PERSONAL Commencement of count as ante, 36.] For the tonnage of divers goods, II. RESPECTING merchandize, and chattels, of the defendant by the plaintiff before then PROPERTY. carried and conveyed upon divers parts of a certain cut or canal, navigable For the tonnage and passable from divers places to divers other places, in certain boats, of goods. (e) barges, and other vessels, for the defendant, and at his requst. [Conclude as ante, 36. Commencement of count as ante, 36.] For the passage of the defendant For a passage [or" of divers persons before then carried and conveyed by the plaintiff," on board a ship. (f) in and on board of a certain ship or vessel of the plaintiff, from divers ports and places to divers other ports and places, and at the request of the defendant. [Conclude as ante, 36. Commencement of count as ante, 36.] For the use of a certain ship or For demurvessel whereof the plaintiff was owner, (h) by the defendant before that rage. (g) time retained and kept on demurrage, with certain goods, merchandize and chattels on board thereof, for a long time before then elapsed, and at his request. [Conclude as ante, 36. Commencement of count as ante, 36.] For the lighterage of divers goods, For lighterage. merchandize, and chattels, by the plaintiff before that time carried and conveyed in certain lighters and other vessels of the plaintiff, and by him and his sailors, mariners, and servants, shipped and landed from and out of the same for the defendant, and at his request, and being &c. [Conclude as ante, 36. warehouse. Commencement of count as ante, 36.] For the lighterage, wharfage and For lighterage, warehouse-room of divers goods, merchandize, and chattels, by the plaintiff wharfage, and before that time shipped and landed in and by certain lighters and other room.(i) vessels of the plaintiff, and deposited and kept in and upon a certain wharf and certain warehouses and premises of the plaintiff, for the defendant, and at his request. [Conclude as ante, 36. (k) (e) 3 Wentw. 70. (f) Governed by rules as to freight; 5 East, 320, 321; 2 Campb. 15, 16; 3 Chitty's Com. Law, 424; Abbott on Ship. 5th edit. 206. As to the law relating to a captain or master's duty to passengers, and contract under seal as to passage, Corbyn v. Leader, 6 Car, & P. 32. (g) As to demurrage, see Abbott on Ship., by Shee; 3 Chitty's Com. Law. 427, 430; and Smith's Mercantile Law. The above count will in general suffice where there is a contract for demurrage, and such contract is not under seal; see Lear v. Yate, 3 Taunt. 389; but if the contract be under seal, the declaration must be in debt or covenant; 1 New Rep. 104; see forms, post Indebitatus assumpsit will not lie for demurrage unless there be an express contract to pay it; but if the defendant detained the ship longer than the usage of trade authorized, the remedy is by a special action; per Parke, B.; Horn v. Bensusan, 2 M. & Rob. N. P. C. 326; 9 C. & P. 709, S. C.; 2 New Rep. 258; 4 Campb. 131; 12 East, 179; 6 J. B. Moore, 415, 425; 3 C. & P. 186; Abbott, 181; and see a form, post. The common count will not suffice where the demurrage has arisen ex delicto; Harrison v. Wilson, 2 Esp. Rep. 707. For what detention the charterer of a ship is liable, see Pringle v. Mollett, 6 M. & W. 80. (h) The owners, and not the master, must sue for demurrage, or on an implied contract to pay a compensation for the detention of the vessel, where there has been no express contract; Abbott, 4th edit. 169, 170; 4 Taunt. 1; Evans v. Foster and another, 1 B. & Adol. 118. Aliter on an express contract; Jesson v. Solly, 4 Taunt. 52; see further, Chitty, jun. 3d edit. 230, note (a). (i) This form may be easily applied to a demand for wharfage, or for warehouse-room only. And see the precedent for warehouseroom, ante, 39; Morg. 26. (k) For boomage, buoys, and sea marks, see Plead. Assist. 52, 53. For moorage, see 3 Wentw. 69; and ante, 42. For pilotage, crimpage, and salvage, see post, 53 and 54. III. RESPECT. ING PERSONAL For wages as a hired servant. (m) For wages as a sailor, against the captain or owner. (n) III. RESPECTING PERSONAL SERVICES. (1) First-WAGES. Commencement of count as ante, 36.] For the wages or salary of the plaintiff, then due and payable from the defendant to the plaintiff, for the service of the plaintiff, by him done and performed as the hired servant of and for the defendant, and on his retainer. If the service has been performed on board a ship, add these words, "in and on board a certain ship or vessel." [Conclude as ante, 36. Commencement of count as ante, 36.] For the wages of the plaintiff before that time and then due and payable from the defendant to the plaintiff, for the service of the plaintiff before then done and performed as a mariner, of (1) When the demand is for wages, fees, or work and labour in particular professions, &c. it has been usual to insert a count stating concisely the nature of the service, as in the above precedents, and then to add the common count for work and labour generally, without stating the particulars, or in what character or capacity the service was performed; but the latter count would in all cases suffice; 3 Campb. 37; 2 Wils. 20; 1 New Rep. 289; 2 Saund. 350, n. 2, 373. And in the recent case of Fisher v. Snow, 3 Dowl. Rep. 29, it was considered that under a count for work done and materials found, an attorney might recover his fees for conducting an action or defence, and for preparing deeds and securities. (m) As to the wages of servants in general, if the hiring be a general one, without mention of time, it is considered to be for a year certain; and if the servant continue beyond that time, a contract for a second year will be implied; Beeston v. Collyer, 4 Bing. 311; Fawcett v. Cash, 5 B. & Ad. 904; Turner v. Robinson, id. 790; Williams v. Byrne, 7 A. & E. 177; Huttman v. Bullinois, 2 C. & P. 510. If the defendant has refused to employ the plaintiff, and the action be brought before the wages under the contract would have accrued due, or if the plaintiff was turned away without notice, pursuant to the contract, the declaration must be special; 2 East, 145; 3 C. & P. 349; and see forms, post, Spec. Ass. and notes to those forms. Where wages are payable quarterly, or at other intervals, and the servant is wrongfully discharged in the middle of the quarter, &c., he cannot recover for the remainder of the quarter, &c., on a general count for work and labour; Smith v. Hayward, 7 A. & E. 544; 2 N. & P. 432, S. C.; see also Ridgway v. Hungerford Market Co., 3 A. & E. 171; Archard v. Horner, 3 C. & P. 349; but see Gandell v. Pontigny, 4 Campb. 375; 1 Stark. 198, S. C. contra. A servant dismissed for improper conduct cannot recover any part of the salary current from the last pay day at the time of his dimissal; Ridgway v. Hungerford Market Co., 3 A. & E. 171. As to the servant's right to recover wages where the remuneration is left entirely to the master, see Taylor v. Brewer, 1 M. & S. 290; Bryant v. Flight, 5 M. & W. 114. No new contract arises by implication of law upon a simple dissolution of a special contract of hiring and service in respect of ser vices performed under such special contract previously to its being dissolved; but under certain circumstances it is a question for the jury whether the parties may not have come to a new agreement; Lambourn v. Creuden, 2 M. & G. 253. The (n) If it be against the owner of the ship, say, a certain ship or vessel of the defend. ant," and omit the words in italics. observation in the note to the last precedent is applicable to this. If the contract be under seal, and delivered as a deed, an action of debt or covenant must be brought; if it be not under seal, or not so delivered, then an action of assumpsit or debt; Abbott on Ship. 5th ed. 485. Where the defendant has refused to employ the plaintiff as seaman, or improperly dismissed him, the declaration should be special. See form, post, Spec. Ass. The plaintiff is not bound to show that the ship earned freight, the defendant must prove the negative, if such proof will furnish a defence; 7 Taunt. 319; 1 Hagg. Ad. Rep. 227; Abbott on Ship. 5th ed. 485. For the law in general, see Abbott on Shipping; Holt on Shipping; 1 Chit. Gen. Prac. 73, 74; and 2 id. 520 to 526. If there was no contract as to wages, the declaration should be for work done. As to seamen's contracts for wages, see 5 & 6 W. 4, c. 19; by the 15th section of which statute a summary remedy is given before a justice of the peace, if the claim do not exceed £20. Where a seaman, who has signed the articles of agreement required by 5 & 6 W. 4, c. 19, absolutely quits the ship without any animus revertendi after her arrival, and being moored at her port of delivery, but before her cargo has been discharged, he does not thereby incur a total forfeiture of his wages within the 9th section of that statute, but only of a month's wages under the 7th section; McDonald v. Jopling, 4 M. & W. 285. As to the right of a sailor or other person to wages where the accruing of the debt depends on a special agreement, see Cutter v. Powell, 6 T. R. 320; and the notes to that case in 2 Smith's Leading Cases. and belonging to a certain ship or vessel, whereof the defendant, during the III. RESPECTtime of such service, was master and commander, and for the defendant, and on his retainer. [Conclude as ante, 36. Commencement of count as ante, 36.] For and in respect of his the plaintiff having, at the request of the defendant, for a long time, to wit, formonths (o) then elapsed, and whilst the plaintiff served as a mariner on board the said ship or vessel of the defendant and for the defendant, relinquished his right to and not received from the defendant a great part of his daily allowance of meat, drink, and other necessaries, which the plaintiff was, during that time, entitled to receive and have as such mariner as aforesaid of and from the defendant, under and by virtue of a certain agreement before then made between the plaintiff and the defendant. [Conclude as ante, 36. ING PERSONAL For short allow ance money by a seaman. Commencement of count as ante, 36.] For the wages or salary of the For wages, as a plaintiff then due and payable from the defendant to the plaintiff, for his ship-steward or mate, against service, by him done and performed, as the steward of the said defendant, for the captain. (p) a long time before then elapsed, in and on board of a certain ship or vessel whereof the defendant was, for and during all that time, master and commander, and for the defendant, and at his request. [If at the suit of the mate, instead of the words in italics, insert "mate of." ante, 36. Conclude as Commencement of count as ante, 36.] For the wages of the plaintiff due For wages, as and owing for his service, before then done and performed by him as master captain, against the owner. (q) and commander of a certain ship or vessel for the defendant, and at his request. (r) [Conclude as ante, 36. Commencement of count as ante, 36]. For certain prize-money, wages, and reward, then due and payable from the defendant to the plaintiff, for his service before that time done and performed as quarter-master on board a certain ship or vessel of the defendant, and at his request. (s) [Conclude as ante, 36. For prize-money, wages, &c. by a quartermaster against the owner. Commencement of count as ante, 36.] For the pay or salary of the plaintiff For salary, as a then due and payable from the defendant to the plaintiff for his services quarter-master of a corps of before then done and performed as quarter-master of a certain corps, called, troops. &c., for the defendant, and at his request. (1) [Conclude as ante, 36. Commencement of count as ante, 36.] For certain pilotage and reward then For pilotage.(u) due and payable from the defendant to the plaintiff for the pilotage, mooring and unmooring of a certain ship or vessel of the defendant, by the plaintiff (0) Any time sufficient to cover the real time. (p) A purser's steward on board one of her majesty's ships cannot recover wages from the purser without express contract to pay; 2 Stark. 361. (9) What evidence sufficient to entitle him to wages, see 1 J. B. Moore, 65. (r) See observations, ante, 52, n. (n). (t) Ibid.; Plead. Assist. 52, 58. (u) As to pilotage, see 6 Geo. 4, c. 125, and 1 Taunt. 300; Peake's C. N. P. 107; 2 Chit. Com. Law, 46; Abbott on Ship. 5th ed. 148 to 161. III. RESPECT before then piloted, moored and unmoored for the defendant, and at his ING PERSONAL request. [Conclude as ante, 36. SERVICES. For crimpage. For salvage. () As an attorney and solicitor in Commencement of count as ante, 36.] For certain crimpage and reward before that time and then due and payable from the defendant to the plaintiff upon, for and in respect of the plaintiff having procured, raised and shipped certain seamen in and on board of a certain ship or vessel for the defendant, and at his request. [Conclude as ante, 36. Commencement of count as ante, 36.] For salvage of a certain anchor and cable by the plaintiff before then saved for and delivered to the defendant. [Conclude as ante, 36. Secondly-FEES. Commencement of count as ante, 36.] For the work and labour, care, diliprosecuting and gence and attendance of the plaintiff by him and his clerks before that time defending suits, done, performed, and bestowed, as the attorney and solicitor of and for the &c. and prepar- said defendant and otherwise, and upon his retainer, in and about the proing deeds, &c. (a) As attorney, for prosecuting a fiat in bankruptcy. The like for procuring a bankrupt's certificate. secuting, defending, and soliciting of divers causes and suits and certain business for the defendant, and for fees due and of right payable to the plaintiff in respect thereof. And also for other the work and labour, care, diligence and attendance of the plaintiff by him done, performed and bestowed, in and about the drawing, copying, and engrossing of divers conveyances, deeds and writings, for the defendant, and in and about other the business of the defendant, and for him, and at his request. And also for divers journies and other attendances by the plaintiff before then made, performed and given, in and about the business of the defendant, and for him and at his request. [Add a count for money paid, and the account stated, if the evidence will prove them, and conclude as ante, 36. (b) Same as preceding form, except, instead of the words "prosecuting, defending and soliciting of divers causes, suits, and businesses," say, "procuring, suing out, prosecuting, managing and conducting of a certain fiat in bankruptcy against one E. F., and in and about the" [&c. Same as in preceding form, supra, except, instead of the words "prosecuting, defending and soliciting of divers causes, suits, and businesses," say, "pro (2) In the case of salvage from perils of (a) This form will suffice in all cases by this form not applicable to the case should be omitted. If the suit were carried on for a third person at the defendant's request, this count, with a little alteration, will suffice; 2 Show. 421. But if the defendant be liable in respect of a collateral undertaking in writ ing, the declaration must be special; see 1 Saund. 211 b, and a form, post. A common count for work and labour will, however, in most cases suffice. And in Fisher v. Snow, 3 Dowl. 29, a count for work and materials, without stating particulars, was holden sufficient. And if there be any doubt as to the particular work done, a very general but com prehensive count is to be preferred; Skin. 218. (b) When an attorney may recover on the count for money paid, though his bill has not been delivered, see Tidd, 9th ed. 325; 11 East, 285; 5 B. & A. 898. ING PERSONAL curing and obtaining the certificate of conformity of the said defendant to a III. RESPECtcertain fiat in bankruptcy, before then issued and awarded against him, and also for other the work and labour, care, diligence, and attendance of the plaintiff done and performed in and about other the business of the defendant, and at his request." Same as in preceding form, supra, except, instead of the words "prosecuting, The like for prodefending, and soliciting of divers causes, suits, and businesses," say, ant's discharge curing defend"endeavouring to procure and obtain, and procuring and obtaining the said as an insolvent. defendant's discharge from imprisonment as an insolvent debtor, in pursuance of the statutes then in force for the relief of insolvent debtors in England." chequer. (c) Commencement of count as ante, 36.] For the work and labour, care, dili- As a clerk in gence, and attendance of the plaintiff, as a clerk in court, before that time court in the Exdone, performed, taken and bestowed by the plaintiff, upon the retainer and at the request of the defendant, in and about the prosecuting and defending of divers causes and suits, and transacting divers other businesses for the defendant, and for money laid out and expended and paid by the plaintiff, at the like request of the defendant, in and about the prosecuting and defending the said causes and suits, and transacting the said other businesses, and for money due from the defendant to the plaintiff for his fees due and of right payable to him in that respect: [Conclude as ante, 36. Commencement of count as ante, 36.] For the work and labour, care, diligence, and attendance of the plaintiff as a solicitor, and also as one of the sworn clerks of E. F. Esq., one of the six clerks of her Majesty's High Court of Chancery at Westminster, in the county of Middlesex, before that time done, performed and bestowed by the plaintiff, upon the retainer, and at the request of the defendant, in and about the prosecuting, defending, and soliciting of divers causes, suits, and businesses in the said court, for the defendant, and for certain fees due and of right payable to the plaintiff in respect thereof. [Conclude as ante, 36. As one of the six clerks in the Court of Chancery. (c) Commencement of count as ante, 36.] For the work and labour, care, dili- As a proctor, in gence, and attendance of the plaintiff by him done, performed, and bestowed, prosecuting an appeal to the as the proctor of and for the defendant, and upon his retainer, in and about High Court of the prosecuting of an appeal from a sentence pronounced by the Arches Delegates. (d) Court of Canterbury, and in and about other the business of the defendant, and for the defendant, and at his request, and also for fees due and of right payable from the defendant to the plaintiff in respect thereof. [Conclude as ante, 36. Commencement of count as ante, 36.] For the work and labour, care, and By an attorney, diligence of the plaintiff, by him the said plaintiff before then done, per- another attoras agent, against formed, and bestowed for the defendant, as his agent, and upon his retainer, ney. (e) As the offices of the sworn and side clerks of the Exchequer and the six clerks of the Court of Chancery have been abolished by the 1 W. 4, c. 70, and the 5 & 6 Vict. c. 103, these forms will probably be of no use, (d) 1 Wentw. 193, 194. |