in good order and well conditioned, (these latter words are to be Against Bail

omitted if not in the bill of lading,) of great value, to wit, of the e
value of . to be taken care of, and safely and securely car-
ried and conveyed by the said C D as such master and com-
mander as aforesaid, in and on board of the said ship or vessel,
from the river Thames aforesaid, to Liverpool aforesaid, and there,
wit, at Liverpool aforesaid, to be safely and securely deliver-
ed in the like good order and well conditioned, for the said
A B, (the dangers of the seas only excepted,)(g) and in con-
sideration thereof, and of certain freight and reward to the
said CD in that behalf, he the said C D then and there under-
took, &c. to take care of, and safely, and securely, carry and
convey, and deliver the said goods and merchandise as afore-
said, (the dangers of the seas only excepted,) and although
the said CD, so being such master of the said ship or
vessel, as aforesaid, then and there had and received the
said goods and merchandise, to be carried, conveyed and de-
livered as aforesaid, and although a reasonable time for the
carrying, conveying and delivering of the said goods and
merchandise, as aforesaid, hath long since elapsed, and the said
CD hath delivered a part of the said goods and merchandise,
tow it, -, part thereof for the said A B, at Liverpool, afore
said. Yet the said C D so being such master and commander
of the said ship or vessel as aforesaid, not regarding his duty
in that respect, nor his said promise and undertaking, but con-
triving, &c. to deceive, injure and defraud the said A B in this
behalf, did not, nor would, take care of, and safely and securely
carry or convey the residue of the said goods and merchan-
dise, so shipped in and on board of the said ship or vessel as
aforesaid, from, &c. aforesaid, to, &c. aforesaid, and there, to
wit, at Liverpool aforesaid, safely or securely deliver the same
to the said A B, (although no danger of the seas did prevent
him from so doing,) but on the contrary thereof, he the said C
D, so being such master of the said ship or vessel as aforesaid,
so carelessly and negligently behaved and conducted himself,
with respect to the said residue of the said goods and merchan-
dise, that by and through the mere carelessness, negligence
and improper conduct of the said C D and his mariners and

* 122

(5) This exception depends on the terms of the bill of lading.

ees.

* 123

Against Bail- servants in that behalf, the said residue of the said goods and ⚫ merchandise, being of great value, to wit, of the value of -. became and was wholly lost to the said A B, to wit, at, &c/ Second count. aforesaid. And whereas also heretofore, to wit, on, &c. at, &c. aforesaid, in consideration that the said A B, at the special, &c. had then and there caused to be delivered to him the said C D divers other goods and merchandise, to wit, &c. of great value, to wit, of the value of, &c. to be taken care of, and safely and securely carried and conveyed by the said C D in and on board of a certain other ship or *vessel, from the river Thames aforesaid, to Liverpool aforesaid, and there, to wit, at Liverpool aforesaid, to be safely and securely delivered for the said AB for certain freight and reward, to the said C D in that behalf, he the said CD undertook, &c. to take due and proper care of the said last-mentioned goods and merchandise, whilst he had the care and custody thereof, for the purpose aforesaid, and although the said C D then and there had and received the said last-mentioned goods and merchandise for the purpose aforesaid. Yet the said CD, not regarding his duty in that be-half, nor his said last-mentioned promise and undertaking, but contriving, &c. whilst he had the care and custody of the said lastmentioned goods and merchandise, for the purpose last aforesaid, took so little and such bad care of the said last-mentioned goods and merchandise, that by and through the mere carelessness and negligence of the said C D in that behalf, the said last-mentioned goods and merchandise, being of the value aforesaid, became and were wholly lost to the said A B, to wit, at, &c. aforesaid.

30. Against

For that whereas heretofore, to wit, on, &c. at, &c. in consian agent or deration that the said A B at the special, &c. would deliver to

auctioneer for

not duly ac- the said C D divers goods and merchandise of great value, to counting for goods deliver- Wit, of the value of -. of lawful, &c. to be sold and disposed of by the said C D, for and on the account of the said A B for reasonable reward to him the said C D in that behalf, he the said C D undertook, &c. the said A B to sell and dispose of the

ed to him to sell.(h)

(h) As to this action and declaration, see Bull. N. P. 147, 148. Carth.

89. 1 Salk. 9. 2 B. & P. 136. 1 Saund. 50.

not

For

account

* 124

said goods, wares and merchandise for the said A B and to ren- XXX.
der a just and true account of the sale thereof to the said A B, ing.
and of the monies arising from such sale whenever after the
sale thereof he the said CD should be thereunto requested.
And although the said A B confiding, &c did afterwards, to
wit, on, &c. aforesaid, at, &c. deliver the said goods and mer-
chandise to the said CD for the purpose aforesaid, and although
the said CD did afterwards, to wit, on, &c. at, &c. aforesaid, sell
and dispose of the said goods and merchandise, for and on the
account of the said A B for divers sums of money, in the whole
amounting to a large sum of money, to wit, the sum of -. of
like lawful money; yet the said C D not regarding, &c. but con-
triving, &c. hath not rendered to the said  B a just and true,
or other account of the sale of the said goods and merchandise,
or any part thereof, or of the monies arising from such sale or
any part thereof, (although he the said C D afterwards, to wit,
on, &c. at, &c. aforesaid, was requested by the said A B so
to do,) but the said C D hath hitherto wholly refused, and still
refuses so to do.

And whereas also heretofore, to wit, on, &c. aforesaid, at, Second count. &c. aforesaid, in consideration that the said A B, at the like special, &c. of the said C D had delivered to the said C D divers other goods and chattels of great value, to wit, of the value. &c. to be sold and disposed of by the said C D for the said AB, he the said C D undertook to render a just and reasonable account of the said last-mentioned goods and chattels to the said A B whenever afterwards he the said CD should be thereunto requested. And although the said C D then and there had and received the said last-mentioned goods and chattels of and from the said A B for the purpose last aforesaid; yet the said not regarding, &c. but contriving, &c. hath not rendered to the said A B a just and reasonable or other account of the said last-mentioned goods and chattels, or any part thereof, (although the said CD afterwards, to wit, on, &c. aforesaid, at &c. aforesaid was requested by the said A B so to do,) but the said CD hath hitherto wholly refused, and still wholly refuses so to do. [Add counts for money had and received-the account stated—and breach.]

31.

Against

the vendor of

an

for not mak

*For that whereas the said C D heretofore, to wit, on, &c.

estate at at, &c. caused to be put up and exposed to sale, by public aucpublic auction tion, a certain messuage or tenement, outhouses, and divers, ing a good ti- to wit, - acres of land with the appurtenances, situate, &c. Second count, (describe the premises and the conditions as in the particulars of

tle.

for not deli

titie in due

time.(i)

vering an ab- sale,) upon, and subject to the following, amongst other constract of good ditions, that is to say, that the purchaser should pay to the vendor or his agent, a deposit of. per cent. in part of the purchase-money, and should likewise pay one-half of the auction duty, and should also pay the remainder of the purchasemoney, and complete the purchase on or before the

* 126

day.

of then next, and that a good title should be made out at the expense of the vendor, and upon payment of the remainder of the purchase-money, a proper conveyance at the purchaser's expense. And the said A B in fact saith, that on such exposure to sale as aforesaid, to wit, on, &c. aforesaid, at, &c. aforesaid, he the said A B became and was the purchaser of the said tenements, with the appurtenances, upon and according to the said conditions, for a certain price, to wit, the sum of. of lawful, &c. and then and there paid to the said CD a large sum of money, to wit, the sum of →. as a deposit of 10%. per cent. in part of the said purchase-money, and then and there also paid another large sum of money, to wit, the sum of . of like lawful money, as one-half of the said auction-duty payable in that behalf. And thereupon afterwards, to wit, on the, &c. aforesaid, *at, &c. aforesaid, in consideration that the said A B, at the special, &c. of the said CD, had then and there undertaken, and faithfully promised the said CD to perform and fulfil all things in the said conditions of sale contained, on his part and behalf, as such purchaser as

1

(i) If the vendor of the estate be not prepared to produce his titledeeds, or make a good title at the appointed day, the purchaser may recover back the deposit money under the count for money had and received, 2 Esp. Rep. 641, 642. proving in the latter case, the defect in title, 4 Esp. Rep. 221. Unless there be fraud, no damages for the loss of the bargain are recoverable, 2 Bl. Rep.

1078. and to recover interest and expenses, (as to which, see 2 Bl. Rep. 1079. 4 Esp. Rep. 223.) the declaration must be special, as above, id. ibid. 1 B. & P. 306. When the action is for not making a good title, and the declaration is special, the court wil compel the plaintiff to give the defendant particulars of all objections to the title founded on matter of fact, 3 B. & P. 246.

aforesaid, to be performed and fulfilled; he the said C D un- XXXI. For not conveying. dertook, &c. to perform and fulfil all things in the said conditions of sale contained, on the vendor's part and behalf to be performed and fulfilled. And the said A B saith that although he, on, &c. aforesaid, (the first day,) and from thence until and upon the said day of then next, at, &c. aforesaid, was ready and willing to perform and fulfil all things in the said conditions contained, on his part and behalf, as such purchaser as aforesaid, to be performed and fulfilled, and to pay the remainder of the said purchase-money, and to complete the said purchase, whereof the said C D, on, &c. last aforesaid, there had notice, and was then and there requested by the said A B, to make to him a good title to the said messuage, &c. yet the said CD not regarding, &c. but contriving, &c. did not, nor would, when he was so requested as aforesaid, or at any time before or since, make, or procure to be made to the said A B, a good title to the said messuage, &c. but hath hitherto wholly neglected and refused so to do, to wit, at, &c. aforesaid, contrary to the said conditions of sale, and the said promise and undertaking of the said C D. By reason whereof he the said A B hath been deprived of all the benefits and advantages which would have arisen from the completion of the said purchase, and hath been put to great expenses, amounting in the whole to a large sum of money, to wit, the sum of —-1. of like lawful money, in endeavouring to procure such title as aforesaid, and to get the said purchase completed, and hath lost all gains and profits which he might and would otherwise have made and acquired from using and employing the said sums of money, so paid by him as deposit and duty as aforesaid, and other monies provided and kept by him the said A B for the completion of the purchase, to wit, at, &c. aforesaid. *And whereas also, heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A B, at the special, &c. had then and there bargained with the said CD for the purchase of a certain other messuage, &c. with the appurtenan- Second count. ces, at and for a large sum of money, to wit, &c. and had paid to the said CD a certain sum, to wit, &c. in part of the said last-mentioned purchase-money, and had also agreed to pay the residue thereof, and to accept a proper conveyance of the said VOL. II. [ 15 ]

* 127