consequence of not adopting a cautious and official mode in so doing; it is my direction that the master attend and pay most particular attention to this branch of his duty; and whenever any treasure be brought on board, that he, with the officers of the watch, and the purser, attend in my fore cabin, and there count out every box, or bag, dollar, and coin so received, which he shall describe by number, mark, and contents in the log-book, signed by the officers of the watch; and having so counted and re-packed all such treasures, he is to pay most particular attention to its stowage in such place as shall be pointed out by the commanding officer, and not leave the place until safely and securely lodged, which he is to report to me if on board, or the first lieutenant in my absence.'

21st. Whenever any officer may

be desirous of making any official communication with the commander in chief or other public department, it shall be done by letter to me, that I may forward or withhold the same as I shall judge fit for his majesty's service."

30th. "It is with regret that I advert to the recent perpetual complaints of an officer against his superior in the execution of his office; and, anxious to terminate, if possible, such conduct without resorting to extremes, I refer that officer to the serious consideration of the articles of war, Nos. 19, 21, 22, and 23, as well as the general printed instructions,-further, he herewith receives my most posi-[153]-tive orders, never, upon any pretence whatsoever, to presume to enter into any altercation again with him upon the quarter-deck; but that he conform to the discipline of the service, and a cautious observance of the 21st article of war, as well as the 13th order, &c. &c. &c.'

The articles in the naval instructions relied on by the plaintiff as his authority for his conduct, and which were also read in evidence, were the following:

Sect. 1, chap. 1, Art. 7. "If an officer shall observe any misconduct in his superior, or shall suffer any personal oppression, injustice, or other ill treatment, he is not, on that account, to fail in any degree in respect due to such superior officer; but he is to represent such misconduct or ill treatment to the captain of the ship to which he belongs, or to the flag-officer commanding the squadron in which he serves, or to the commander in chief, as circumstances may require."

Art. 9. "If an officer or other person shall have occasion to represent the misconduct of any officer, or shall have cause of complaint, he is to represent it to the captain of the ship to which he belongs; but if the captain shall not attend to his representations, or if the captain be the officer whose misconduct he shall think it necessary to represent, or of whose ill treatment he shall have cause to complain, he is to make his representation to the commander in chief, to the superior officer present, or to the Secretary of the Admiralty, as circumstances may require."

Art. 15. "If an officer shall at any time receive from his superior an order which may be contrary in any respect to any article in these general instructions, or to any particular order he may have received from the Lords Commissioners of the Admiralty, or from any superior officer, he is to represent in writing such contrariety to the officer from whom he shall have received the order; but if after such representation, that officer shall direct him to obey the [154] order he has given him, he is to obey it, and report the circumstances to the commander in chief, or to the Secretary of the Admiralty, as may be necessary."

It appeared from the evidence, that between the 13th August, when the plaintiff was first required to sign the order-book, but refused, and the 31st when he did actually sign it, no repetition of the order to sign had been given by the defendant : it was, therefore, contended for the plaintiff, that he had acted properly in the affair, and was not guilty of any breach of his duty.

It did not appear that there was any unnecessary delay in bringing the plaintiff to trial by the court-martial.

The charges exhibited by the defendant before the court-martial against the plaintiff, were as follow:

1st Charge. For a breach of the 19th, 22d, and 23d articles of war, on or about the 29th July, and 7th August, by conduct as set forth in Lieutenant Kelly's letter of the latter date.

2d Charge. For behaving to me with disrespect and contempt, on or about the 10th day of August, in declaring that he stood too high at the board (Navy Board) to be afraid of or hurt by any representation I could make of his conduct.

3rd Charge. For disobedience of orders and un-officer-like conduct, between the 10th day of August, and 29th of the same month.

4th Charge. For making insertions in the log-book relative to me, without my directing him so to do, more particularly on the morning of Sunday, the 29th August; and being guilty of falsehood and prevarication when taxed therewith on the quarterdeck.

As to the first and second charges, the court-martial were of opinion, that they could not decide upon them, inasmuch as the first arrest having been put an end to on [155] the 17th August, all charges prior to that time were done away with.

As to the third and fourth charges, the Court were of opinion that they were in part proved, and decided that the plaintiff should be reprimanded, and admonished to be more careful in his behaviour in future.

The Attorney-General, for the defendant, contended, that although the courtmartial were in error in not deciding on the first and second charges which related to the first arrest; yet as the whole affair had been investigated, and evidence heard on both sides, it was not competent to go into the investigation a second time before a tribunal of a different description. He relied on the sentence of the Court as conclusive upon the question.

Abbott, C. J.-I think, if you mean to say, that you put the plaintiff under arrest in order to bring him to a court-martial, and that you did so bring him, and rely on the sentence of the court-martial as conclusive, you must so plead it, and plead it by way of estoppel. By this form of pleading you consent to bring the question before a jury. The questions are, whether the defendant did put the plaintiff under arrest for the charges alleged in the pleas; and I take it that the truth of those charges is to be inquired of here. One set of pleas justifies the arrest, on the ground of a charge of disobedience made by another officer. And I shall tell the jury, that if they think the arrest took place in consequence of the charges made by Lieutenant Kelly, then they must find their verdict for the defendant: and I shall leave it to them to say, whether it took place for that or for any other cause.

The Attorney-General then addressed the jury, and called a witness, whose testimony, though it shewed some acts of impropriety on the part of the plaintiff, did not materially vary the case as proved by his witnesses.

[156] Abbott, C. J. in his summing up said-The arrest in this case is what is called close. But I am of opinion, in point of law, that it is in the discretion of the superior officer to say, whether an arrest shall be close or at large. If he put a party under arrest without cause, then the difference is matter of consideration, only with a view to the estimate of damages. Upon this record, I am of opinion, in point of law, that it is left for you to inquire whether the arrest took place on any of the alleged grounds, either in consequence of disobedience to the defendant, or of a charge made by another superior officer. If you think that the cause of arrest was, on both days, the complaint made by Lieutenant Kelly, then you will find for the defendant on those pleas which so state it; but if you think that it was not for that, but for the others, viz. that the plaintiff had in fact disobeyed, quarrelled, &c., then I am of opinion, that you are at liberty to inquire into the truth of the charges made. The letter of the 14th of August, is stated by the defendant to be his ground of arrest in his letter to the Admiral. But I think that he is not to be held strictly to the circumstance of the letter; but if he can shew improper conduct before, he is at liberty to take advantage of it. There is no entry in the log-book previous to that time. I think that the letter of remonstrance respecting the signing of the orders, is not an act of disobedience. It is not necessary that I should give any opinion, as to whether any thing in the defendant's order-book was contrary to the printed instructions. I think it was competent to the captain to make the order about the bullion. I think the defendant was justified in asserting that quarrels had taken place, without mentioning the names of the parties: and I think that the order made by the defendant about sending letters through him to the commander in chief, is at variance with or at least hardly warranted by the printed instructions; but I do not think it necessary to lay down any positive opinion on the subject. The question as to the first ar-[157]-rest is, did the plaintiff disobey the captain and refuse to sign the orders? As to the second arrest, I think it seems to have been made in consequence of the entry in the log-book. I find nothing in the printed instructions which requires the master to confine the entries in the log-book to that which is on

the log-board, and I should be greatly surprised if it were so. If you shall be of opinion that the first arrest took place on the writing of the letter as to the signing of the orders, and that the writing such letter was not an act of disobedience; and if you shall think that the second arrest was made in continuation of the first, or on account of the insertion in the log-book, or of prevarication and falsehood, and also that the entry was not an unauthorised entry, and that there is no proof of falsehood or prevarication; then in either of these cases you will find your verdict for the plaintiff.

Verdict for the plaintiff.-Damages, £300.*

Brougham, Parke, and Pattison, for the plaintiff.

The Attorney-General, Scarlett, and Maule, for the defendant.

[Attornies-Vincent, and C. Jones.]

[159] Adjourned Sittings at Westminster, after Michaelmas Term, 1825.

Jan. 9th, 1826.

HUGHES v. BREEDS AND OTHERS.

66

(If a written paper contain a specification of goods, and the vendor by it agree to finish the goods in a tradesman-like manner.' This agreement does not require any stamp, as it is an agreement for the sale of goods, and not for the doing of work. And it need not be specially declared on.)

[Applied, Pinner v. Arnold, 1835, 2 Cr. M. & R. 613.]

*The case of Wall v. M‘Namara, tried before Lord Mansfield at West. Sitt. aft. M. T. 1779, cited in 1 T. R. 536, was an action brought by a captain in the African Corps, against the defendant, who was Lieutenant-Governor of Senegambia, for imprisoning him for nine months at Gambia, under circumstances of cruelty. The defendant pleaded the general issue, intending to justify the imprisonment as under the Mutiny Act, on the ground of the plaintiff's disobedience of orders. (By the army mutiny acts defendants may give special matter in evidence under the general issue.) The alleged disobedience was, that the plaintiff, being ill, had left his post without leave from his superior. Lord Mansfield said, "In trying the legality of acts done by military officers in the exercise of their duty, particularly beyond the seas, where cases may occur without the [158] possibility of application for proper advice, great latitude ought to be allowed, and they ought not to suffer for a slip of form, if their intention appears by the evidence to be upright: it is the same as when complaints are brought against inferior civil magistrates, such as justices of the peace, for acts done by them in the exercise of their civil duty. There, the principal inquiry to be made is, how the heart stood; and if there appears to be nothing wrong there, great latitude will be allowed for misapprehension or mistake. But, on the other hand, if the heart is wrong, if cruelty, malice and oppression appear to have occasioned or aggravated the imprisonment or other injury complained of, they shall not cover themselves with the thin veil of legal forms, nor escape, under the cover of a justification, the most technically regular, from that punishment which it is your province and your duty to inflict in so scandalous an abuse of public trust. It is admitted, that the plaintiff was to blame in leaving his post; but there was no enemy, no mutiny, no danger. His health was declining, and he trusted to the benevolence of the defendant to consider the circumstances under which he acted; but, supposing it to be the defendant's duty to call him to a military account for his misconduct, what apology is there for denying him the use of common air in a sultry climate, and shutting him up in a gloomy prison, where there was no possibility of bringing him to a trial for several months, there not being a sufficient number of officers to form a court-martial; those circumstances, independent of the clearest evidence of malice, as sworn to by one of the witnesses, are sufficient for you to presume a bad malignant motive in the defendant, which would destroy his justification, had it even been within the power delegated to the defendant by his commission." The jury found a verdict for the plaintiff, damages, £1000.

In the case of Warden v. Bailey, 4 Taunt. 67, it was held that an action for false imprisonment lies by an inferior officer against his superior, for an imprisonment for disobedience of an order not within the scope of military authority, although the imprisonment had been followed by a court-martial. In that case, the law on this subject was much discussed by the learned serjeants engaged in it.

Assumpsit for marble chimney-pieces sold and delivered, with the common money counts. Plea-General issue.

The question raised was, whether the following written agreement (which was not declared on in any special count), required a stamp.

"Marble chimney-pieces for the Castle Inn. Two black marble in the large room, one statuary in the back room adjoining." (It specified several more chimneypieces.)

66

Memorandum of an agreement between Breeds, Farncomb, & Co., and Thomas Hughes, Clerkenwell, London. The aforesaid T. Hughes doth agree to finish the aforesaid marble chimney-pieces in a tradesman-like manner, at prices before agreed to, by the 4th of June, 1818."

"This agreement agreed to on the 1st day of May, 1818.

"T. Hughes doth further agree to execute the above order by the time above mentioned. In default, T. Hughes to forfeit the price of the aforesaid chimneypieces. A bill at three months for the amount. (Signed by the parties.")

Chitty, for the defendant Farncomb, objected, that this agreement required a stamp, because the goods were not in a state to be delivered when the agreement was entered into something more was to be done they were to be finished. And he cited Buxton v. Bedal, 3 Ea. 303 (a).

[160] Abbott, C. J.-I think this is a contract relating to the sale of goods; and, therefore, within the exception of the Stamp Act: the defendants order the goods, and the plaintiff is to complete and send them. That is only goods sold.

Campbell on the same side. Perhaps your Lordship will save the point. This agreement was entered into before the goods were complete; and therefore is an agreement for work to be done, as well as for the sale of the goods when complete, and therefore ought to be stamped. The plaintiff first agrees to make what were blocks of marble into chimney-pieces; and then to sell them to the plaintiff it cannot, therefore, be an agreement for the sale of goods, as they were not goods in a state to be sold at the time of entering into the contract.

:

Abbott, C. J.-It by no means appears that the chimney-pieces did not exist at all, but rather the contrary, for it seems they only required to be finished. I am clearly of opinion, that this is a contract relating to the sale of goods, and therefore does not require any stamp. I think that the fact, that something remained to be done to the goods before the delivery makes no difference; indeed, I have no doubt on the point.

Verdict for the plaintiff.-Damages, £77, 16s.

Gurney and D. F. Jones, for the plaintiff.

Campbell and Chitty, for the defendant Farncomb.

Hutchinson, for the defendant Breeds.

[Attornies-G. Selby, and Knowles for the defendant Breeds and Gregson &

F. for the defendant Farncomb.]

[161] Jan. 11th, 1826.

DAFTER v. CRES WELL, ESQ.

(If one execute a ship's articles to serve on board as an able seaman, at certain wages, and when on board act as a cuddy-servant; if there be no express agreement that he shall receive separate wages as a cuddy-servant, he can maintain no action against the captain for wages in that capacity. Whether he could, if there were an express agreement.—Quære.)

[Subsequent proceedings, 7 D. & R. 650. Explained, Hanson v. Royden,

1867, L. R. 3 C. P. 47.]

Assumpsit for work and labour as a servant.

It appeared on the part of the plaintiff, that he was employed as the cuddyservant of the "Astell " East India ship, of which the defendant was the captain; and the plaintiff's former master, Captain Freeman, proved, that he had employed him, and found him a valuable cuddy-servant, and always gave him enough to make up

(a) In that case it was held, that a contract for the making of goods required a stamp. The words of the exemption in the Stamp Act, 55 Geo. III. c. 184, are "memorandum, letter, or agreement made for or relating to the sale of any goods, wares, or merchandizes."

N. P. III.-3*

his seaman's wages £35 a year. The cuddy-servant is the person who waits at dinner, &c. on the passengers on board East Indiamen.

Scarlett for the defendant. I submit, that the plaintiff must be called, for he has executed the ship's articles as an able seaman, at 35s. a month wages; and, according to the authorities and the Act of Parliament, he can recover no more. In the case

of White v. Wilson, 2 Bos. & Pul. 116, it was laid down, if a man agree by the articles to serve for certain wages, he cannot recover more. And by the stat. 2 Geo. II. c. 36, the owners of ships are obliged to have articles signed containing the terms agreed on. And it has been held also in the Admiralty Courts, that no man can recover more than is specified in the ship's articles. Now the defendant had been paid the sum specified in the articles, and more.

The ship's articles, signed by the plaintiff, and dated December 2nd, 1819, were put in. By those, it appeared that the plaintiff agreed to serve as an able seaman at the wages of 35s. a month; and the purser proved payments to him to more than that amount.

Gurney for the plaintiff. We do not go for seaman's wages.

Abbott, C. J.-I think you ought to be nonsuited. I am of opinion, that, in point of law, the ship's articles are conclusive. If you had proved a distinct contract for the plain-[162]-tiff to recover more, I would have allowed you to go on, but attempt to raise an implied assumpsit.

you only Gurney. I was going to contend, that the case was distinguishable from the authority cited that was the case of a mate whose services, were of a kind to be within the articles, but the plaintiff's services, for which he now claims a compensation, were distinct from those of a seaman, namely, those of a cuddy-servant. The defendant does not take him, because he is a seaman, but goes and asks his character of a former master; and we have also proved that a cuddy-servant receives wages. Abbott, C. J.-The only evidence is, that Captain Freeman used to pay his cuddy

servant.

Gurney. The plaintiff is proved to be an excellent servant.

Abbott, C. J.-I am very sorry to interrupt you, but I am decidedly of opinion, that if a man signs the ship's articles as a seaman, he can recover no more wages than are there agreed for, however he may be employed on board the ship; you have proved no express contract for him to be paid more; if you had, I would not have stopped the case; but as it is I feel bound to nonsuit.

The plaintiff was then nonsuited, with liberty to move to enter a verdict for the plaintiff, if the Court above should think the action maintainable.

Gurney and Chitty, for the plaintiff.

Scarlett and Cresswell, for the defendant.

[Attornies-W. Williams, and Ball & B.]

[163] Before Abbott, C. J., Bayley, Holroyd, & Littledale, Js. In Bank.

Jan. 27th, 1826.

Gurney now moved in pursuance of the leave given at the trial; but the Court concurred in the opinion given by the Lord Chief Justice at the trial, and refused the rule.*

*By the stat. 2 Geo. II. c. 36, s. 2, it is enacted, " that if any seaman or mariner enter or ship himself on board any merchant ship or vessel on any intended voyage for parts beyond the seas, he and they so entering themselves as aforesaid shall, and they are hereby obliged to sign such agreement or contract (in writing) within three days after he or they shall have entered themselves on board any ship or vessel, in order to proceed on any voyage as aforesaid, which agreement or agreements, or contracts, after the signing thereof, shall be conclusive and binding to all parties, for and during the time or times so agreed or contracted for, to all intents and purposes, any custom or usage to the contrary in anywise notwithstanding."

The case of White v. Wilson, 2 Bos. & Pul. 116, was an action of assumpsit by the mate of a ship engaged in the slave trade, on a promise, that in consideration of his services, the defendant would, in addition to his wages, pay him the value of one negro slave. It was proved that mates of slave ships usually received the value of one or two slaves, if they did not misbehave, and that the defendant had agreed to allow the plaintiff the value of one slave. It was contended, that the Act of Parlia