112. In an action for stores furnished not execute a regular assignment till by the captain's order, it was once held, 1810. The defendant was, however, that the register, purporting to have immediately put into possession, and been obtained by all the defendants on got the vessel registered in his own the oath of one of them, is prima facie name. In 1806, he chartered her to evidence to charge them as owners. the captain for three years, and interStokes v. Carne and others, 2 Campb. fered no more in the business. Held, 339. Ellenborough, C. J. 1809. that the defendant was not liable for

113. It has, however, been deter-stores ordered by an agent of the captain mined that entries in the custom-house during the three years. Frazer v. books in London, and at the out-port to Marsh, 2 Campb. 317. Ellenborough, which the vessel belongs, stating that C. J. 1810.

she was transferred by the original 119. And semble, that the defendant owner to the defendants, are not even would not have been liable, though the prima facie evidence of ownership in assignment had been complete. Ibid. the defendants. Frazer v. Hopkins and and 13 East, 238, S. C. Long, 2 Campb. 170. Mansfield, C. J. 1809.

Rule to set aside nonsuit refused in C. P. 2 Taunt. 5.

And see Tinkler v. Walpole, 14 East, 226; ante, PARTNER, pl. 14.

Sed vide Parish v. Crawford, 2 Stra. 1251; Abbott, L. S. 22, 3, 4, 5.

120. A mortgagee never in possession, or known to the plaintiff, is not liable for stores supplied by the captain's order. Twentyman v. Hart, 1 Stark. 366. Ellenborough, C. J. 1816.

114. The owner of a packet-boat employed by government, but of which he 121. The ship-owners are liable for receives the earnings, is liable for the stores supplied by order of their superamount of stores furnished for the ves-cargo after abandonment on caption, sel by the orders of a captain, appointed where the vessel is afterwards liberated by the postmaster-general. Stokes v. on bail. Mitchell v. Glennie, 1 Stark. Carne, ubi supra. 230. Ellenborough, C. J. 1816.

And see Parish v. Crawfard, 2 Stra. 1251; more fully reported, Abbott, L. S. 22, 5.

122. And where the vessel is seized in consequence of the illegal acts of the supercargo, but the owners recover pos115. The owner is liable for money session in the court of Admiralty, they supplied to the captain in a foreign adopt his acts, and are liable, up to the port, provided it be absolutely necessary seizure. Ibid.

for the use of the vessel. Rocher v. 123. And the court refused a rule nisi

Busher, 1 Stark. 27. Ellenborough, for a new trial, on the ground that the

C. J. 1815.

116. But the owners are not liable for money taken up by the captain, except for sums specifically advanced for the use of the vessel. Palmer and others v. Gooch, 2 Stark. 428. Abbott, C. J. 1818.

relation of master and owner did not subsist between the captain and the defendant, and that the case of a ship hired for a definite period, differs from that of a vessel chartered for a particular voyage, where the master is always ap pointed by the owner. Ibid. and 13 East, 238, S. C. rather differently re

117. Where, therefore, the captain borrows 17001. as money to be applied ported. to the use of the ship, but the repairs 124. Where the ship was chartered amounting only to 9501., the captain's for a particular voyage only, and was private account is debited with the put up by the freighter as a general balance, the owner cannot be sued by the lender for the 9501. Ibid.

And see Sir Humphrey Jervis's case, Abbott, L. S. part 2, chap. 3. sect. 6.

118. The defendant bought a ship taken in execution under a fi. fa. in 1805; but not having paid the whole of the purchase-money, the sheriff did

ship, the registered owners were held not to be liable for a tortious conversion of the plaintiff's goods by the captain, unless it could be shewn that they were received on board by some person appointed by them. Mackenzie v. Rowe and others, 2 Campb. 482. Ellenborough, C. J. 1810.

Contra, Parish v. Crawford, 2 Stra. v. Downe, 5 Esp. 41. Ellenborough, 1251; more fully reported, Abbott, C. J. 1803. L. S. 22.

125. A master employed by mortgagor in possession cannot sue the mortgagee. Annett v. Carstairs and another, 3 Camp. 354. Ellenborough, C. J. 1813.

And see Young v. Brander, 8 East, 10; Trewhella v. Rowe, 11 East, 435; M'Iver v. Humble, 16 East, 169.

And see Sparrow v. Carruthers, 2 Stra. 1236; Hurry v. Royal Exchange Assurance Company, 2 Bos. & Bul. 430; Strong v. Natally, 1 N. R. 16; Robinson v. Turpin, Abbott, L. S. 261.

I. AUTHORITY OF MASTER.

132. Semble, that the captain of an

G. (c) Liability of owner for misfea- Indianan may imprison a passenger

sance.

who refuses to take the post assigned to him on the approach of an enemy. Boyce v. Bayliffe, 1 Campb. 60. El

126. Semble, that the owner of a barge is not responsible for an injury occa-lenborough, C. J. 1807. sioned by the negligence of a person to whom he has lent her. Scott v. Scott and others, 2 Stark. 438. Best, J. 1818.

H. LIABILITY OF MASTER.
(And see ante, G. (a).)

K. SEAMEN'S WAGES.

133. No action lies upon an express promise to pay a seaman extra wages, in consideration that he will exert himself in an extraordinary manner for the 127. The captain is not responsible preservation of the ship. Harris v. for a loss occasioned by the negligence of Watson, Peake, 72. Kenyon, C. J. the pilot. Aldrich v. Simmons, 1 Stark. 1791. 210. Gibbs, C. J. 1816.

(And see ante, Sheriff, pl. 4.)
134. Nor when the contract is made

128. An action lies against the master of a vessel for purposely firing at the on shore, and the extra work is occanatives on a foreign coast, and thereby sioned by the desertion of part of the preventing them from trading with the crew. Stilk v. Meyrick, 6 Esp. 129, plaintiff. Tarleton and others v. M'Gaw- and 2 Campb. 317. Ellenborough, ley, Peake, 205. Kenyon, C. J. 1793. C. J. 1809.

129. Although it appear that the de- 135. It might perhaps be otherwise if fendant had not conformed to the laws the remainder of the crew were disof that country, by paying a duty im-charged by the captain. Ibid. posed upon licences to trade. Ibid.

And see Dacosta v. Newnham, 2 T.

And see Abbott, L. S. 451.

130. By the custom of the river R. 407, 10, 3. Thames, masters are bound to guard 136. Where, by a ship's articles, no goods and watch goods in lighters sent wages are to be paid until the vessel by the consignees, until the loading is reaches her ultimate port of destination, complete. A master tells a lighterman and the master wrongfully dismisses a that he has not hands enough to take seaman, the wages are payable immecharge of the goods; the lighterman diately. Sigard v. Roberts, 3 Esp. 71, returns no answer; the master remains 3. Eldon, C. J. 1799. liable. Catley and another v. Wintringham, Peake, 150. Kenyon, C. J. 1792. 131. But where it is proved to be the custom of wharfingers when goods are sent to be forwarded coastwise, to deliver them to the mates of the coasters, and not to ship the goods themselves, Sed vide Chandler v. Meade, cited 2 or make any charge for shipping, the Lord Raym. 1211; Curling v. Long, responsibility of the wharfinger ceases 1 Bos. & Pul. 634, 7.

137. Where a ship is recaptured and reaches her port of destination,__the seamen are entitled to wages. Bergstrom v. Mills, 3 Esp. 37. Eldon, C. J. 1799.

with the delivery to the mate, though And see Pratt v. Cuff, 2 Law Jourthe goods are lost before they are car-nal, 415, cited in Thompson v. Rowried off the wharf. Cobban and another croft, 4 East, 43; Beale v. Thompson,

4 East, 546, 53; S. C. 1 Smith, 144,] 144. Where mariners enter into a spe144, 50; Johnson v. Broderick, 4 East, cific contract, by which no wages are to 566; S. C. 1 Smith, 144, 53; Molloy, be received until their return, and they lib. 2. c. 4. sect. 13, 14; The Friends, are prevented by the master from comBell, 4 Rob. A. R. 143. pleting the voyage, they cannot recover the wages in indebitatus assumpsit, but must declare specially. Ibid.

And the court of K. B. refused a rule to set aside nonsuit. 2 East, 145.

138. A seaman is entitled to wages during a hostile embargo, while he was imprisoned on shore, if the crew were afterwards restored, and the ship completed the voyage and earned freight 145. Where the master and mariners without shewing the nature of the embargo. Delamainer v. Winteringham, 4 Campb. 186. Ellenborough, C. J.

1815.

are to receive a proportion of the produce of the voyage in lieu of wages, the latter may sue the former as soon as the account is liquidated. Wilkinson v.

N. It lies upon the defendant to Frasier, 4 Esp. 183. Alvanley, C. J. prove that no freight was earned. 1802.

Brown v. Millner, 7 Taunt. 319, 11 And see Morse v. Wilson, 4 T. R.
Moore, 65. S. C.
353; Waugh v. Carver, 2 H. Bl. 235;
Hesketh v. Blanchard, 4 East, 144;
WITNESS, C. (h).

139. Semble, that a foreign seaman serving in a British ship, who, upon the capture of the ship, enters into the ene146. Mariners contract with the capmy's service, forfeits all claim to wages, tain of a whaler for a share of the net whatever may be the ultimate fate of proceeds, provided they serve faithfully. the ship. Bergstrom v. Mills, ubi supra. Money had and received will not lie 140. A licence from the chief magis- against the owner, who disposes of the trate of a port in the West Indies, au- cargo for the benefit of all concerned, thorizing the master of a vessel to en-unless defendant has admitted the faithgage seamen at more than double the ful service; the declaration should be usual rate, must specify the wages to special. Evans v. Bennett, 1 Campb. be given. Rodgers v. Lacy, 3 Esp. 43. 300. Ellenborough, C. J. 1808. Eidon, C. J. 1799.

And the court of C. P. refused a rule to set aside a nonsuit directed on the ground of the nullity of a licence to the master to engage seamen on the best terms he could. Ibid. and 2 Bos. & Pul. 57.

141. A seaman sent on shore on duty, requests to be permitted to stay there to get some food, having had none in the course of the day. Permission is refused, and he remains there till the next morning, when he returns to the ship, but is not received. This is no desertion. Sigard v. Roberts, ubi supra.

142. Nor if he leave the ship on account of inhuman treatment. Linland v. Stephens, 3 Esp. 269. Kenyon, C. J. 1801.

143. If foreign seamen enter into a written agreement with the master, a collateral parol agreement, made in contravention of the laws of their own country, cannot be enforced. Hulle v. Heightman, 4 Esp. 75. Le Blanc, J. 1801.

S. C. Abbott, L. S. 463.

147. The rule that wages are not payable unless freight be earned, holds where the voyage is abandoned on account of unseaworthiness. Eaken v. Thom, 5 Esp. 6. Ellenborough, C. J. 1803.

148. But semble, that in such case the owner would be liable to a special action at the suit of a seaman who had thereby lost his wages. Ibid.

149. And if, after the voyage has been abandoned, a seaman be desired to remain on board for a specific purpose, he may recover for work and labour. Ibid.

150. A mariner, who is also a sailmaker, cannot, in the latter capacity, claim a sum beyond the wages mentioned in the articles, as gratuity wages, though such a claim be supported by usage, and by an express promise on the part of the owner. Elsworth, executor, v. Woolmore and another, 5 Esp. 84. Alvanley, C. J. 1803.

S. C. Abbott, L. S. 448.

Acc. White v. Wilson, 2 Bos. & Pul. 116; 2 Rob. A. R. 241.

And see ante, pl. 43, 4.

157. After a vessel has been wrecked,

151. By the ship's articles no seaman was to be entitled to demand his wages until twenty days after arrival. Held, the captain gives a mariner an order that before the expiration of that period upon the owner for the amount of his he may sue for wages which the de- wages. To this order is subjoined an fendant has admitted to be due and of- acknowledgment, that the mariner had fered to pay. White v. Mattison, 2 served 15 months upon a monthly hiring Stark. 325. Ellenborough, C. J. 1818. by himself. As from the loss of the Sed vide ante, ASSUMPSIT, pl. 1. vessel no prima facie right to wages ap152. Though by 2 Geo. II. cap. 36. peared, it was held, that no action could sect. 13. it is provided, that no seaman be maintained against the captain, or mariner belonging to any merchant without proving a demand on the owner, vessel shall, for entering into the ser-the drawee. Forsboom v. Kruger, 3 vice of his majesty, on board any of his Campb. 197. Ellenborough, C. J. ships, forfeit the wages due to him 1812. during the time of his service in such vessel, and that such entry shall not be deemed a desertion, yet where a seaman is impressed from the merchant service in the course of a voyage, he holds his claim to wages pro tanto, subject to being devested by the non-arrival of the vessel. Dunkley v. Bulwer and Lloyd, 6 Esp. 86, 2 Campb. 320, n. Anon, but S. C. Ellenborough, C. J. 1806.

And see Wiggins v. Ingleton, 2 Lord Raymond, 1211.

L. GENERAL AVERAGE.

158. Semble, that assumpsit for general average lies for one shipper against another. Dobson and others v. Wilson, 3 Campb. 480. Ellenborough, C. J. 1813.

159. But no contribution can be demanded for the value of goods which the captain sells to redeem himself from imprisonment. Ibid.

And see Covington v. Roberts, 2 N.

153. In an action for wages, the plaintiff may, under this statute, go into R. 378. evidence of the articles, without giving notice to produce them. Bowman v. Manzelman, 2 Campb. 315. Ellenborough, C. J. 1809.

154. The statute does not apply to the case of a British seaman entering on board a foreign vessel in a British port. Dickman v. Benson, 3 Campb. 290. Ellenborough, C. J. 1812.

M. SHIP-BUilder.

(And see ante, EVIDENCE, pl. 210; INSURANCE, pl. 224, 225.)

M. (a) Liability of, for negligence.

160. The proprietor of a dry dock into which a vessel is put for repair, is 155. Where a seaman has forfeited answerable for an injury arising in the his wages, and the captain afterwards day-time from the bursting in of the employs him without reserving to him-dock-gates, though the gates were strong self a right to insist on the forfeiture, enough to have resisted the ordinary the forfeiture is waved. Miller v. pressure of the water; if the accident Brant, 2 Campb. 590. Ellenborough,

C. J. 1811.

156. A seaman at Gottenburg enters into articles of agreement with the master of a foreign vessel for a voyage to England, whereby he undertakes not to sue the captain for wages till their return to G. Held, that no action can be maintained here for the wages in contravention of their stipulation. Johnson v. Machielsne, 3 Campb. 44. Ellenborough, C. J. 1811.

S. P. Gienar v. Meyer, 2 H. Bla.

might have been prevented, had a sufficient number of men been on the spot. Leek and another v. Maestaer, 1 Campb. 138. Ellenborough, C. J. 1807.

And see 1 Stra. 128; Bull. N. P. 69.

SMUGGLING.

(And see ante, BILLS AND NOTES, pl. 100; EVIDENCE, pl. 10, 340; INSURANCE, pl. 190; SHIP, pl. 51, 76, 129.

D. BILLS AND NOTES.

E. OTHER INSTRUMENTS.

A. DEEDS.

1. A fraudulent conveyance cannot be read to prove an act of bankruptcy, 1. Upon an information for obstruct- unless it be stamped. Whitwell and ing custom-house officers in the execu- others, assignees, &c. v. Dimsdale and tion of their duty, the defendant will others, Peake, 168. Kenyon, C. J. 1792. not be permitted to inquire the name of 2. A deed not bearing the stamp apthe informer, or to go into the question, propriated to the instrument, cannot be whether the goods were smuggled or received in evidence, though it bear a not. Rex v. Akers, 6 Esp. 125. Ken-stamp of equal value. Robinson v. yon, C. J. 1790. Drybrough, i Esp. 243. Kenyon, C.

2. A foreigner selling goods abroad, J. 1794. and packing them by the directions of And the court of K. B. set aside a the vendor, in a particular manner, for nominal verdict taken for the plaintiff. the purpose of facilitating the smuggling Ibid. and 6 T. R. of the articles into this country, cannot recover the price. Bernard et ult. v. Reed, 1 Esp. 91. Kenyon, C. J. 1794. S. P. Waymell v. Reed, 5 T. R. 599. And see Holman v. Johnson, Cowp. 344; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466.

3. But in an action for not accounting for goods delivered to the master of a ship to be sold by him abroad, it is no defence that they were exported without paying duties. Catlin, spinster, v. Bell, 4 Campb. 183. Ellenborough, C. J. 1815.

4. Unless the evasion formed part of the contract. Ibid.

5. If the exportation of a particular sort of goods, without the king's licence, be prohibited, a licence will be presumed upon proof of such goods having been regularly entered outwards at the custom-house. Van Omeron v. Dowick and others, 2 Campb. 44. Ellenborough, C. J. 1809.

And see Attorney General v. Sheriff, Forrest, 43; ante, EVIDENCE, pl. 340.

STAMPS.

A. DEEDS.

B. AGREEMENTS.
C. RECEIPTS.

N. But by 37 Geo. III. cap. 136. S. 1. such a deed might have been restamped upon payment of a penalty of 51.; and now, by 43 Geo. III. cap. 127. s. 5. it may be restamped without a a penalty.

And by sect. 6. a stamp of greater value, if belonging to the same denomination, is valid.

And see Doe v. Whittingham, 4 Taunt. 20.

3. A count for necessaries furnished for the defendant's apprentice, cannot be supported, if it appear that there was no stamped indenture. Aldridge, pauper, v. Ewen, 3 Esp. 188. Kenyon, C. J. 1800.

N. The stamp duty is to be paid by the master, not by the parent. Keele v. -, K. B. T. T. 1819.

4. An indorsement upon a conveyance in trust, limiting the powers of the trustee, need not be stamped. Herne et alt. v. Hale, 3 Esp. 237. Kenyon, C. J. 1800.

5. A bond conditioned for the safe custody and production of a box, containing the subscriptions of a benefit club, is within the exemption in 33 Geo. III. 54. s. 4. Carter v. Bond, 4 cap. Esp. 253. Ellenborough, C. J. 1803. 6. A bond conditioned for not converting a house to a particular purpose does not require ad valorem stamp. Hughes v. King, 1 Stark. 118. Ellenborough, C. J. 1815.