learned judge, they returned a verdict for the plaintiff for 147. in respect of four months' service from the 18th of December, 1855, when the change of ownership took place,-leave being reserved to the defendant to move to enter a nonsuit or a verdict for him, if the court should be of opinion that there was no evidence to sustain the verdict for the plaintiff.

Edward James, Q. C., accordingly, in Easter Term last, obtained a rule nisi to enter a nonsuit or a verdict for the defendant, on the ground "that there was no evidence to justify a verdict for the plaintiff;" or for a new trial, on the ground that, "if there was any such evidence, the same should have been left to the jury;" or why the damages should not be reduced as the court should direct.

Brett now showed cause.-There was abundant evidence to warrant the verdict. The provisions as to the discharge of seamen and payment of wages are contained in the 170th, 171st, and 172d sections of the 17 & 18 Vict. c. 104. The 170th section enacts, that, "in the case of all British foreign-going ships, in whatever part of Her Majesty's dominions the same are registered, all seamen discharged in the united *kingdom shall be discharged and receive their wages in the

*781] presence of a shipping-master duly appointed under this act,

except in cases where some competent court otherwise directs; and any master or owner of any such ship who discharges any seaman belonging thereto, or, except as aforesaid, pays his wages within the united kingdom in any other manner, shall incur a penalty not exceeding 107.; and, in the case of home-trade ships, seamen may, if the owner or master so desires, be discharged and receive their wages in like manner." The 171st section enacts, that "every master shall, not less than twenty-four hours before paying off or discharging any seaman, deliver to him, or, if

to be discharged before a shipping-master, to such shipping-master, a full and true account, in a form sanctioned by the board of trade, of his wages and of all deductions to be made therefrom on any account whatever, and in default shall for each offence incur a penalty not exceeding 51.; and no deduction from the wages of any seaman (except in respect of any matter happening after such delivery) shall be allowed unless it is included in the account so delivered; and the master shall, during the voyage, enter the various matters in respect of which such deductions are made, with the amounts of the respective deductions, as they occur, in a book to be kept for that purpose, and shall, if required, produce such book at the time of the payment of wages, and also upon the hearing before any competent authority of any complaint or question relating to such payments." And the 172d section enacts, that, "upon the discharge of any seaman, or upon payment of his wages, the master shall sign and give him a certificate of his discharge, in a form sanctioned by the board of trade, specifying the period of his service and the time and place of his discharge; and, if any master fails to sign and give to any such seaman such certificate of discharge, he shall for *782] *each such offence incur a penalty not exceeding 101.; and the

master shall also, upon the discharge of every certified mate whose certificate of competency or service has been delivered to and retained by him, return such certificate, and shall in default incur a penalty not exceeding 201." [COCKBURN, C. J.-Do not these sections. presuppose that the same owners continue in possession of the ship?]

*

There certainly is nothing in them which points to a change of ownership. The case of a sale of a ship abroad is provided for by s. 205, which enacts, that, "whenever any British ship is transferred or disposed of at any place out of Her Majesty's dominions, and any seaman or apprentice belonging thereto does not in the presence of some British consular officer, or, if there is no such consular officer there, in the presence of one or more respectable British merchants residing at the place, and not interested in the said ship, signify his consent in writing to complete the voyage if continued, and whenever the service of any seaman or apprentice belonging to any British ship terminates at any place out of Her Majesty's dominions, the master shall give to each such seaman or apprentice a certificate of discharge in the form sanctioned by the board of trade as aforesaid, and, in the case of any certified mate whose certificate he has retained, shall return such certificate to him, and shall also, besides paying the wages to which such seaman or apprentice is entitled, either provide him with adequate employment on board some other British ship bound to the port in Her Majesty's dominions at which he was originally shipped, or to such other port in the united kingdom as is agreed upon by him, or furnish the means of sending him back to such port, or provide him with a passage home, or deposit with such consular officer, or such merchant or merchants as aforesaid, such a sum of money as is by such officer or merchants deemed sufficient to defray the *expenses of his subsistence and passage home; and such consular officer or merchants shall endorse upon the agreement of [*783 the ship which the seaman or apprentice is leaving the particulars of such payment, provision, or deposit; and, if the master refuses or neglects to comply with the requirements of this section, such expenses as last aforesaid, if defrayed by such consular officer or by any other person, shall, unless such seaman or apprentice has been guilty of barratry, be a charge upon the ship to which such seaman or apprentice belonged and upon the owner for the time being thereof, and may be recovered against such owners, with costs, at the suit of the consular officer or other person defraying such expenses, or, in case the same has been allowed to the consular officer out of the public moneys, as a debt due to Her Majesty, either by ordinary process of law or in the manner in which seamen are hereby enabled to recover wages; and such expenses, if defrayed by the seaman or apprentice, shall be recoverable as wages due to him." It will be contended on the other side, that that section applies only to sales effected abroad. That, however, cannot have been the intention of the legislature. [COCKBURN, C. J.-The grammatical construction of the words undoubtedly is so. It may be that the ship is sold to foreign owners, and that a foreign captain is put in command.] The whole of the provisions of this part of the act show that it was the intention of the legislature to transfer to the new owners all the liabilities of the ship: and this is obviously just, seeing that they will receive the whole of the freight on the completion of the voyage. Besides, independently of the act, the former owners having disabled themselves from performing the contract with the crew, the latter were discharged from the performance of the contract on their part: Planché v. Colburn, 8 Bingh. 14 (E. C. L. R. vol. 21), 1 M. & Scott 51 (E. C. L. R. vol. 28), 5 C. & P. 58 (E. C. L. R. vol. 24); Keys v. *Harwood, 2 C. B. 905 (E. C. L. R. vol. 52): but, having performed [*784

services on board the vessel after the defendant had become the owner, they would be entitled, in the absence of any new contract, to recover upon a quantum meruit in respect of the services actually performed by them since the transfer of the ownership: Jesse v. Roy, 1 C. M. & R. 316. Apart from the statute, the purchaser of the ship was not bound to continue the services of the crew; but, having by his accredited agent done so, he is responsible. The fact of the plaintiff's having been allowed to remain doing duty on board the vessel under one who must be assumed to have been the defendant's agent, created a contract between them which would at all events entitle the plaintiff to sue for wages pro ratâ. [WILLES, J.-Two questions arise,-first, whether there was any contract, express or implied, with the new owner,secondly, whether, if there was a contract, it was upon the terms of the former contract, or upon a quantum meruit.] In Hillyard v. Mount, 3 C. & P. 93 (E. C. L. R. vol. 14), by a clause in the ship's articles of a South Sea whaler, the seamen serving on board were to lose their wages if they did not return with the ship to the port of London: after serving thirty-seven months, some of the seamen were, with the consent of the captain, exchanged into another ship for others belonging to that ship; and it was held, that, if these seamen lost their wages under the articles, they might recover a reasonable compensation for their services, on the count for work and labour. Hartley v. Harman, 11 Ad. & E. 798 (E. C. L. R. vol. 39), 3 P. & D. 567, was also referred to.

Edward James, Q. C., and Kemplay, in support of the rule.-The plaintiff shipped on board the Constance Emma for a voyage from Aden to Suez, and thence to Bombay or Moulmein. The circumstance of the defendant having at Liverpool become the purchaser of *the *785] vessel whilst at Suez, did not constitute the master or the mate his agent nor was there any evidence of any adoption by the plaintiff of their acts. The mere act of transfer clearly does not make the captain agent for the transferree: Mitcheson v. Oliver, 5 Ellis & B. 519 (E. C. L. R. vol. 85); Myers v. Willis, 17 C. B. 77 (E. C. L. R. vol. 84). [COCKBURN, C. J.-Must not the transferree be taken to adopt the master as his agent until some communication can take place? Many disastrous consequences might result from a contrary doctrine.] How can the master be said to be agent to a man with whom he has had no previous communication? The seaman is not left without remedy: the master is always liable to him for wages. Cutter v. Powell, 6 T. R. 320, is a distinct authority to show that a seaman can claim no wages either upon the special contract or upon a quantum meruit until the voyage is completed. The 205th section of the Merchant Shipping Act has nothing to do with the question. [WILLES, J.-Certainly not.] To entitle him to sustain this verdict, the plaintiff must make out an engagement, express or implied, on the part of the defendant to pay him wages de die in diem. Assuming that there was here a contract between Townsend the new master and the plaintiff, it must be taken to have been upon the footing of the original articles. No contract can be implied under such circumstances: Lamburn v. Cruden, 2 M. & G. 235 (E. C. L. R. vol. 40), 2 Scott N. R. 533. [WILLES, J.-Though the law will not imply such a contract, it by no means follows that a jury may not.] Nothing that passed with Townsend could warrant the jury in implying any new contract. [COCKBURN, C. J.-Does not the ques

tion turn rather upon what took place before Townsend arrived out?] It is submitted not. There was no evidence to warrant the verdict. COCKBURN, C. J.-I am of opinion that this rule should *be discharged, provided that the plaintiff will consent to the damages [*786 being reduced by so much of the wages as were covered by the period intervening between the date of the transfer of the ship to the defendant and the time when the notice of the change of ownership reached Suez, that is, when Parr arrived there and the fact of the transfer of the ship to the defendant became notorious to all parties concerned. 1 think there was evidence from which the jury might infer that Parr was the agent of the defendant, having gone out for the purpose of protecting the defendant's interests: and, Parr being there as agent of the defendant, the plaintiff, whose contract with the former owner was at an end, must be taken to have been adopted by Parr as a person doing a seaman's duty on board the ship; and the question is, what was the nature of the contract under which that duty was performed. I am very much disposed to think that a person who becomes the purchaser of a ship while at sea must be taken by intendment to adopt the master as his agent until his authority can be determined by the arrival of some one empowered by the new owner to supersede him; and therefore I think that Abernethy, the former master, or the mate, were authorized to engage the crew on behalf of the defendant. It is not necessary, however, to go to that extent on the present occasion, because I think there was evidence that this plaintiff was employed and performed service under a person having authority and acting as the agent of the defendant in that behalf. Conceding that a seaman engaged for a voyage must complete that voyage before he is entitled to claim any wages, here it seems to me that no such question arises, because the original contract was put an end to, and any services performed by the seamen after that event were performed under a new contract. It may well be, that, the original owner having put it out of his power to perform his [*787 contract with the seamen, they might maintain actions against him but, if the seamen chose to serve under some one else, it was perfectly competent to them to do so. Now, here, the plaintiff elected to continue on board the vessel in the service of the new owner. was the nature of the contract under which such new services were performed? It is clear that there were no new articles; but it is suggested that the employment of the plaintiff must be assumed to have been under the terms of the old articles. If that were so, the plaintiff might be bound to complete the voyage before any claim for wages would arise: but it appears to me that there is no evidence from which we would be warranted in inferring that it was ever communicated to him that he was to continue his services on the terms of the old articles. There being, then, no special contract, and the plaintiff having performed services on board the defendant's vessel, and that under a person acting with the sanction and under the authority of the defendant, there was abundant evidence of an implied promise to pay the plaintiff a reasonable compensation for such services. I therefore think the plaintiff is entitled to retain his verdict for the amount of wages earned by him from the period when it became known at Suez that the defendant was the owner until he left the ship with the consent of the new master. With the deduction suggested, therefore, the verdict will stand.

What

WILLIAMS, J.-I also am of opinion that the verdict ought not to be disturbed, provided it be limited to the amount of wages accruing to the plaintiff after the time when the change of ownership was notified to him. I come to this conclusion because I think there was some evidence from which the jury might if so minded have implied an agreement on the part of the defendant, *through his agent, to recompense the *788] plaintiff for his services from that period. When Townsend the new master came out, he found the plaintiff doing duty on board the ship for the benefit of the owner; and he continued such service down to the 19th of April, 1856, when he finally left the ship. If it had been found as a fact that the plaintiff was engaged by Townsend for the remainder of the voyage, although he left with the consent of the master, I should have been of opinion that he was not entitled to recover. But an agreement was come to at the trial that the case should not go to the jury, but that the verdict should stand for the plaintiff if there was any evidence on which the jury might imply a contract which would entitle the plaintiff to recover on a quantum meruit. I think there was ample evidence to sustain the verdict for the amount mentioned. It is somewhat curious to observe that the conclusion we arrive at has nothing whatever to do with the controversy at the trial, but is quite independent of the construction to be put upon the provisions of the Merchant Shipping Act, of the question of desertion, and of the seaworthiness of the ship. All that has nothing to do with the ground upon which we decide this case, viz., that there was evidence from which the jury were warranted in implying a promise to pay the plaintiff for the services rendered by him on board the ship for the defendant, from the time he became aware of the change of ownership down to the time of his leaving her.

WILLES, J.-I also am of opinion that the verdict should stand for the amount for which it was taken, less 37. 10s. for a month's wages. It is quite clear that the defendant bought the vessel with the view of getting possession of her and using her for his own purposes. It is just, there*789] fore, to presume that it was *his intention to bear the burthen of the expenses incurred by the ship from that time, and that the people who were doing duty on board the vessel should continue to do duty as his servants. Immediately the notice of the change of ownership arrived out at Suez that intention was communicated to the sailors, and it was understood that the crew should continue to work the vessel as the servants of the new owner. That state of things might, I think, reasonably be supposed to continue until some agent should arrive out, authorized by the new owner to act for him. It appears that one Parr, who was properly treated as the defendant's agent, arrived at Suez on the 10th of January, 1856, and that, upon his arrival, Abernethy, the original master, left the vessel, the mate and the rest of the crew continuing on board. I think the jury would have been well warranted in coming to the conclusion that there was a new contract between the defendant and the plaintiff that the latter should be paid for his work from the time he received notice that the defendant had become the owner of the vessel. Assuming that to be so, I think the jury would have been well warranted in implying a contract between the plaintiff and the defendant under which the former would be entitled to recover wages pro ratâ from the time when the change of ownership was com