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AGAINST

BAILEES.

For that whereas the said C. D. before and at the time of the making of his promise and undertaking hereinafter next mentioned, was 29. Against the master and commander of a certain ship or vessel, called the "the captain of then in the river Thames, and bound from thence to Liverpool, in the a ship, on his county of Lancaster, to wit, at, &c. (the venue.) And thereupon the bill of lading said A. B. heretofore, to wit, on, &c. (the date of the bill of lading,) in goods (0). the river Thames aforesaid, to wit, at, &c. aforesaid, at the special, &c. caused to be shipped and loaded in and on board of the said ship or vessel, whereof the said C. D. then was such master or commander as afore

said, divers goods and merchandize, to wit, -—————- then in good

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order and well conditioned, (these latter words are to be omitted if not in the bill of lading) of great value, to wit, of the value of L., to be taken care of, and safely and securely carried and conveyed by the said C. D. as such master and commander as aforesaid, in and on board of the said ship or vessel, from the river Thames aforesaid, to Liverpool aforesaid, and there, to wit, at Liverpool aforesaid, to be safely and securely delivered in the like good order and well conditioned for the said A. B. (the dangers of the seas only excepted) (); and in consideration thereof, and of certain freight and reward to the said C.D. in that behalf, he the said C. D. then and there undertook, &c. to take care of, and safely and securely carry and convey, and deliver the said goods and merchandize as aforesaid, (the dangers of the seas only excepted,) and although the said C. D. so being such master of the said ship or vessel, as aforesaid, then and there had and received the said goods and merchandize, to be carried conveyed and delivered as aforesaid, and although a reasonable time for the carrying, conveying, and delivering of the said goods and merchandize, as aforesaid, hath long since elapsed, and the said C. D. hath delivered a part of the said goods and merchandize, to wit,, part thereof, for the said A.B. at Liverpool aforesaid; yet the said C. D. so being such master and commander of the said ship or vessel as aforesaid, not regarding his duty in that respect, nor his said promise and undertaking, but contriving, &c. to deceive, injure, and defraud the said A. B. in this behalf, did not nor would take care of, and safely and securely carry or convey the residue of the said goods and merchandize, so shipped in and on board of the said ship or vessel as aforesaid, from,' &c. aforesaid, to, &c. aforesaid, and there, to wit, at Liverpool afore

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(0) As to precedents in this action, see 2 Wentw. Ind. Carth. 58. Rep. Temp. Hardw. 196. 5 East. 428. The action may be brought either against the owner or the master of the ship, Carth. 58. Abbot's shipping per totum, and Index, tit. Master and Owners. If the action be against the owner, the above form will suffice, with very little VOL. II.

alteration. In coasting voyages, fre-
quently there is no bill of lading, in
which case a part of the description of
the contract will be omitted. If there
be a charty-party under seal, the action
must be founded on the deed, 1 New.
Rep. 104.

(p) This exception depends on the
terms of the bill of lading.
Q

AGAINST
BAILEES.

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said, safely or securely deliver the same to the said A. B. (although no danger of the seas did prevent him from so doing) but on the contrary thereof, he the said C. D. so being such master of the said ship or *vessel as aforesaid, so carelessly and negligently behaved and conducted himself, with respect to the said residue of the said goods and merchandize, that by and through the mere carelessness, negligence, and improper conduct of the said C. D. and his mariners and servants in that behalf, the said residue of the said goods and merchandize, being of great value, to wit, of the value of L., became and was Second count. wholly lost to the said A. B. to wit, at, &c. aforesaid. And whereas also heretofore, to wit, on, &c. at, &c. aforesaid, in consideration that the said A. B. at the special, &c. had then and there caused to be delivered to him the said C. D. divers other goods and merchandize, to wit, &c. of great value, to wit, of the value of, &c. to be taken care of, and safely and securely carried and conveyed by the said C. D in and on board of a certain other ship or vessel, from the river Thames aforesaid, to Liverpool aforesaid, and there to wit, at Liverpool aforesaid, to be safely and securely delivered for the said A. B. for certain freight and reward, to the said C. D. in that behalf, he the said C. D. undertook, &c. to take due and proper care of the said last-meptioned goods and merchandize, whilst he had the care and custody thereof, for the purpose aforesaid. And although the said C. D. then and there had and received the said last-mentioned goods and merchandize, for the purpose aforesaid; yet the said C. D. not regarding his duty in that behalf, nor his said last-mentioned promise and undertaking, but contriving, &c. whilst he had the care and custody of the said lastmentioned goods and merchandize, for the purpose last aforesaid, took so little, and such bad care of the said last-mentioned goods and merchandize, that by and through the mere carelessness and negligence of the said C. D. in that behalf, the said last-mentioned goods and merchandize, being of the value aforesaid, became and were wholly lost to the said A. B. to wit, at, &c. aforesaid.

30. Against an

For that whereas heretofore, to wit, on, &c. at, &c. in consideration agent or auc- that the said A. B. at the special, &c. would deliver to the said C. D. tioneer, for not duly account- divers goods and merchandize *of great value, to wit, of the value of ing for goods L., of lawful, &c. to be sold and disposed of by the said C. D. for delivered to

him to sell (q).

[* 162]

and on the account of the said A. B. for a reasonable reward to him the said C. D. in that behalf, he the said C. D. undertook, &c. the said A. B. to sell and dispose of the said goods, wares, and merchandize for the said A. B. and to render a true and just account of the sale thereof to the said A. B. and of the monies arising from such sale

(9) As to this action and declaration, and Pul. 136. 1 Saund. 50. Qu. When see B. N. P. 147, 8. Carth. 89. 2 Bos. not sustainable, see 2 Campb. 238.

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ACCOUNTING.

whenever after the sale thereof he the said C. D. should be thereunto 30. FOR NOT requested. And although the said A. B. confiding, &c. did afterwards, to wit, on, &c. aforesaid, at, &c. deliver the said goods and merchandize to the said C. D. for the purpose aforesaid, and although the said C. D. did afterwards, to wit, on, &c. at, &c. aforesaid sell and dispose of the said goods and merchandize, for and on the account of the said A. B. for divers sums of money in the whole amounting to a large sum of money, to wit, the sum of L., of like lawful money; and although the said A. B. afterwards to wit, on, &c. at, &c. aforesaid requested the said C. D. so to do (r); yet the said C. D. not regarding his said promise and undertaking, but contriving and craftily and subtly intending to deceive and defraud the said A. B. in this behalf, hath not rendered to the said A. B. a just and true or other account of the sale of the said goods and merchandize, or any part thereof, or of the monies arising from such sale, or any part thereof, but the said C. D. hath hitherto wholly refused, and still refuses so to do.

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And whereas also heretofore, to wit, on, &c. aforesaid, at, &c. afore- Second count. said, in consideration that the said A. B. at the like special, &c. of the said C. D. had delivered to the said C. D. divers other goods and chattels of great value, to wit, of the value, &c. to be sold and disposed of by the said C. D. for the said A. B. he the said C. D. undertook, to render a just and reasonable account of the said last-mentioned goods and chattels to the said A. B. whenever afterwards 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 goods and chattels of and from the said A. B. for the purpose last aforesaid; yet the said C. D. not regarding, &c. but contriving, &c, hath not rendered to the said A. B. a just and reasonable or other account of the said last mentioned goods and chattels, or any part thereof, (although the said C. D. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, was requested by the said A. B. so to do,) but the said C. D. hath hitherto wholly refused, and still wholly refuses so to do. [Add counts for money had and received the account stated—and breach.]

an estate at

For that whereas the said C. D. heretofore, to wit, on, &c. at,, &c. 31. Against caused to be put up and exposed to sale, by public auction, a certain the vendor of messuage or tenement, outhouses, and divers, to wit, -acres of public auction land with the appurtenances, situate, &c. (describe the premises and for not making a good title. the conditions as in the particulars of sale), upon and subject to the Second count, following, amongst other conditions, that is to say, that the purchaser for not deliver.

(r) When request necessary, 1 Taun- make a good title at the apointed day, ton. 572.

(8) See Sugden's Law of Vendors, &c. If the vendor of the estate be not prepared to produce his title deeds, or

the purchaser may recover back the
deposit money under the count for mo-
ney had and received, 2 Esp. Rep.
641, 2. proving in the latter case, the

ing an abstract of good title in due time (s).

CONVEYING.

31. FOR NOT should pay to the vendor or his agent, a deposit, of L. per cent. in part of the purchase-money, and should likewise pay one-half of the auction-duty, and should also pay the remainder of the purchase-money, and complete the purchase on or before the

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mises.

day of

then next, and that a good title should be made out at the *expense of the vendor, and upon payment of the remainder of the purchase-money, a proper conveyance at the purchaser's expense. And the said

A. B. in fact saith that of such exposure to sale as aforesaid, to wit, on, &c. aforesaid, at, &c. aforesaid, he the said A. B. became and was the purchaser of the said tenements, with the appurtenances, upon and according to the said conditions, for a certain price, to wit, the sum of L.—, of lawful, &c. and then and there paid to the said C. D. a large sum of money, to wit, the sum of L.—, as a deposit of L.10 per cent. in part of the said purchase-money, and then and there also paid another large sum of money, to wit, the sum of L.-, of like lawful Mutual pro- money, as one-half of the said auction-daty payable in that behalf. And thereupon afterwards, to wit, on the, &c. aforesaid, at, &c. aforesaid, in consideration that the said A. B. at the special, &c. of the said C. D. had then and there undertaken, and faithfully promised the said C. D. to perform and fulfil all things in the said conditions of sale contained, on his part and behalf, as such purchaser as aforesaid, to be performed and fulfilled; he the said C. D. undertook, and faithfully promised the said A. B. to perform and fulfil all things in the said conditions of sale contained, on the vendor's part and behalf to be performed and fulfilled. And the said A. B. saith that although he 'on, &c. aforesaid, (the first day,) and from thence until and upon the said next, at, &c. aforesaid, was ready and willing to perform and fulfil all things in the said conditions contained, on his part and behalf, as such purchaser as aforesaid, to be performed and fulfilled, and to pay the remainder of the said purchase-money and to complete the said purchase, whereof the said C. D. on, &c. last aforesaid, there had notice, and was then and there requested by the said A. B. to make to him a good title to the said messuage, &c.; yet the said C. D. not regarding, &c. but contriving, &c. did not nor would, when he was so requested as aforesaid, or at any time before or since, make or procure to be made to the said A. B. a good title to the said messuage, &c. but hath hitherto wholly neglected and refused so to do, to wit, at, &c. aforesaid, contrary to the *said conditions of sale, and the said promise and under

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day of then

defect in title, 4 Esp. Rep. 221.-Un-
less there be fraud, no damages for
the loss of the bargain are recoverable,
2 Bla. Rep. 1078. and to recover inter-
est and expenses, (as to which see 2
Bla. Rep. 1079. 4 Esp. Rep. 223.) the
declaration must be special, as above,

Id. ibid. 1 B. & P. 306.-When the action is for not making a good title, and the declaration is special, the court will compel the plaintiff to give the defendant particulars of all objections to the title founded on matter of fact, 3 B. & P.246.

taking of the said C. D.

CONVEYING.

Damage.

By reason whereof he the said A. B. hath 31. FOR NOT been deprived of all the benefits and advantages which would have arisen from the completion of the said purchase, and hath been put to great expenses, amounting in the whole to a large sum of money, to wit, the sum of L., of like lawful money, in endeavouring to procure such title as aforesaid, and to get the said purchase completed, and hath lost all gains and profits which he might and would otherwise have made and acquired from using and employing the said sums of money, so paid by him as deposit and duty as aforesaid, and other monies provided and kept by him the said A. B. for the completion of the purchase, to wit, at, &c. aforesaid. And whereas also Second count. heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A. B. at the special instance and request of the said C. D. had then and there bargained with the said C. D. for the purchase of a certain other messuage, &c. with the appurtenances, at and for a large sum of money, to wit, &c. and had paid to the said C. D. a certain sum, to wit, &c. in part of the last-mentioned purchase-money, and had also agreed to pay the residue thereof, and to accept a proper conveyance of the said last-mentioned messuage, &c. on or before the

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day of, in the year aforesaid, on having a good and valid title made to him to the said messuage, &c.: he the said C. D. then and there, to wit, on, &c. aforesaid, at, &c. aforesaid, undertook, &c. that he the said C. D. would procure an abstract of a good and valid title to the said last-mentioned messuage, &c. to be furnished to the said A. B. in due and convenient time for enabling him to get such title examined, and a proper conveyance of the same messuage, &c. prepared, and the said last-mentioned purchase completed on or before, &c. aforesaid; yet the said C. D. not regarding, &c. did not nor would, although, &c. procure an abstract of a good and valid title to the said last-mentioned messuage, &c. to be furnished, &c. (negativing the performance of the defendant's promise,) but therein wholly failed and made default, to wit, at, &c. *aforesaid, and the said C. D. [166] then and there wrongfully and injuriously neglected and omitted to furnish any abstract of title to such messuage, &c. as last aforesaid, for a long and unreasonable time, and until an insufficient and inadequate time remained for the examination of such title, and for the preparation of a proper conveyance, and the completion of such purchase as last aforesaid, by the day appointed for that purpose as aforesaid, according to the said last-mentioned promise of the said C. D. in that behalf, and the said A. B. in fact, further saith, that by means and in consequence of such neglect and omission as aforesaid, and by reason of E. F. (without whose joining in the conveyance of the said last-mentioned messuage, &c. a good title thereto could not be made) having since departed this life, to wit, at, &c. aforesaid, the said A. B. hath been deprived of all benefit and advantage, which would have arisen to him from the completion of the said last-mentioned purchase, and hath necessarily been put to great expenses, amounting in the whole to a large sum of money, to wit,

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