Exch. of Pleas, 1840. Semble, that where a party adds the similiter, forming part of his own pleadings, it is a pleading MIDDLETON v. WOODS. THIS was an action of debt to recover a sum of money under £20. The defendant pleaded nunquam indebitatus, to which the plaintiff added a similiter, but without a date, and on the 13th of January delivered the issue so made up. On the following day, the 14th, the plaintiff's attorney took out a summons, calling on the defendant to shew cause date, or it may why the action should not be tried before the sheriff, which within R. H. T., 4 Will. 4, s. 1, and must bear a be set aside for irregularity. Such irregularity is not waived by the party to whom the issue so made up is delivered, omitting to take that objection, on attending a summons to shew cause why the action should not be tried before the sheriff. summons the defendant's attorney attended, but took no objection to the issue on the ground of there being no date to the similiter. However, on the 15th, he took out a summons to shew cause before a Judge at chambers why the replication should not be set aside, on the ground of its being without a date: and it was afterwards set aside accordingly by an order of Rolfe, B. Dowdeswell now moved for a rule to shew cause why that order should not be rescinded. First, the similiter is not a pleading within the meaning of the rule of H. T., 4 Will. 4, s. 1, which requires "every pleading, as well as the declaration, to be entitled of the day of the month and year when the same is pleaded." The similiter is only a form which serves to mark the acceptance of the issue when well tendered, and the mode of trial proposed; Stephen on Pleading, 2nd edit. 280: and in early times it was added in making up the record, and formed no part of the pleadings. It was decided in Shackel v. Ranger (a), that the rule did not apply to a similiter added by one party for the other. Here the plaintiff added his own similiter. [Parke, B.-That is the distinction. When a party adds his own similiter, it is a pleading, and ought to have a date; but where it is added by the opposite party, (a) 3 M. & W.409. 1840. บ. WOODS. it need not. That distinction was taken by this Court in Exch. of Pleas, Shackel v. Ranger.] Secondly, the objection was waived, by the omission of the defendant to take it on attending MIDDLETON the summons at the time the writ of trial was applied for. In Mammatt v. Mathew (a), a request by the defendant that the plaintiff would accept certain persons as bail without opposition, was held to amount to a waiver of all irregularities in the affidavit of debt. The defendant's attorney, by attending the summons for the writ of trial, must be taken to have admitted that issue was regularly joined. PARKE, B.-The only question before the Judge, on the summons for the writ of trial, was whether any difficult question of law was likely to arise, which might render the trial before the sheriff improper. The defendant could not set aside the issue for any irregularity, on attending before the Judge to shew cause why the action should not be tried before the sheriff. The proper course was to obtain a summons to set it aside, which he did, and he was in time on the 15th. On a motion to compute principal and interest on a bill of exchange, you cannot shew for cause the irregularity of the judgment. So also, you cannot attack the regularity of the issue, on a summons like the present. The omission to do so, therefore, could not amount to a waiver. You may, if you think fit, take a rule on the first point. Dowdeswell, finding the inclination of the Court against him, declined to take the rule. (a) 4 M. & Scott, 356. Exch. of Pleas, 1840. The master of a ship has authority by law to pledge the cre dit of his owner, resident in to the master in an English port where the owner has no agent, if such advance of money was necessary for the prosecution of the voyage; and whether it was so or not is a question for the jury. ARTHUR and Another v. BARTON. DEBT for money lent, and on an account stated. Plea, nunquam indebitatus. At the trial before Patteson, J., at the last Merionethshire Assizes, the facts appeared to be as follows.-The defendant, a gentleman residing England, for money advanced near Portmadoc, in Merionethshire, was the owner of a coasting vessel called the Progress, which was generally employed in the conveyance of slates from Portmadoc to different places on the coast, and in bringing back return cargoes of any goods that might be required in that neighbourhood. In January, 1837, the vessel had taken out a cargo of slates, and on her return home was stranded in Bude Bay, in Cornwall. The defendant had an agent at Bude, from whom the master obtained a sum of £15, which was expended in victualling the vessel, and other necessary expenses. She proceeded on her voyage homeward, and put into Swansea harbour, where the master borrowed from the plaintiffs, (who were merchants at Swansea and Neath, and had contracted to ship on board the vessel a cargo of culm, consigned to a Mr. Williams, residing near Portmadoc), a sum of £5, which was applied as follows: 17. 7s. for loading the vessel and getting out the ballast; £1 for a pilot; 13s. 6d. for a new chart and for the repair of the compass-the chart having been lost and the compass damaged when the vessel was stranded,—and the rest for provisions, and in payments to the broker for clearing out the vessel. These payments exhausted the whole of the £5, with the exception of 2s. 6d., which the master paid over to the defendant on his arrival at Portmadoc. It appeared that the defendant had no agent at Neath or Swansea. Those places are about forty miles from Portmadoc, and a letter written there, and sent by post to the defendant, might have been answered in about four days. The master sailed for Port madoc, with a fair wind, on the day after the advance of Exch. of Pleas, the £5. For the defendant, it was contended that the action was not maintainable, for that the master of a coasting vessel, in an English port, had no authority by law to borrow money on the credit of the owner. The learned Judge reserved this point. The defendant then adduced evidence to shew that in fact the credit was expressly given by the plaintiffs to Mr. Williams, the consignee of the cargo. The learned Judge left it to the jury to say, first, whether the supply of money by the plaintiffs was obtained by the master for the necessary use of the vessel; and secondly, whether it was advanced on the credit of the defendant or of Williams: and the jury found for the plaintiff, damages 41. 17s. 6d., leave being reserved for the defendant to move to enter a nonsuit, if the Court should be of opinion that the action was not maintainable. In Michaelmas Term, Jervis obtained a rule nisi accordingly, against which, in this term, Cresswell, Welsby, and Townsend shewed cause.-The jury having found that this money was borrowed by the master, and applied, for the necessary use of the vessel, in a port where the defendant had no agent, the plaintiffs are entitled by law to charge the owner with it. The rule of law on this subject is not limited to cases where the materials are supplied or money advanced to the master in a foreign port; it is founded upon the general control of the master over the vessel, which is necessarily vested in him for the safe and due prosecution of the voyage, and the preservation of the ship and crew. Here there was no deviation from the due and proper course of the voyage, and the master obtained the money for the purpose of carrying it into effect. [Parke, B.-The law is more strict as to the borrowing of money than as to repairs of the vessel.] The principle is the same, although in the former 1840. ARTHUR บ. BARTON. Exch. of Pleas, case a more pressing necessity may be necessary to be 1840. ARTHUR v. BARTON. shewn, but that is a question for the determination of the jury. Webster v. Seekamp (a) is a distinct authority that the owner is liable for necessary repairs done to the ship in an English port, on the order of the master; and the Court assign a large meaning to the term "necessary repairs," viz. such as are reasonably fit and proper for the voyage, and such as a prudent owner himself would order if present. There, Abbott, C. J., says, "The general rule is, that the master may bind his owners for necessary repairs done, or supplies provided for the ship." And Bayley, J., "It is within the scope of his authority to order such repairs or supplies as it may reasonably be supposed that the owners, if they had had an opportunity of deciding for themselves, would have ordered." It may be said, that in the case of the advance of money, there is greater danger of its subsequent misapplication by the master; but that argument would as strongly apply to the case of an advance abroad. The master is not bound to hypothecate the ship or cargo. [Parke, B.-Is the application of the money to the purposes of the vessel anything more than strong evidence of the necessity? So, the subsequent misapplication would only be evidence that the master had not really borrowed the money for the purposes of the vessel.] It was formerly considered that a party supplying necessaries to a ship, even without any hypothecation, had not only the personal security of the owners, but also the security of the specific ship: Rich v. Coe (b), Farmer v. Davis (c): and although that doctrine is now exploded, yet the rule as to the personal liability of the owner remains unaltered, and must equally apply to an advance in an English and a foreign port. It is laid down in Abbott on Shipping (d), (without anything to restrict the application of the rule to foreign ports), that "the business of fitting out, victualling, and (a) 4 B. & Ald. 452. (c) 7 T. R. 312. |