SONAL PRO II. RESPEC- stance and request of the said defendant; and being so indebted," &c, (ConTING PER- clude as ante, 37.)- The quantum valebant thereon is as ante, inserting as PERTY. follows "had before that time bargained and sold divers other goods, &c. to the said defendant, and had, under and by virtue of the said last-mentioned bargain and sale, delivered the same to the said E. F. he the said defendant undertook," &c. (Conclude as ante, 38.) and sold delend ant gene For goods The indebitatus count, is as ante, 37, inserting these words, "for divers bargained goods, wares, and merchandize, by the said plaintiff, before that time bargained and sold to the said defendant, and at his special instance and request, and being so indebted," &c. (Conlude as ante, 37.) The quantum rally (x). valebant thereon is as ante, 37, inserting as follows, "had before [57] that time bargained and sold to the said defendant divers other goods, wares, and merchandize, he the said defendant undertook," &c. (Conclude as ante, 38.) For a crop turnips, &c. bar The indebitatus count is as ante, 37, inserting these words, "for a cerof grass or tain crop of grass, (or, 'turnips,' as the case is,) of the said plaintiff, before that time bargained and sold by the said plaintiff to the said defendant, and gained and at his special instance and request, and by the said defendant, under and by sold (y) virtue of that bargain and sale before that time accepted, mowed, cut down, (or, if for a crop of turnips, &c. accepted, gathered,') had, taken, and carried away; and being so indebted &c. (Conclude as ante, 37.)The quantum meruit thereon, is as ante, 37, inserting as follows, "had before that time bargained and sold to the said defendant a certain other crop of grass (or, turnips') of the said plaintiff, and that the said defendant had, under and by virtue of the said bargain and sale, accepted, mowed and cut down, the said last-mentioned crop of grass, or if for a crop of [ *59 ] turnips, accepted and gathered the said last-mentioned crop of turnips.) and had taken and carried away the same, he the said defendant undertook," &c. (Conclude as ante, 38.) For neces saries. found and The indebitatus count is as ante, 37, inserting these words, "for meat, drink, washing, lodging, and other necessaries, and goods and chattels, by provided the said plaintiff before that time found and provided for the said defendant, for defend- and at his special instance and request; and being so indebted," &c. (Conant (z). clude as ante, 37.)—The quantum meruit thereon is as ante, 37, (x) See form, Plead. Ass. 10. Distinction Atkinson v. Bell, 8 B. & Cresw. 277, cited in (y) See as to this count, 1 B. & P. 397. As statute of frauds, 29 Car. 2. c. 3. s. 4. See Chit. jun. on Contracts, 207. Chitty's Col. Stat. vol. 1. 371, and the cases in 5 B. & C. 829. (But when at the time of sale, the crop of any description is ripe, and the future growth forms no part of the substance of the contract, it is otherwise, and the crop is to be considered as goods and chattels, that may be affected by 29 Car. 2 c. 3. s. 17, but not by s 4; Smith v. Surman, 9 B. & C. 561, 577; Watts v. Friend, 10 B. & C. 109. 5 B. & A. 105. 1 Chit. Gen. Pract. 93. See 2 Johns. 452. 9 Johns. 108. 1 Penns. Rep. 57. 471. 3 Penns. Rep. 471. 1 Rawle, 256, That the declaration must be special, see Lewis Ex. v. Culbertson, 11 Serg. & Rawle, 48. (z) See the form, ante, 48, and forms, Plead. Assist. 224. Morgan, 29. SONAL PRO inserting as follows, "had before that time found and provided II. RESPEC other meat, drink, washing, lodging, and necessaries, goods and chattels, for TING PER the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) PERTY. and pro The indebitatus count is as ante, 37, inserting these words, "for meat For ne`scadrink, washing, and lodging, goods and chattels, and other necessaries, by the rics found said plaintiff before that time found and provided, at the special instance and vided for request of the said defendant, for one E. F. and divers persons; and being third perso indebted," &c. (Conclude as ante, 37)--The quantum meruit sons (a). thereon is as ante, 37, inserting as follows, "had before that time found and provided other meat, drink, washing, lodging, goods and chattels, and necessaries, for the said E. F. and divers other persons, he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, "for horse- For horse meat, stabling, care, and attendance, by the said plaintiff before that time meat and stabling found, provided, and bestowed for, in, and about the feeding and keeping (b). of divers horses, mares, geldings, and cattle, of and for the said defendant, and at his special instance and request; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, “had before that time found, provided, and bestowed other horsemeat, stabling, care, and attendance, for, in, and about the feeding and keeping divers other horses, mares, geldings, and cattle, of and for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) of cattle. The indebitatus count is as ante, 37, inserting these words, "for the For the agisting, depasturing, and feeding of divers cattle, *by the said plaintiff be- agistment fore that time agisted, depastured, and fed in certain pastures and premises (c). of the said plaintiff for the said defendant, and at his special instance, &c.; [ *60 and being so indebted," &c. (Conclude as ante, 37.) The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time agisted, depastured, and fed divers other cattle in certain other pastures and premises of the said plaintiff, for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, " for the use For the and hire of divers [horses, mares, and geldings, cattle, bridles, saddles, and hire of goods, harness, and of divers chaise and other carriages, or, of certain lighters horses, &c. and other vessels, or, ' of certain plate, linen, china, furniture,' as the case ships, furmay be,] goods and chattels, by the said plaintiff before that time let to hire niture, &c. (d). and delivered to the said defendant, and at his special instance and request, and by the said defendant, under and by virtue of that letting to hire, before then had and used; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon, is as ante, 37, inserting as follows, "had before that time let to hire and delivered to him the said defendant divers other [horses, mares, and geldings, cattle, bridles, saddles, (a) See forms, 2 Rich. C. P. 89.-Lil. Ent. 31. 39. As to the necessity for this count see ante, 56.-Stra. 127.-8 T. R. 328. Bul. N. P. 136. (b) See note, ante, page 45.-Plevl. Assist. 41-Morg, 10-Where vendor liable for, "ben contract of sale rescinded, 2 Ch ́^. Rep. 416.-2 Camp. 82.-2 Moore, 106, 582.-8 (c) See note, ante, page 45.-Morg. 27. SONAL PRO- II. RESPEC and harness, and divers other chaises and carriages, or, 'certain other lighters TING PER and other vessels,' or, certain plate, linen, china, furniture,' [as the case may be,] goods and chattels, and that the said defendant had, under and by virtue of the said last-mentioned letting to hire, before then had and used the same, he the said defendant undertook," &c. (Conclude as ante, 38.) For cover The indebitatus count is as ante, 37, inserting these words "for the ing mares. use of divers stallions of the said plaintiff, before that time had and used, by and with the permission of the said plaintiff, in and for covering of divers mares of and for the said defendant, and at his special instance and request: and being so indebt. &c." (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time suffered and permitted certain other stallions of the said plaintiff to cover certain other mares of and for the said defendant, and that the said last[ *61 ] mentioned stallions had accordingly covered the said last-mentioned mares, he the said defendant undertook," &c. (Conclude as ante, 38.) For bulling COWS. For freight, primage, average, (e). The indebitatus count is as ante, 37, inserting these words, "for the use of divers bulls of the said plaintiff, before that time used for the bulling of divers cows of the said defendant, by the permission of the said plaintiff. and at the special instance and request of the said defendant; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time permitted divers other bulls of the said plaintiff to bull divers other cows of the said defendant, and that the said last-mentioned bulls had accordingly bulled the said last-mentioned cows he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, "for certain freight [primage, an erage] before that time, and then due, and payable from the said defendant to the said plaintiff, upon, for and in respect of the carriage and conveyance of divers goods, merchandize, and chattels, by the [ 62 ] said plaintiff before that time carried and conveyed, in and on board of divers ships and vessels, (f) from divers ports and places to divers other ports and places, and there, to wit, at the said last-mentioned ports and places delivered by the said plaintiff for the said defendant, and at his special instance and request; [and for the care and attendance of the said plaintiff and his (e) As to who may sue for freight, see ante, vol. i. 5.-3 Chit. Com. Law, 416, 421. Lil. Ent. 33, 54. Plead. Ass. 70,-Morg. 23, and the law, 3 M. & S. 482.-4 Id. 141. 6 Taunt. 608.-2 Marsh. 309. 4 Campb. 337. 1 Marsh. 122. 4 Taunt. 125.-3 Chit. Com. Law, 407; and see Abbott on Shipping, index "freight." The usual form is more particular, but it seems less subject to variance to say "in and on board of divers ships and vessels, for the said defendant, and at his request," as in the above precedent, without stating the name of the ship, voyage, &c. This common count will suffice, even in an action against the indorsee of a bill of lading. 3 Bing. 383. Burrough, J. diss. See as to this count, and when the declaration should be special. 2 B. & P. 323. If there be a charter-party or contract under seal, in general the declaration must be on the deed. (f) They may be laid to the vessels of the plaintiff, though he be only captain, 6 Taunt 65. SONAL PRO PERTY. servants, in and about the loading and unloading of the said goods, merchan- II. RESPECdize, and chattels, and the delivery thereof as aforesaid,"] (g). (Conclude TING PER as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows," had before that time carried and conveyed certain other goods, merchandize, and chattels in and on board divers other ships and vessels, from divers other ports and places to divers other ports and places, and there, to wit, at the said last-mentioned ports and places, had delivered the same for the said defendant [and had bestowed other his care and attendance in and about the loading and unloading of the said last-mentioned goods, merchandize and chattels, and the delivery thereof as aforesaid,] he the said defendant undertook," &c. (Conclude as ante, 38.)—Add a count for the use and hire of ships, &c. as ante, 60.) The indebitatus count is as ante, 37, inserting these words, "for cer- For genetain general average before that time, and then and there due and payable ral average (h). from the said defendant, upon, for, and in respect of divers goods, merchandizes, and chattels, of the said defendant, having been, before that time, carried and conveyed by the said plaintiff in and on board divers other ships or vessels, in and during divers voyages for the said defendant, and at his special instance and request, and in respect of certain losses, damages, and expenses by the said plaintiff incurred, in and about the preservation of the said ship and cargo, and the said last-mentioned goods, merchandizes and chattels, froin damage and loss during the said last-mentioned voyage. And being so so indebted," &c. (Conclude as ante, 37.) The quantum meruit thereon is as ante, 37, inserting these words, "had before that time carried and conveyed divers other goods, merchandizes, and chattels of the said defendant, in and on board divers other ships or vessels, and during certain other voyages, and the said defendant undertook, and then and there faithfully had incurred certain other losses, damages, and expenses in and about the preservation of the said last-mentioned ship and cargo, goods, merchandizes, and chattels, during the said last-mentioned voyage, he the said defendant undertook," &c. (Conclude as ante, 38. Add a count for money paid and account stated.) form. [ *63 ] And whereas, also, heretofore, to wit, on, &c. at, &c. aforesaid, in con- The like in sideration that the said plaintiff, at the special instance and request of the another said defendant, had, before *that time, carried and conveyed certain other goods, merchandizes, and chattels, in and on board of certain other ships or vessels of the said plaintiff, in and during a certain other voyage, and had incurred and sustained certain losses, damages, and expenses, as to the said last-mentioned ship or vessel, in and about the preservation of the said last-mentioned goods, merchandizes, and chattels, whilst on board thereof as aforesaid, he the said defendant undertook, and then and there faithfully promised the said plaintiff to pay him so much money as he therefore reasonably deserved to have of and from the said defendant, when he the said defendant should be thereunto afterwards requested; and the said plaintiff avers, that he therefore reasonably deserved to have of and from the said defendant, the further sum of £ of like lawful money, whereof the said defendant, afterwards, to wit, on the day and year last aforesaid, at (venue) (9) If only for freight, leave out these words between brackets. (h) See special counts, post, 216, 219; for law, see Abbott on Ship. 5th edit. 342, &c.- II. RESPEC- aforesaid, had notice.-[Add counts for money paid, account stated, and usual breach.] TING PER SONAL PRO PERTY. For the The indebitatus count is as ante, 37, inserting these words, "for the tonnage of tonnage of divers goods, merchandize, and chattels, of the said defendant by goods (1) the said plaintiff, before that time carried and conveyed upon divers parts of a certain cut or canal, navigable and passable from divers places to divers other places, in certain boats, barges, and other vessels, for the said defendant, and at his special instance and request, and being so indebted," &c.— (Conclude, as ante, 37.)-The quantum meruit thereon is as ante. 37, inserting as follows, "had before that time carried and conveyed divers other goods, merchandize, and chattels, of the said defendant, upon divers other parts of the said cut or canal, in certain other boats, barges and vessels, for the said defendant, he promised the said plaintiff to pay him so much money as he therefore reasonably deserved of the said defendant to have for the tonnage thereof."—(Conclude as ante, 38.) For a pasBage on board a The indebitatus count is as ante, 37, inserting these words, "for the passage of the said defendant (or, of divers, to wit, seamen before ship (k). then carried and conveyed by the said plaintiff) in and on board of a certain ship or vessel, whereof the said plaintiff was master and commander, from divers ports and places to divers other ports and places, and at the special in[*64] stance and request of the said defendant, and being so indebted," &c.(Conclude as ante, 37.)- The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time carried and conveyed the said defendant (or, divers, to wit, other seamen')—in and on board of the said ship or vessel whereof the said plaintiff was master and commander, from divers ports and places to divers other ports and places, he the said defendant undertook," &c. (Conclude as ante, 38.) For demurrage (1). The indebitatus count is as ante, 37, inserting these words, " for the use of a certain ship or vessel whereof the said plaintiff was owner (m), by the said defendant before that 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 special instance and request and being so indebted," &c. (Conclude as ante, 37.)- The quantum meruit thereon is as ante, 37, inserting as follows "had before that time suffered and permitted the said defendant to retain and keep, and that he the said defendant had accordingly retained or kept, a certain other ship or vessel whereof (i) 3 Wentw. 70. (k) Governed by rules as to freight. 5 East, 320, 321.-2 Campb. 15, 16.-3 Chit. Com. Law, 424.-Abbot on Ship. 5th edit. 206. (As to the law relating to a captain's or master's duty to passengers, and contract under seal as to passage, Corbyn v. Leader, 6 Car. & P. 32.) (1) As to demurrage, see Abbot on Ship. 5th edit. 169, 180, &c. 3 Chit. Com. Law, 427, 430. When this general count suffices, see 3 Taunt. 387, and when not,, 2 Esp. Rep. 708. If the contract for demurrage be under seal, the declaration must be in debt on the deed, 1 New Rep. 104. Ante vol. i. 5. and see a precedent in Debt, post, 426; in Covenant, post, 528. If there be no contract for demurrage, the declaration should be special on the implied contract, to ship or unship the goods in a reasonable time. 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, 221. (m) The owners, and not the masters, 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. Aliter on an express contract. 4 Taunt. 52. -Evans v. Poster, K. B. 30th June, 1850, S. P. (And see further, Chit. jun. 2d Edit. 185, note (7). |