the said plaintiff was owner, with certain other goods, merchandize, and chat- II. "ESPE tels on board thereof, or demurrage, for a long time before then elapsed, he TPER the said defendant undertook," &c. (Conclude as ante, 38.)

SONAL PR-
PROPERTY.

The indebitatus count is as ante, 37, inserting these words, "for the For lightlighterage of divers other goods, merchandize, and chattels, by the said plain- erage. tiff before that time carried and conveyed in certain lighters and other vessels of the said plaintiff, and by the said plaintiff shipped and landed from and out of the same for the said defendant, and at his special instance and request, and being," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, inserting these words, "had before that time carried and conveyed divers other goods, merchandize, and chattels, in certain other lighters and other vessels of the said plaintiff, and had unshipped and landed the same from and out of the same ships and other vessels for the said defendant, and at his like special instance and request, he the said defendant undertook, &c. (Conclude as ante, 38.)

erage,

house

room (12).

The indebitatus count is as ante, 37, inserting these words, "for the [65] lighterage, wharfage, and warehouse-room of divers goods, merchandize, and For lightchattels, by the said plaintiff before that time shipped and landed in and whartag, by certain lighters and other vessels of the said plaintiff, and deposited and and warekept in and upon a certain wharf, and certain warehouses and premises of the said plaintiff, 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 shipped and landed divers other goods, merchandize, and chattels in and by certain other lighters and vessels of him the said plaintiff, and had deposited and kept the same in and upon a certain other wharf, and certain other warehouses and premises of the said plaintiff, for the said defendant undertook," &c. (Conclude as ante, 38.) (o).

III. RESPECTING PERSONAL SERVICES (p).

First,-Wages.

FOR WAGES.

The indebitatus count is as ante, 37, inserting these words, "for the For wages wages or salary of the said plaintiff, before that time and then due and as a hired paya- servant

(n) This form may be easily applied to a demand for wharfage, or for warehouse-room only. And see the precedent for warehouseroom, ante, 48; Morg. 26.

(0) For boomage, buoys, and sea-marks, See Pl. Ass. 52, 3. For Moorage, See 3 Wentw. 69, and ante, 49. For pilotage, eritpage, and salvage, see post, 67. 68.

(p) When the demand is for wages, fees, or work and labor in particular professions, &c. it is usual to insert a count stating concisely the nature of the service as in the above precelents, but the usual common count for work and labor, post, 74, will perhaps 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 2. 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 defense, and for preparing deeds or securi-
ties. Since the Gen. Pleading Rules, Hill.
Term, 4 W. 4. sec. 5, prohibiting several
counts for the same debt, or subject matter,
the pleader must make his election, and adopt
a form precisely applicable, or one most com-
prehensive and general, so as to avoid all risk
of variance in the description of the service
performed. As to the apportionment of sea-
men's wages, see Tesse v. Roy, 1. Cr. M. &
R. 316.)

(9) As to the wages of servants in general,
see Chit. jun. Contr. 172-Burn, J. tit.
"Servants;" also note, post, 74.
(1 Chit.

(9).

FOR WAGES. ble from the said defendant to the said plaintiff for the service of the said plaintiff, by him before then done and performed as the hired servant of and for the said defendant and on his retainer, and being so indebted," &c. (Conclude as ante, 37.) If the service has been performed on board a ship add these words, "in and on board a certain ship or vessel."

sailor

against

[ *66 ] *The indebitatus count is as ante, 37, inserting these words "for the For wages wages of the said plaintiff before that time and then due and payable from asate the said defendant to the said plaintiff, for the service of the said plaintiff captain or before then done and performed as a mariner, of and belonging to a certain owner (7) ship or vessel, whereof the said defendant, during the time of such service, was master and commander, and for the said defendant, and on his retainer and being so indebted," &c. (Conclude as ante, 37.)

For short allowance money by

a seaman.

The indebitatus count is as ante, 37, inserting these words, "for and in respect of his the said plaintiff having, at the special instance and request of the said defendant, for a long space of time, to wit, for the space of months (s) then elapsed, and whilst he the said plaintiff served as mariner on board the ship or vessel of the said defendant, and for the said defendant relinquished his right to and not received from the said defendant a great part of his daily allowance of meat, drink, chattels, and other necessaries which he the said plaintiff was, during that time, entitled to receive and have as such mariner as aforesaid, of and from the said defendant, under and by virtue of a certain agreement before then made between the said plaintiff and the said defendant; and being so indebted, &c. (Conclude Quantum as ante, 37.)-The quantum meruit thereon, is as ante, 37, inserting as follows," had before that time relinquished his right, and had not received for a long space of time, to wit, for the space of then elapsed, and whilst the said plaintiff served as a mariner on board the said ship or vessel of the said defendant, and the said defendant another great part of his daily allowance of meat, and drink, chattels, and necessaries, which he the said plaintiff was, during that time, entitled to receive and have as such mariner aforesaid of and from the said defendant, under and by virtue of a certain agreement before then made between the said plaintiff and the said defendant, he the said defendant undertook, &c. (Conclude as ante, 38.)

meruit thereon.

Gen. Pract. 72 to 84.) The demand for
wages being specific, no quantum meruit is
added, but it is usual to add two counts for
work and labor generally, as post, 74. If the
defendant has refused to employ the plaintiff,
a special count should be inserted for not
employing. 2 East, 145, as post, 324. So
if the plaintiff was turned away without the
usual month's notice, a special count should
be inserted, as in form, post, 326. See 2
East, 145. 3 C. & P. 349. It seems, however,
that where wages are payable quarterly, or
at other intervals, and the servant is dis-
charged in the middle of the quarter, &c. he
he may recover for the remainder of the
quarter, &c. on a general count for work and
labor.-1 Stark. 198. 4 Campb. 375. S. C.
5 Bingh. 132.

The observation in the note to the last prece-
dent 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 a seal, or not so delivered, then an
action of assumpsit or debt. Abbot on Ship.
5th ed. 485 Where the defendant has refused
to employ the plaintiff as seaman, or improp-
erly dismissed him, the declaration should be
special. See form, post, 325. 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, Ship. 5th ed.
485. For the law in general, see Abbott on
Shipping.-Holt on Shipping. (1 Chitt. Gen.
Pract. 73 to 74; and 2 Id. 520 to 526. Semble
that a common count for work done would fre-
quently be preferable to that for wages.)

(s) Any time sufficient to cover the real time.

steward or

The indebitatus count is as ante, 37, inserting these words, "for the FOR WAGES. wages or salary of the said plaintiff before that time and then due For wages and payable from the said defendant to the said plaintiff for the service of as a ship the said plaintiff, by him before that time done and performed, as the stew- mate, ard of the said defendant, for a long time before then elapsed in and against the on board of a certain ship or vessel whereof the said defendant was, for and captain (t) during all that time, master and commander, and for the said defendant, [ *67 ] and on his retainer; and being so indebted," &c. (Conclude as ante, 37.) If at the suit of the mate, instead of the words in italics, insert "mate of" (See ante, 65.)

The indebitatus count, is as ante, 37, inserting these words, "for the wages For wages of the said plaintiff due and owing for his service, before then done and per- as captain formed by him the said plaintiff, as master and commander of a certain against the Kip or vessel for the said defendant, and on his retainer; and being so indebted," &c. (w). (Conclude as ante, 37.)

owner (u).

wages, &c.

The indebitatus count is as ante, 37, inserting these words, "for certain For prize prize-money, wages, and reward, before that time, and then due and payable money, from the said defendant to the said plaintiff, for the services of the said plain- by a quartiff before that time done and performed by the said plaintiff as quarter- ter-master, master on board a certain ship or vessel of the said defendant, on the retainer against the And at the special instance and request of the said defendant; and being so alebted," &c. (x). (Conclude as ante, 37.)

owner.

master of a

The indebitatus count is as ante, 37, inserting these words, "for the For salary pay or salary of the said plaintiff before that time and then due and payable as quarterfrom the said defendant to the said plaintiff for the service of the said plaintiff, before then done and performed by the said plaintiff as quarter-master of a certain corps, called, &c. for the said defendant, and at his special instance and request and being so indebted," &c. (y). (Conclude as ante, 38.)

corps of

troops.

The indebitatus count is as ante, 37, inserting these words "for certain For pilotpilotage and reward before that time and then, *due and payable from the age (2). said defendant to the said plaintiff, for the pilotage, mooring and unmooring [ *68 ] of a certain ship or vessel of the said defendant, by the said plaintiff before then piloted, moored, and unmoored for the said defendant, and on his retainer; and being so indebted," &c. (a). (Conclude as ante, 37.)

The indebitatus count is as ante, 37, inserting these words, "for certain For crimpCrimpage and reward before that time, and then due and payable from the age. id defendant to the said plaintiff, upon and for the procuring, raising, and shipping of certain seamen by the said plaintiff before that time procured, raised, and shipped in and on board of a certain ship or vessel for the said · defendant, and on his retainer; and being so indebted," &c. (b). (Conclude as ante, 37.)

FOR WAGES.

The indebitatus count is as ante, 37, inserting these words, "for salvage For sal- of a certain anchor and cable by the said plaintiff, before that time saved vage (c). for and delivered to the said defendant; and being so indebted," &c. clude as ante, 37.)

(Con

FEES.

As an at

torney, in prosecut ing and defending

suits, &c.

and preparing deeds, &c.

(4).

Secondly,-Fees.

The indebitatus count is as ante, 37, inserting these words, "for the work and labor, care, diligence, and attendance of the said plaintiff by the said plaintiff before that time done, performed, and bestowed, as the attorney and solicitor of and for the said defendant, and upon his retainer, in and about the prosecuting, defending, and soliciting of divers causes, suits, and business for the said defendant, and for fees due and of right payable to the said plaintiff in respect thereof.-And also for other the work and labor, care, diligence, and attendance of the said plaintiff before that time done, performed, and bestow[*69] ed, in and about the drawing, copying, and engrossing of divers conveyances, deeds, and writings, for the said defendant, and in and about other the business of the said defendant, and for the said defendant and at his special instance and request, &c.-And also for divers journies and other attendances by the said plaintiff before then made, performed, and given, in and about the said business, and other the business of the said defendant, and for the [70] said defendant, and at his like special instance and request, and being so inAs an at- debted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed, Quantum bestowed and given, other his work and labor, care, diligence, and attendance, the attorney and solicitor of and for the said defendant, and upon his retainer, in and about the prosecuting, defending, and soliciting of divers other causes, suits, and business, for the said defendant; and had also at the like special instance and request of the said defendant before that time done, performed and bestowed, other his work and labor, care, diligence and attendance, in and about the drawing, copying, and engrossing of divers other conveyances, deeds and writings, for the said defendant, and in and about other the business of the said defendant, and for the said defendant.-And had also at the like special instance and request of the said defendant before that time made, performed, and given divers other journies and attendances in and about other the business of the said defendant, and for the said defendant, he

torney.

The

meruit thereon.

(c) See note, ante, 65. In the case of salvage, from perils of the sea, the statutes have not taken away the common law remedy, Abbott on Ship. 5th ed. 397. 3 B. & P. 612, and the precedent there; but in the case of recapture, as the admiralty has peculiar jurisdiction over prize-causes, (see 2 Dougl. 594, &c.). the 33 Geo. 3. c. 66. s. 42, renders it necessary for the recaptor to resort to that court. As to the mode of recovering salvage, see the acts 48 Geo. 3. c. 130. 49 Geo. 3. c. 123. 53 Geo. 3. c. 87. 1 & 2 Geo. 4. c. 75. See 2 Holt. on Ship. 230. (2 Chit. Gen. 528.)

(d) This form will suffice in all cases by an attorney or solicitor against his client, for business done at law or in equity, adding one count for work and labor generally, and the

money counts; where there was no suit carried on, or no deeds prepared, &c. or no journeys taken, the parts of 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 writing, the declaration must be special, see 1 Saund. 211, b. and see a form post, 251, 2. A common count for work and labor would in all cases suffice. (3 Dougl. 59.) Ante, 65, Skin. 218. See notes, post 75, as to what is a defense to this action, &c. and see in general Chit. jun. on Contr. 2d edit. 443 to 447. 2 Chit. Gen. Prac. 26. 3 Camph. 451. M'Clel. Rep. 25.

n.

the said defendant undertook," &c. (Add a count for work and labor gen- FOR FEES. erally, and all the common counts (e) (1).

Same as in the preceding form, ante, 68, except, instead of the words [ *72 ] "prosecuting, defending, and soliciting of divers causes, suits, and business," The like say" endeavoring to procure and obtain, and procuring and obtaining the for procursaid defendant's discharge from imprisonment, as an insolvent debtor, in pur- dant's dis ing defensuance of the statute then in force for the relief of insolvent debtors in charge as England."

an insolvent.

The indebitatus count is as ante, 37, inserting these words, "for the As a witwork and labor, journies and attendance, of the said plaintiff, by him the said ness (ƒ). plaintiff before that time done, performed, bestowed, made, and given, as a witness for and on the behalf of the said defendant, and at his special instance and request, in and about the attending to give his the said plaintiff's evidence upon the trial of a certain action before them depending in the court of our said lord the king, before the king himself, and wherein the said defendant was plaintiff, and one E. F. was 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 done, performed, and bestowed other his work, labor, and attendance, and made divers other journies, and given other his attendance as a witness, upon the trial of a certain other cause wherein the said defendant was plaintiff, and the said E. F. defendant, he the said defendant undertook," &c. (Conclude as ante, 38.)

[ *74 ]

Thirdly-For Services in general.

FOR SERVI-
CES IN
GENERAL.

The indebitatus count is as ante, 37, inserting these words, "for the For work work and labor, care, and diligence of the said plaintiff, by the said plain- and labor tiff before that time done, performed, and bestowed, in and about the busi- and mate [ *75 ]

(e) When an attorney may recover on the count for money paid, though his bill has not been delivered in, see Tidd, 9th ed. 325. East, 285. 5 B. & A. 898.

11

(f) See Chit. jun. Contr. 175.-1 Taunt. 10.-A promise to pay for loss of time, is not bin ling, 1 B. & B. 515.-4 J. B. Moore, 300, S. C.-5 M. & S. 156. Collins v. Godefroy, Easter Term, K. B. 1830. (1 Barn. & Adolph. 950.) A person who is subpoenaed, and attends, bat refuses to give evidence unless his expenses are paid, may sue in assumpsit for his necessary expenses of attendance against the party who subpoenaed him. 13 East, 15.

(g) See forms, Lil. Ent. 26, 38, 43, &c.; for work and labor as an actress, 2 Rich. C. P.

83; for Forms for recovery of wages, &c. ante,
65 to 69.

As to this count in general, see fully, ante,
vol i. 303. A contract to pay money for any
description of work and labor done for the de-
fendant, may be given in evidence under this
count, and medicines, &c. administered may
be considered as materials found by the plain-
tiff, and used in and about the work and labor.
4 Campb. 37.-1 N. R. 189. Skin. 218. Ante,
vol. i. 304. When the work or service has been
completely performed for the defendant, and
accepted by him, though under a special agree-
ment, if the agreement was not under seal, and
was for payment in money, this count is suffi-
cient. Fitzg. 302.-1 Wils. 117.-Bul. N.P. 189.

(1) In Pennsylvania it has been decided in one case, that an action cannot be maintained by a gentleman of the Bar, for a compensation for services rendered in the trial of a case, and for advice; but if the client gives a note or bond for such compensation an action lies thereon. Mooney v. Lloyd, 5 Serg. & Rawle, 412. But this case has been recently overruled, and it is now settled, that an attorney at law has a legal right to recover a quantum meruit for his professional services, Gray v. Brackenridge, 2 Penn. 75, dec. Robbins v. Harvey, 5 Conn. 335.

rials (g).