the same, and hath always been ready and willing to return the same to the defendant, whereof the defendant had notice, and the plaintiff tendered the said horse to the defendant, and requested him to return to him the plaintiff the said sum of money, yet the defendant did not receive back the said horse from the plaintiff, or repay the said sum of money, whereby the plaintiff incurred expenses in and about taking care of the said horse, and endeavoring to cause the defendant to take back the same, and hath lost and been deprived of the use of the said sum of money, and was and is otherwise injured. [Add a count for money had and received and an account stated.]

[12a. Purchaser against Vendor, for not delivering [a Machine] within a Time agreed upon, stating Special Damage.

That the defendant bargained and sold to the plaintiff, and the plaintiff bought from the defendant, [a threshing machine,] at a certain price, and upon the terms that the defendant should deliver the same to the plaintiff on or before the day of A. D. -; and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to a delivery of the said [threshing machine] as aforesaid, yet the defendant did not deliver the said [threshing machine] to the plaintiff on or before the said whereby the plaintiff was unable to thresh his wheat, and the same became damaged and wetted by the rain, and deteriorated in value, and the plaintiff incurred expense in drying and carting and stacking the same, and was unable to sell the same as soon or for so large a price as he otherwise would have done. (h)]

day of

A. D.

13. For not supplying Machinery for a Steam Vessel according to

Drawings.

Wimshurst v. Deeley, 2 C. B. 253.

14. For not supplying Girders according to Drawings.
Kingdom v. Cox, 2 C. B. 661.

SALE OF LAND. See "Vendors and Purchasers."

SCHOOLMASTER.

1. Declaration by a Schoolmaster, for Tuition, Board, &c. (i) Commencement as ante, 33.] For work done by the plaintiff as a schoolmaster in and about instructing A. B. [or "divers infants and other persons"]

(h) [A like count; Smeed v. Foord, 1 El. & El. 602; count for not delivering part of a machine, whereby the plaintiff was prevented from completing and delivering the whole machine according to a contract; Portman v. Middleton, 4 C. B. N. S. 322.]

(i) As to the liability of an infant for his teaching, [1 Chitty Contr. (11th Am. ed.) 198; Raymond v. Loyl, 10 Barb. 489; Middlebury College v. Chandler, 16 Vt. 686.]

for the defendant at his request, and for meat, drink, washing, lodging, and other necessaries by the plaintiff provided for the said A. B. [or "the said infants and other persons"] at the defendant's request, and for [money paid and account stated].

SEAMAN.

OBS. As to the legal rights to wages, see, in general, the merchant shipping act, 17 & 18 Vict. c. 104, s. 181 et seq. By s. 188 a seaman may sue in a summary manner before two justices, for any amount of wages due, not exceeding £50, over and about the costs of any proceeding for the recovery thereof, so soon as the same become payable, and the order made by the justices shall be final. By s. 189 no suit for the recovery of wages under the sum of £50 shall be brought in any superior court of record in her majesty's dominions, unless the owner of the ship is adjudged a bankrupt, or unless the ship is under arrest, or is sold by authority of a competent court, or unless the justices acting under s. 188 refer the case to be adjudged by such court, or unless neither the owner nor master reside within twenty miles of the place where the seaman or apprentice is discharged or put on shore. Where a seaman brought an action for an assault, and also for wages under £50, a plea founded upon the above section was allowed by the court. Rossi r. Grant, 5 C. B. Ñ. S. 699. It seems that it is doubtful whether this section applies to a foreign vessel. Burns v. Chapman, 5 C. B. N. S. 481. And where an owner resided more than twenty miles from London, but regularly attended the corn market in London, and frequented the house of his agent in Mark Lane when he did so, it was held that he did not reside within twenty miles, so as to deprive the seaman of his right to proceed in the court of admiralty. The Blakeney, 5 Jur. N. S. 418. See a form of indebitatus count for wages; Robins v. Power, 4 C. B. N. S. 778; and law as to who should be sued, where there has been a change in the ownership of the vessel during voyage. Where a seaman is sent home during a voyage as a witness under authority of a naval court, he cannot recover any wages subsequently to leaving the ship. Melville v. De Wolf, 4 El. & Bl. 844. Where a seaman has engaged to serve for a certain term at given wages, as a general rule, any agreement to pay him higher wages is without consideration, and cannot be enforced. Frazer v. Hatton, 2 C. B. N. S. 512; [3 Kent, 185;] but where a ship in harbor during a voyage became so short-handed that it would be dangerous to life to put to sea, a promise to the remainder of the crew of an additional sum if they would proceed on the voyage, was held binding, as they were not by their original contract bound to proceed with the diminished number of hands at the risk of their lives. Hartley v. Ponsonby, 7 El. & Bl. 872; The Mobile, 1 Swabey, 256; 3 Jur. N. S. 893. [On the death of the captain, a seaman promoted to be mate, is entitled to an increase of wages. Hanson v. Royden, L. R. 3 C. P. 47.] But there is no express obligation on the part of the owner of a ship, towards a seaman who had agreed to serve on board of her, that the ship shall be in a fit state to perform the voyage; and in the absence of any express warranty to that effect, or any knowledge of the defect, or any personal blame on the part of the ship-owner, the seaman cannot maintain an action by reason of the ship becoming leaky and of his being obliged to undergo extra labor. Couch v. Steel, 3 El. & Bl. 402. [But see Savary v. Clements, 8 Gray, 155; Dixon v. The Cyrus, 2 Pet. Adm. 407, 411; Rice v. The Polly, 2 Pet. Adm. 420.] The master as well as the owner may be sued for wages. As to suing for double wages, see s. 187. As to the law generally, see Maule & Pollock on Shipping, 169. The master has now the same remedies for wages as a seaman. 191. A seaman's share of salvage cannot be recovered by action from the owner or master, although the salvage claimed shall have been paid by the owner of the vessel saved to the owner of the salvor. Atkinson v. Woodall, 31 L. J. M. C. 174.

1. Indebitatus Count for Wages as a Seaman.

S.

For the wages for the work and services of the plaintiff done and rendered

for the defendant at his request as a hired seaman and mariner on board the ship

(k)

2. On a Sailor's Advance Note. M'Kune v. Joynson, 5 C. B. N. S. 218.

[3. Action for Breach of Contract for an Ordinary Voyage by employing Plaintiff on a Voyage which would expose him to Greater Danger.

Burton v. Pinkerton, L. R. 2 Ex. 340.]

SERVICES. SeeMaster and Servant."

SHARES. See "Public Company," ante, 226.

For shares in the

Indebitatus Count for Shares sold.

Company [Limited] sold, delivered, and transferred

by the plaintiff to the defendant.

SHERIFF.

1. By a Sheriff, for Poundage and Fees. (1)

For poundage and fees payable to the plaintiff as sheriff of the county of

for and in respect of work done by the plaintiff, as such sheriff, and his officers and servants, for the defendant at his request. (m)

2. By Sheriff's Officer against the Attorney in the Cause for Fees and Conduct Money. (n)

Newton v. Chambers, 1 D. & L. 869.

SHIP.

See "Carriers," ante, 97;"Charter Party," ante, 110; Demurrage," ante, 117; "General Average," ante, 133; "Insurance," ante, 158; "Seaman," ante, 243.

(k) [Like counts. Frazer v. Hatton, 2 C. B. N. S. 512; Melville v. De Wolf, 4 El. & Bl. 844; Robins v. Power, 4 C. B. N. S. 778; Edward v. Trevellick, 4 El. & Bl. 59.]

(1) A sheriff may maintain an action for his poundage fees (Tyson v. Parke, 2 Ld. Raym. 1212) against the person issuing the execution, but not against the attorney in the cause; Maybery v. Mansfield, 9 Q. B. 754; [2 Chitty Contr. (11th Am. ed.) 871; Campbell r. Cothran, 65 Barb. 534; Seal v. Hudson, 4 D. & L. 760;] or he may levy them and the expenses of the execution, over and above the sum recovered. C. L. P. Act, 1852, § 123. See 1 Vict. c. 55. As to when a sheriff is entitled to poundage, see [2 Chitty Contr.

(11th Am. ed.) 870, and notes, 871;] Chit. Arch. Pr. tit. " Poundage.' As to remedies against a sheriff for taking more than he ought, see ante, Extortion," 125; ante, Arrest," 52; [2 Chitty Contr. (11th Am. ed.) 871, 872.]

66

(m) [See other forms, Maybery v. Mansfield, 9 Q. B. 754; Walbank v. Quarterman, 3 C. B. 94; Miles v. Harris, 12 C. B. N. S. 550; Carter v. Hughes, 2 H. & N. 714.]

(n) An officer who executes process can recover for his fees against the attorney in the cause and not against his client. Walbank v. Quarterman, 3 C. B. 94; Brewer r. Jones, 10 Ex. 665; Maile v. Mann, 2 Ex.

608.

Against the Captain of a Ship, (0) for excluding Plaintiff, a Passenger, from the Cuddy, &c. and Pleas.

Prendergast v. Compton, 8 C. & P. 454.

STATUTES-PENAL.

OBS. See titles " Arrest," ante, 52; "Bribery," ante, 66 92; Extortion," ante, 125. In an action on a penal statute, the omission in the declaration that the act was done "against the form of the statute, &c." is fatal in arrest of judgment. Fife v. Bousfield, 6 Q. B. 100; 2 D. & L. 481. See C. L. P. Act, 1852, s. 143; [1 Chitty Pl. 387.] In a qui tam action upon a local act, incorporating 11 & 12 Vict. c. 63, it was held that the plaintiff must allege in his declaration that he is the party grieved, or that he had the consent of the attorney general for taking proceedings to recover the penalty. Hollis v. Marshall, 2 H. & N. 755. The exceptions in the enacting clause of a statute, which creates an offence and gives a penalty, must be negatived in the declaration. Spieres v. Parker, 1 T. R. 141, per Alderson B.; Simpson v. Ready, 12 M. & W. 740; [1 Chitty Pl. 246.] But where an act of parliament in the enacting clause creates an offence and gives a penalty, and in the same section there follows a proviso containing an exemption which is not incorporated with the enacting clause by any words of reference, it is not necessary for the plaintiff in suing for the penalty to negative such proviso: Ib.; Steel v. Smith, 1 B. & Ald. 94; Pilkington v. Cook, 16 M. & W. 615; [1 Chitty Pl. 246, 386.] The venue is local, if the action be brought by a common informer; 31 Eliz. c. 5, s. 2; 21 Jac. 1, c. 4, s. 2; Barker v. Tilson, 3 M. & S. 429; but the issue may be ordered to be tried in any other county than that in which the venue is laid. Greenhow v. Parker, 6 H. & N. 882; 3 & 4 W. 4, c. 42, s. 22. But where the action is expressly given to the party grieved, the venue is transitory. Fife v. Bousfield, 6 Q. B. 100. As to the time limited for bringing penal actions, see post, Pleas, "Limitations." By 18 Eliz. c. 5, s. 1, made perpetual by 27 Eliz. c. 10, every informer, upon any penal statute, must sue in proper person or by attorney. An infant, therefore, cannot be a common informer. Maggs v. Ellis, Bull. N. P. 196. But this statute only applies to informers, and not to the party grieved.

[Commence as ante, 15, Form 30.]

1. On the Gravesend Pier Act, against a Clerk, for acting as Treasurer. Hawkins v. Newman, 4 M. & W. 613.

2. On a By-law of a Corporation (since the Municipal Act), against the Corporation, for Money arising from the Funds of the Corporation, ordered by the By-law to be paid to a Burgess.

Hopkins v. Mayor &c. of Swansea, 4 M. & W. 621.

3. On a By-law by a London Company against a Liveryman, for a Penalty for a Breach of one of the Regulations of the Company. Piper v. Chappell, 14 M. & W. 624.

4. Against a Landlord, to recover Poor Rates under Local Statutes. Robinson v. James, 1 Dowl. N. S. 756.

(0) [As to the liability of the captain on &c. of the ship, see 1 Chitty Pl. 41, note (u), contracts made respecting the employment, and cases.]