seaman had entered into the usual articles, "to serve as a mariner on board a West India ship bound for the ports of Madeira, any of the West India Islands, and Jamaica, and to return to London, and in consideration of the monthly wages therein mentioned, to perform the above-mentioned voyage; but it was expressly stipulated, that he was not to demand or be entitled to his wages, or any part thereof, until the arrival of the ship at the above-mentioned port of discharge. The ship sailed, delivered her cargo at Madeira, and took in wine, part of which she delivered at Dominica, other part at Kingston in Jamaica, there took in government stores, delivered them at Port Antonio, in Jamaica, and the remainder of the wine at Martha Bray, in the same island. She was then freighted with a cargo of sugars for London, for which she sailed, but was lost at sea in the course of her passage home. It was contended on the part of the plaintiff, that the voyage being, by the terms of it, divided into three parts: 1st, to Madeira, next to the West Indies, and lastly home; and freight having been earned in the two first stages of the voyage, the plaintiff was entitled to recover his wages pro ratâ, for so many entire months as had been spent in the voyage. But Lord Ellenborough C. J. being of opinion, that, according to the true construction of the articles, the port of London was to be considered as the port of discharge, and consequently, as the ship had not arrived there, the plaintiff was precluded by the express stipulation from recovering any part of his wages, nonsuited the plaintiff. On motion to set aside the nonsuit, the Court of King's Bench concurred in opinion with the C. J.

There has not been any case wherein it has been decided, that a ship seized by way of retaliation, and afterwards restored, has been considered as captured; or in which the consequences of capture, as dissolving a contract for wages, have been considered as attaching.

Seizure, even hostile seizure", is not necessarily capture, though such is its usual and probable result. The ultimate act or adjudication of the state, by which the seizure has been made, assigns its proper and conclusive quality and denomination to its own original proceeding. If it condemn in such case, it is a capture ab initio; if it award restitution as an act of justice, it pronounces on its own act, as not being a valid act of capture, but as an act of temporary seizure and detention upon grounds not warranting the condemna

u Per Ellenborough C. J. delivering the opinion of the court in Beale Thomp! son, 4 East, 561.

tion of the property, or the dealing with it as captured (12). Hence, in the case of the seamen who were forcibly taken out of British merchant ships at Petersburgh, by order of the Russian government, and marched into the interior of the country, after which hostilities between Great Britain and Russia took place, but on the re-establishment of peace, the ships of both countries were restored, and the seamen were permitted to return with their vessels, which brought home their cargoes and earned their freight; it was holden, that this seizure, however hostile in the manner, so far partook of the nature of an embargo in its result, and not of a capture, that it did not put an end to the contract of the seamen for wages, even during the time of the detention and imprisonment: but, even considering it as a temporary capture, yet, like the case of a capture and recapture, the seamen were still entitled to their wages; their being so enti tled depended on the ship earning her freight for the voyage, and the performance of their stipulated duty; and here freight for the voyage was ultimately earned, and the seamen were not guilty of any breach of duty; for the stipula tion in the articles (13), not to be on shore under any pretence, without leave, before the voyage was ended, must be understood of a being on shore by the party's own unauthorised act; and even if such imprisonment on shore could be so considered, yet the master having afterwards received them again on board, without objection, amounted to a dispensation of the service in the interval, and entitled them to wages according to the original contract.

If a seaman can prove that he was disabled from performing his duty by an accident, e. g. by receiving a blow from à piece of timber accidentally falling on him, he will be entitled to recover his wages for the whole voyage, in like manner as if he had actually served.

A seaman, who is impressed before the ship returns to a

546.

x Beale v. Thompson, in error, 4 East, y Chandler v. Greaves, 2 H. Bl. 606. n. But see the remarks of Grose J. 6 T. R. 325.

(12) "It seems to be immaterial for this purpose, whether the restitution be awarded by the government of the country, as an act of state, or by any of the ordinary courts of civil judicature to which the administration of justice on these subjects is usually delegated." Per Lord Ellenborough C. J. 4 East, 561.

(13) The seamen had signed the articles in the usual form.

port of delivery, is entitled to his wages pro tanto, if the ship complete her voyage; but not if she is captured on her return.

But in a case where the defendant' gave a written promise to pay the plaintiff's intestate a gross sum (thirty guineas), provided he proceeded, continued, and did his duty as second mate in a certain ship, from Jamaica to Liverpool, and the intestate, who had regularly performed his duty, died about a month after the ship had sailed, and before her arrival at Liverpool; and it appeared, that the common rate of wages was 47. per month, when the party was paid in proportion to the time he served, and that the voyage was generally performed in two months; it was holden, that the representative of the intestate was not entitled to recover any wages on the express contract, because it was an entire contract and not divisible; nor on an implied contract, by reason of the axiom of law, that where the parties have entered into an express contract, no other can be implied.

It only remains to state the remedies which the law has provided for the recovery of seamen's wages.

If the hiring be on the usual terms, and made by word or by writing only, without seal, the seamen, or any one or more of them, and every officer, except the master, may sue in the Court of Admiralty, and may, by the process of that court, arrest the ship as a security for their demand (14), or cite the master or owners personally to answer to them.

But if the agreement be by deed, and the terms of such agreement are not the usual terms, then the only remedy is in the common law courts (15).

z Per Holt C.J. in Wiggins v. Ingleton, 2 Ld. Raym. 1211.

a Anon. London Sittings, Dec. 11th, 1806. Ld. Ellenborough C.J. 2 Camp. N. P. C. 320. n.

b Cutter v. Powell, 6 T. R. 320.

c Abbott, 421, 2. cites Winch, 8. 2 Vent. 181.8 Mod. 379. 2 Ld. Raym. 1206. 1 Str. 707. Say. 136. 1 Ld. Raym. 632. Salk. 33. 2 Str. 858. 1 Bernard. 297. Str. 937.

(14) In proceeding against the ship in specie, if the value thereof be insufficient to discharge all the claims upon it, the seaman's claim for his wages is preferred before all other charges; for the labour of the seamen, having brought the ship to the destined port, has furnished to all other persons the means of asserting their claims upon it, which otherwise they could not have had. Abbott,

430.

(15) In the courts of common law the seamen may sue either the master, as the person immediately contracting with them, and answerable to them or the owners, as the persons virtually contracting with them through the agency of the master, and answerable for the performance of his engagement. Abbott, 431.

But whether the party sue in the Court of Admiralty, or bring the action in the courts of common law; in both cases the suit or action must be commenced within six years next after the cause thereof has accrued, unless the party suing should have been under any of the disabilities mentioned in the statute of limitations, as infancy, absence beyond the seas, &c.

II. Of the Liability of Masters in respect of Contracts made by their Servants.

A CONTRACT made by a servant acting under the express authority of the master is binding on the master.

And the same rule holds, where the servant acts under an implied authority.

The defendants, who was a dealer in iron, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards. He sent the same waterman a second time, with ready money, who received the goods, but did not pay for them. Pratt C. J. ruled, that the sending the waterman on trust the first time, and the defendant paying for the goods, was giving the waterman a credit so as to make the defendant liable upon the second contract.

In an action by a publican, for beer sold, it appeared that the defendant had dealt with the plaintiff on credit, and paid him several sums for beer; at length the defendant gave notice to plaintiff's servant, who brought the beer, that he would pay for the beer as it came in. The defence to the present action was, that the defendant had paid the servant. Lord Eldon C. J. thought that the defendant was liable; for, as the change in the usual mode of dealing had been suggested by the defendant himself, and as he had personal dealings with the master, in a particular mode, notice to the servant alone of a change in that mode would not be sufficient; the defendant must shew that the master himself had notice of it, or he could have no defence to the action.

In an action on a farrier's bill, it appeared, that the defendant, by an agreement with his groom, allowed him five

guineas a year, for which he was to keep the horses properly shod, and furnish them with proper medicines when necessary. Ld. Kenyon said, that it was no defence to the action, unless the plaintiff knew of this agreement, and expressly trusted the groom. That if the servant buys things which come to his master's use, the master should take care to see them paid for; for a tradesman has nothing to do with any private agreement between the master and servant.

But where an express authority is not given by the master, and from the nature of the case an authority cannot be implied, the master is not liable.

Hence, where the chaise of the master had been broken by the negligence of his servant, and the servant desired a coachmaker, who had never been employed by the master, to repair it, which was accordingly done, and the master refusing to pay the amount of the bill sent in by the coachmaker, he insisted on retaining the chaise as a lien; Lord Ellenborough C. J. was of opinion, that the coachmaker was not entitled so to retain it; for whatever claim of that sort he might have, he must derive it from legitimate authority; that unless the master had been in the habit of employing the tradesman in the way of his trade, it should not be in the power of the servant to bind him to contracts of which the master had not any knowledge, and to which he had not given any assent. It was the duty of the tradesman, when he was employed, to have inquired of the principal, whether the order was given by his authority; but having neglected to do so, the master was not liable to the demand, and the detainer of the chaise was unlawful.

When the master is in the habit of paying ready money for articles furnished in certain quantities to his family', if the tradesman delivers other goods of the same sort to the servant, upon credit, without informing the master of it, and the latter goods do not come to the master's use, the master is not liable.

A master contracted with a tradesman to serve him with articles for ready money", and the master gave his servant money to pay for the articles, which was done accordingly; after some time the master turned away this servant, and took another, to whom he gave money as before; the second servant did not pay the tradesman, and afterwards ran away: an action having been brought by the tradesman against the

k Hiscox v. Greenwood, 4 Esp. N.P.C. m Stubbing v. Heintz, Peake's N.P.C,