II. CH. 57. discharged abroad without the payment of them. Art. 2. den v. Gordon & al. master and owner of the brig Enterprize. As to mas ter's wages, 2 Mason, 91 and 96, Willard v. Dorr. 1 Ma son, 45, Emerson v. Howland. 7. Cases of sickness. Suit for subtraction of wages 2 Mason's R. earned by the plt., as mate, on a voyage, from Portland to 545-563, Har- Guadaloupe and a market, and back to Portland. The libel, also included a claim for the expenses occasioned by the plt's. sickness in a foreign port in the course of the voyage. Held, 1. These expenses were a charge on the ship, by the maritime law; and in this charge are included not only medicines and medical advice, but nursing, diet, and lodging, if the seaman be carried ashore: 2. The act of Congress, as to seamen, &c. has not changed the maritime law, except as to medicine and medical advice, when there is a proper medicine chest and medical directions on board the vessel. The charges of nursing and lodging are not affected by the act: 3. The court of admiralty has jurisdiction to enforce the payment of these expenses by a libel, for they are in the nature of additional wages, during sickness: 4. A stipulation, the seaman shall pay for medical advice, &c. is void, as contrary to the policy of the act of Congress: 5. As to a receipt in full of all demands, it is prima facie evidence, but may be explained. A sick seaman, while on board, is entitled to receive suitable sustenance, and attendance from the ship and crew, during his illness;' and the marine ordinances, evidence of the general marine law, authorize a similar allowance, when he is put ashore.' The seventh article of the laws of Oleron is thus, If it happen, that sickness seizes on any one of the seamen, while in the ship's service, the master ought to set him ashore,' also to spare him one of the ship's boys, or hire a woman to attend him, and to afford him such diet as is usual in the ship.' The nineteenth article of the laws of Wisbuy is thus, If as eaman fall ill of any disease, and it is convenient to put him ashore, he shall be fed as he was aboard, and have somebody to look after him.' The fortyfifth article of the Hanseatic ordinance is thus, 'If mariner fail sick of any disease he shall be put ashore and maintained in like manner as if he were on ship board, and be attended by another mariner.' The French ordinance provides he be cured at the expense of the ship. See art. 5. s. 12; see 3 Mason, 160, 174. ART. 5. any 12 Serg. & R. 266, Buck v. Lane: if a seaman embezzle, &c. he clearly forfeits his wages. Other cases, 2 Mason's R. 319; 3 Mason's R. 161. § 18. Passengers in ships and vessels. Act of Congress, March 2, 1819, directs, that not more than two passengers be Con. taken in to five tons of shipping, in vessels coming to or going II. CH. 57. from the United States, custom-house measure, exclusive of Art. 5. the usual number of seamen to navigate the ship or vessel. Penalty on the person who takes in and on the owner, severally $150 for each passenger beyond such proportion; and if the extra number be twenty or more passengers in the whole, then the ship is forfeited to the United States, as is also said penalty. v. $ 19. Master, how liable for goods sent by a freighter or 2 Pick R. 615 not. Assumpsit against the deft. on his undertaking to carry Day . Noble to Virginia and a market, boxes of marble, with orders to dispose of them for the most he could obtain. He could not find a purchaser, and left them in the hands of a merchant, in good credit, to be sold for the owner. Plt. contended the deft. was bound to sell at any rate, or if he could not sell he was bound to bring the articles back to Salem. The court held there was no order to bring back the articles, and added, ' it is well known law, that if a consignee cannot sell without a great sacrifice of the property, he is not obliged to sell; such a circumstance being considered as an unexpected contingency.' See ch. 30. a. 11. s. 9; 1 Pick. R. 343. CHAPTER LVIII. CASE ON TORTS. 11. Case for not authorizing the discharge of a debtor, ART. 1. &c. Held, a creditor is bound to accept from the debtor in Con. custody on a ca. sa. the debt and costs when tendered, and to 4 Barn. & sign an authority to the sheriff to discharge; and if the credi- Cres. 26, Crogin v. Pilling. tor refuse to do this, case lies against him, and such refusal is evidence prima facie of malice, in the absence of circumstances to rebut the presumption. Cres. 589-611, 12. Case against assignee in tort. The plts., lessees of 5 Barn. & a term by deed poll assigned to the deft. he to pay rent and Burnett & al. perform covenants in the original lease. Deft. occupied and exrs. of Burbefore the term expired assigned to C. The lessor sued the nett v. Lynch. now plts. for breaches of covenants while the defts. occupied and recovered damages against them. Held, the present plts. might have case in tort against Lynch, assignee, for neglecting to perform the covenants while assignee, whereby the plts. sustained damages. 17 con. This maxim, sic utere, &c. was applied in the ART. 2. following case, and numerous authorities cited. There was a Con. milldam across Turkey river in Concord, and mills at the 2 N. H. Rep. north and south end of the dam. A, owning the dam, &c. nels v. Bullen. 532-539, Run Art. 2. Con. II. CH. 58. granted to B, by deed, one half of it, with the privilege of taking the water from any part of the half granted. Held, the deed passed the right to the use of one half of the water only, and that case might be maintained by A against B for taking more than half of the water to the injury of A. The action was for opening sluiceways in the dam, and diverting water from the plt's. mills. The deft., under B, contended he had a right totally to destroy the north half of the milldam, or to draw water from it as he pleased. The plt. claimed as the court at last decided, for on examination it changed its opinion in some respects. ART. 1. CHAPTER LIX. AGENT AND PRINCIPAL, &c. AS TO TORTS. 4. But generally the employer or master is not responsible for the wilful and unauthorized trespass committed by his agent, overseer, or servant. Harris v. Nicholas, 5 Munf. 483. 11. Assumpsit by the principal against his attorney for moneys had and received by him for lands sold, and held, the action lay if the deft. retained the money: 2. The deeds executed by the attorney expressed the consideration received. Held, prima facie evidence of the receipt of the money: 3. When an agent is authorized to receive money for his principal, or do any other thing, his drafts, receipts, accounts stated, or admissions relative to the subject, or his agency, and especially when all these are offered in connexion, constitute a part of the res gesta, and are competent though not conclusive evidence against the principal. Thalhimer v. Brinckerhoff, ch. 202. a. 9, Champerty, s. 2. The deft. was the attorney of Teller, who claimed the land and agreed to allow the plt. one fourth of what he should recover, he to pay half of the costs, &c. Plt. sued for his fourth part of the money deft. received for the land, by compromise, $75,000. The deft. set up, in his defence, that he did not know the plt., or of his agreement with Teller, till after he had paid to Teller, and he had discharged the deft. of all the moneys he had received, and that Teller was in fact the plt's. agent to receive. the money, or otherwise to discharge the claim for it. But the court thought the evidence proved that the deft. early knew of the agreement between Teller and the plt. Deft. had his power of attorney from Teller, under which he commenced the action. The court thought the plt. must have known the progress of the business and impliedly assented that Teller should settle the whole affair with the deft. and Art. 5. viewed Teller as his, the plt's. agent, and looked to him for II. CH. 59. the plt's. part of the money. The plt. did permit Teller to act as his agent. New trial granted, there being a verdict. below for the plt. for $13,500; but whether the evidence proved the deft. had fully settled with Teller or not, was left to a new trial. Not necessary to call Teller as a witness to prove such settlements, as his receipts, admissions, &c. were evidence as part of the res gesta. 3 D. & E. 454; 7 id. 665; 4 Taunt. 511, 563, 663; 10 Johns. 44; 2 Campb. R. 2 Wheat. 380. 555; Another case of an attorney's or agent's power, how construed. 6 Cowen, 354-359. Held, in Dawes. § 10 con. Case for seducing and debauching Jane Moran, ART. 6. the daughter and servant of the plt. per quod servitium amisit. Con. The action was brought by the mother, the head of the family, Moran v. and objection, the action should have been trespass. general, the plt. has his election to bring case or trespass for this injury 2. To establish the relation of master and servant, See in this case, the slightest acts of service are sufficient. art. 7, s. 4; 12 East 409; 3 Burr. 1878; 2 D. & E. 166, for trespass, for case, 2 Chit. Pl. 266-268, 1 Chit. Pl. 137; 2 Bl. Com. 459, and Martin v. Paine, 9 Johns. R. 387; to prove the relation of mistress and servant was established, were cited. 3 Bl. Com. 142, note by Christian; Selw. N. P. 967; 2 Phil. Evid. 156 s. 7: court cited in support of case Reeves' Dom. R. 293; 3 Serg. & R. 315; Selw. N. P. 1083; Ld. Raym. 1032. $ 11. Like action brought by the mother, a widow, for the seduction of her daughter, who at the time her child was begotten, was an indented apprentice, but before the child was born the indentures were vacated, and the daughter returned to her mother's, and there the child was born; the daughter was the principal witness: Held, 1. The action lay: 2. The jury are judges of the weight of evidence: 3. They could not, by law, give damages for bringing up the child: 4. In such case the court will not grant a new trial for excessive damages, unless they be such as to show partiality, passion, or corruption in the Sargent v. jury. Plt's. counsel did not contend there was any seduction, but only that the deft. was the father of the child. Verdict for the plt. $920. Some of the jury swore they allowed $900 for bringing up the child, and only $20 for the expenses and loss of service, and nothing for violating the daughter's chastity, or corrupting her morals. On the first point the court cited Martin v. Payne, 9 John. 38, [admitted if the indentures had continued, the mother's action had failed.] Bennet v. Allcott, 3 D. & E. 168; 1 Salk. 206;-2 point, 3 John. 182-262-270; 15 id. 496;-3 point, 9 John. 51; 12 id. 235; 10 id. 446; 4 D. & E. 461; 5 Taunt. 277; 11 East 22. New trial granted be 5 Cowen 106 125. Art. 9. up II. CH. 59. cause the jury mistook the law in allowing damages for bringing the child also some new evidence. § 2 con. Trespass against assessors. If they show by the records they were duly chosen at a town meeting, legally 1 Pick. R. 109- warned, they are not bound to go beyond the records; and to show the warning officer proceeded regularly; and by statute 1785, ch. 5, the State, county, and town taxes, are required to be separately assessed and put into separate lists; but the stat. 1823, ch. 138, passed since this decision was made. 113. pp. 482-484. 2 Pick. R. 392. 2 Greenl. 191197, Bussey v. Gilmore. ART. 10. 548-550, Wil ly. It is illegal for the assessors of a parish, to make an assessment on a valuation made by the assessors of the town, 'a usage adverse to law cannot repeal it.' § 9 con. A town has no power to assess the inhabitants to raise money to buy an exemption from toll for them at a toll bridge. Necessary charges mean only charges relating to corporate duties. §2 con. Was case for rashly setting a fire on land of the deft., which fire was so negligently guarded, that it spread to 2 N. H. Rep. land of the plt., and there caused much damage. Plea genson v. Pever-eral issue, point decided; when a servant acts under the special orders of his master, the master is not liable for his negligence in doing business not ordered. In this case, the master directed his hired labourer to set fire in one place, this he did; and of his own accord, causes fire to be made in another place, and it was this second fire that spread and injured the plt. ; master not liable: cited 6 D. & E., 125-411, and some others of the numerous cases in this chapter, relating to masters and servants, principals and agents, &c. 2 Rand. 6-20, Morris & al. Terrell. Bank of New 4. Agent selling lands. An agent is empowered to sell lands; B buys of him, he cannot insist on a valid sale, if he know of any fraud or breach of trust in the agent; 2. If B fails to inspect the agent's written power to sell real property, this affects B with notice of any defects or qualifications in the writing. § 5. A, owing the plts. they agreed he should sell on bern v. Pugh, credit, and take bonds payable to them, to take such in pay1 Hawks. 198. ment as they approved. A sold, and gave them notice of the kind of bonds, and took from the deft. for his purchase, a bond payable to the plts. This being offered to them, they refused it, and it was returned to A, to use as he saw fit. Held, A became the agent of the bank to take and receive the delivery of the bond from the deft., and that the bond, by the delivery to A, was complete. 3 Desauss. 116. 4 do. 705. § 6. An agent who receives money due to his principal, on bond or judgment, is liable, merely as a simple contract debtor. How an agent entrusted to sell his principal's property and buys it, ought to prove clearly fairness in all respects whatever Butler v. Haskell. |