AGAINST . And although the said C. D. then and there had and received the said last-mentioned horse of and from the said A. B. for the purpose last aforesaid; yet the said C. D. not regarding his said last-mentioned promise and undertakings but contriving, &c. did not nor would ride or use the said last-mentioned horse in a moderate, careful, or proper manner, but wholly neglected and refused so to do. And on the contrary thereof, he the said C. D. after the making of his said last-mentioned promise and undertaking, to wit, on, &c. aforesaid, at, &c. aforesaid, so carelessly and improperly rode and used the said last-mentioned horse, that by means thereof, the said last-mentioned horse became and was greatly lamed and hurt, and so remained and continued for a long space of time, to wit, hitherto, during all which time he the said A. B. thereby lost and was deprived of the use and benefit of the said last-mentioned horse, and also thereby the said last-mentioned horse, being of the value aforesaid, became and was greatly damaged, Third count. lessened in value, and spoiled, to wit, at, &c. aforesaid.-[If there be any doubt whether the injury were occasioned by improper riding, it is advisable to add a count nearly similar to the last, but stating the defendant's promise to have been," that whilst he should so have the use of the said last-mentioned horse as aforesaid, he would take due and proper care thereof,” and averring, “ that the defendant had the use, &c. and that whilst he so had the use, &c, he did not take dye and proper care thereof, but wholly neglected so to do. And by reason thereof the said last-mentioned horse, on, &c. became and was greatly damaged, Fourth count, to wit, at, &c. aforesaid."]-[It may also be advisable to add another count, stating, "that whereas heretofore, to wit, on, &c. at, &c. in consideration that the plaintiff, at the special, &c. had delivered to the defendant a certain other horse, &c. to be had and used by the defendant, [148] (omitting the statement for *hire) defendant undertook," &c. stating the promise, as in the count last suggested. If there be any demand for horse-hire, add the common counts ut ante, 55, and the account stated, and breach:] Locatio rei, ante, 142. 23. For not 66 That whereas heretofore, to wit, on, &c. at, &c. in consideration that the said A. B. at the special, &c. had let to hire and delivered to the taking care of said C. D certain household furniture, goods, and chattels, to wit, &c. household-fur- (enumerate) of the said A. B. of great value, to wit, of the value of niture let to hire to defen. dant (b). to L., to be had and used by the said C, D. for a certain time in that be. (6) 2 Wentw. Index, 21.~ niture, goods, and chattels, of and from the said A. B. for the purpose aforesaid, and although the time for which the same were so let to hire as aforesaid, hath long since elapsed; yet the said C. D. not regarding, &c. but contriving, &c. did not, nor would take due and proper care of the said household-furniture, goods, and chattels, or at the expiration of the time for which the same were so let to hire as aforesaid, or at any time afterwards, re-deliver the same or any part thereof to the said A. B. (although he was afterwards, to wit, on, &c. at, &c. aforesaid, requested by the said A. B. so to do,) but on the contrary thereof he the said C. D. took so little care of the said household-furniture, goods, and chattels, that by and through the mere negligence and carelessness of the said C. D. in this behalf, a great part of the said household-furniture, goods, and chattels, to wit, &c. [here specify them] of the said A. B. of great value, to wit, &c. became and were wholly lost to him the said A. B. to wit, at, &c. aforesaid.—[The second or other special counts in a case of this nature frequently vary, it may be *advisable in general to add a count stating a delivery to the defendant to be used generally, and not stating that he had the use of them for any particular purpose or time, and confining the promise and breach merely to the care of the goods. If there be any demand for the use of the furniture, and the common counts, ut ante, 55, and the account stated, and breach.] AGAINST BAILEES [*149] 142. *For that whereas the said C. D. before and at the time of the making Locatio operis of his promise and undertaking hereinafter next mentioned, was a faciendi, ante, watch-maker, and the trade and business of a watch-maker then fol- 24. Against a lowed and carried on, to wit, at, &c. And thereupon heretofore, to watch-maker for losing a wit, on, &c. at, &c. aforesaid, in consideration' that the said A. B. at the watch deliver special, &c. of the said C. D. had then and there delivered to him the ed to him to said C. D. a certain watch of him the said A. B. of great value, to wit, repair (c). of the value of L., of lawful, &c. to be repaired by him the said C. D. in the way of his said trade or business of a watch-maker, for reasonable reward, (d) to be therefore paid by the said A. B. to the said C. D. he the said C: D. undertook, &c. to repair the said watch, and to take due and proper care thereof, until the same should be returned by the said C. D. to the said A. B. Yet the said C. D. not regarding, &c. but contriving, &c. did not nor would take due and proper care of the said watch, until the same was returned by him the said C. D. to the said A. B., but on the contrary thereof, he the said C. D. after the making his said promise and undertaking, to wit, on, &c. aforesaid, at, &c. aforesaid, so carelessly and negligently behaved and conducted himself with respect to the said watch, that by and through the mere carelessness, negligence, and improper conduct of the said C. D. in that behalf, the said watch being of the value aforesaid, became, and was and still is wholly lost to the said A. B. to wit, at, &c. aforesaid. (c) 2 Wentw. Index, 20, VOL II. (d) 2 New. Rep." P AGAINST BAILEES. And whereas also afterwards, to wit, on, &c. aforesaid, at, &c. aforeSecond count, said, in consideration that the said A. B. at the special, &c. of the said for not redeli- C. D. had then and there delivered to the said C. D. a certain other vering the watch, of great value, to wit, &c. to be rectified by him the said C. D. watch. [150] for reward, to be therefore paid to him, he the said C. D: undertook, &c. to endeavour to rectify the said last-mentioned watch within a reasonable time then next following, and to deliver the same to the said A. B. whenever after such reasonable time had elapsed he the said C. D. should be thereunto requested. And although the said C. D. then and there had and received the said last-mentioned watch for the purpose last aforesaid; yet he, not regarding his said last-mentioned promise and undertaking, hath not, although a reasonable time for rectifying the said last-mentioned watch hath long since elapsed, and the said C. D. was after such reasonable time had elapsed, to wit, on, &c. aforesaid, at, &c. aforesaid, requested by the said A. B. so to do, as yet delivered to him the said A. B. the said last-mentioned watch, but hath hitherto wholly neglected and refused so to do, to wit, at, &c. aforesaid.-[Add count for money had and received. If there be reason to apprehend that the defendant has been guilty of a conversion, it may be advisable to declare in case, with a count in trover, 3 East. 62. 70:]' 25. Against a wharfinger, for losing a hamper deli vered to him to be shipped by a particu lar vessel (e). [151] For that whereas the said C. D. before and at the time of the making of his promise and undertaking hereinafter next mentioned, was wharfinger, (11) and the business of a wharfinger used, exercised, and carried on at and upon a certain wharf, commonly called or known by the name of— situate and being near to and adjoining the river. Thames, in the city of London, to wit, at, &c. And thereupon hereta-* fore, to wit, on, &c. at, &c. aforesaid, in consideration that the said A. B. at the special, &c. of the said C. D., had caused to be delivered to the said C. D. at and upon the said wharf, a certain hamper, containing *certain goods and chattels, to wit, &c. of the said A. B. of great value, to wit, of the value of L.- &c. to be by him the said C. D. safely and securely kept at and upon the said wharf, and from thence shipped in and on board of a certain ship or vessel, for the purpose of being carried and conveyed therein from the river Thames aforesaid, to a certain place called, &c. for reasonable () wharfage and reward to the (e) A wharfinger is not, like a car rier, responsible at all events for the safe custody of goods intrusted to his care-he is liable only when he is guilty of negligence. "See 4 T. R. 581. Peake's N. P. 114, See precedents, 2 Wentw. Index. 7 T. R. 171. 3 Wentw. 21. (ƒ) 2 New. Rep. 458. (11) A forwarder of goods appears to resemble a wharfinger, and like him is not responsible as a common carrier. Roberts v. Turner, 12 Johns. Rep. 232. AGAINST BAILEES. reasonable said C. D. in that behalf, he the said C. D. undertook, &c. that he the said C. D. would safely and securely keep the said hamper and its contents aforesaid, at and upon the said wharf, and would ship the same in and on board of the said ship or vessel in manner and for the purpose aforesaid. And although the said C. D. then and there had and received the said hamper and its contents aforesaid, and could, and might and ought to have shipped the same in and on board of the said ship or vessel, in manner and for the purpose aforesaid; yet the said C. D. not regarding, &c. but contriving, &c. in this behalf, did not nor would safely and securely keep the said hamper and its contents aforesaid, at and upon the said wharf, nor ship the same in and on board of the said ship or vessel, in manner and for the purpose aforesaid; but on the contrary thereof he the said C. D. so carelessly and negligently conducted himself in this behalf, that by and through the mere careless-. ness and negligence of the said C. D. and his servants in that behalf, the said hamper and its contents aforesaid, being of the value aforesaid, became and were wholly lost to the said A. B,, to wit, at, &c. aforesaid. And whereas also heretofore, to wit, on, &c. aforesaid, at, &c. Second count, aforesaid, in consideration that the said A. B. at the like special, &c. ping the hamor not shiphad caused to be delivered to the said C. D. certain other, &c. of the per on board said A. B. of great value, to wit, &c. to be by him the said C. D. safely any vessel in a and securely kept and taken care of, and shipped within a reasonable time. time then next following, in and on board of some ship or vessel, about to sail and proceed from the river Thames aforesaid, to, &c.. aforesaid, for certain reasonable reward to the said C. D. in that be. half he the said C. D. undertook, &c, safely and securely to keep the said last-mentioned, &c. till the same should be so shipped as last aforesaid, and to ship the same within a reasonable time then next following in and on board of some ship or vessel about to sail from, &c. aforesaid, to, &c. aforesaid; and although the said C. D. then and there had and received the said last-mentioned, &c. for the purpose last aforesaid, and although a reasonable time for the said C. D. to ship the said last-mentioned, &c. hath long since elapsed, and although the said C. D. could and might during that time, have shipped the said lastmentioned, &c. as last aforesaid, yet the said C. D. not regarding, &c. but contriving, &c. did not nor would within such reasonable time as aforesaid, or at any time since, ship the said last-mentioned, &c. in and on board of any ship or vessel about to sail from, &c. aforesaid, to, &c. aforesaid, but wholly neglected so to do, and the said C, D. so carelessly and negligently 'conducted himself in that behalf, that by and through the mere carelessness and negligence of the said C. D. the said lastmentioned, &c. being of the value aforesaid, became and were wholly lost to the said A. B. to wit, at, &c. aforesaid. [152] And whereas also the said C. D. heretofore, to wit, on, &c. afore- Third count, for not keepsaid, at, &c. aforesaid, in consideration that the said A. B. at the ing safely till special, &c. of the said C. D. had caused to be delivered to him the the hamper said C. D. a certain other hamper, containing certain other, &c. to wit, was shipped. |