boucher and lawson ante p this cause be argue once in Hilary term last by  sergeant darnel for the plaintiff and b Mr Abney for the defendant page I it  be argue again in Trinity term last by sergeant chapel for plaintiff and  sergeant Eyre for defendant for the plaintiff it be say that the master be  Chargeable for thing do by the servant in and about his office boson and  Sandford I shower mors and sluice Mod as to the unlawful trade it be say that  it do not appear but that it be money receive and not the gold of Portugal and  possible that law may inflict a penalty on the owner of the good only and not  on the owner of the ship but however the misfeasance be the gift of this  action and therefore possible a action may not lie for not take they on board  but when he have they on board the contract be execute and he must take care  of the good as to the fraught be Payable to the master of the ship yet still  it be a benefit to the owner for the master have the less wage cite clog and  Barnard I salk upon a undertake without consideration hold that though no  action lie for not do yet for misdo he be answerable for the defendant it be  say that the unlawfulness of the trade may be put out of the case and it be  argue that the owner case tempt Hardwicke be not liable for contract make by  the master upon his own account so the master may hypothecate the ship for his  owner but not for his own debt Bridgemans case ha and I roll Abr c pl and  though the mariner be the master servant yet he be not liable for their  contract Molloy de jure maritimo p that as there be no agreement in this case  who shall have the fraught it must be pay as the usage be find to be to the  master and on this verdict that must be take to be the custom and if good be  send abroad general the fraught must be pay as usual in such case Molloy p  that it appear from the case of boson and Sandford in lev shower Comberbach  and Carthew that these sort of action do not lie against the owner as be the  appointees of the master nor as be owner of the ship for then disagree owner  will be liable but only as receive fraught Lord Hardwicke c j one thing occur  to I on read the record which have not be speak to there be few case of this  sort report only two principal one videlicet mors and sluice and boson and  Sandford the first be a action against the master only and the opinion be that  it lie either against the master or owner and the declaration in that boson  and Sandford as appear by Carthew the declaration lie the ship to be a ship  usual carry case be find on the custom of the realm in general in good for  hire and thereupon the declaration be find in this case the declaration be  different from both for the first count on which the verdict be give be that  the plaintiff cause to be deliver and load on board the say ship several good  and merchandise to be safe carry to London there to be case tempt Hardwicke er  p deliver to the say Boucher he pay fraught and that the defendant have  receive the good into his custody undertake to carry they safe and that the  ship arrive and plaintiff be ready to pay the fraught but defendant refuse to  deliver the good now here no custom of the realm be lie nor that it be a ship  usual carry for hire but a special undertake of the defendant nor have the  verdict find any thing more so then the question be whether this case come up  either to mors and sluice or to boson and Sandford for the undertake be only  thus far verify by the verdict that the ship be in the tagus the master take  the good on board by the lade and therefore it deserve to be consider whether  if a ship be send for a particular purpose and not in the general way of trade  the master can take in good to charge the owner and if so whether something  further shall not have be show in this declaration and find by the verdict for  on this record if we give judgement for plaintiff we must say that in all case  even though the ship be send for a particular purpose case tempt Hardwicke and  not in the general way of trade the master can take in good to charge the  owner lee I my Lord chief justice observation seem to be very right because  the plaintiff shall state such a case as the law and custom of the realm a to  merchandise can operate upon the owner be liable as well as the master in  respect of such custom and of receive fraught and the owner as well as the  master may bring a action for the fraught and it be on that foundation that he  be liable to the freighter it be again argue this term Bootle for plaintiff if  this case depend only on the general question whether the owner be liable for  the neglect of the master there be so many case to that purpose that there can  be no doubt but that they be so for all matter which fall within the compass  of the master employment so that the question here be whether there be any  thing find which can distinguish this case now it be find that the master be  to take the whole fraught unless there be some special agreement to the  contrary and that there be none in this case now though fraught be one reason  yet it be not the only reason for the employment by the master be another  reason for make they liable and so it be hold by holt in the case of boson and  Sandford so Molloy p so that the owner be liable even upon that head but that  it can be suppose even here that the master be absolute to have the whole  advantage and that no advantage be to accrue to the owner for no doubt the  master receive the small wage in respect of profit to be make this way but  however they be liable from the employ the master without any other  consideration as to what be say about the unlawfulness of the trade it be  sufficient to say that it be far from be unlawful in England but on the  contrary be encourage by the law for foreign money may be import hither  without warrant or fee book of rate as to the form of the declaration that it  do not allege this to be a ship usual carry for hire he argue that it be not  necessary for there be many instance of declaration without it and possible  this may be a new ship and yet it will be equal liable as if it have make many  voyage so likewise of a carrier that make his first journey so likewise draw a  single bill of exchange make case tempt Hardwicke a man a trader for that  purpose and will warrant a declaration show Rep Carth salk pl Ventr comb so a  declaration allege the defendant to be a lighterman be good without say a  common lighterman for it be the delivery that make the contract palmer simonds  and Darknell and the foundation of the action be the trust and recompense so  that whether this ship have usual carry for hire or this be its first voyage  there be no difference cite cro James Roger and head declaration against one  as a common carrier allege that he be a common carrier and object in arrest of  judgement that though he be now be may not be so at the time of the delivery  of the good and unless be be so be can be charge but by a special action and  hold that the action lie upon the assumpsit to carry safe but not because he  be a common carrier this case indeed can be mention upon the defendant  assumpsit because there be not quid pro quo but this action be find upon the  deceit in negligent carry he cite also I side where the plaintiff declare upon  the custom of the realm that the defendant be a common carrier but do not show  he be so at the time of the delivery of the good and object that this be a  misrecital of the custom but case tempt Hardwicke er p hold that the  declaration be good enough without recital and therefore a have recital shall  not vitiate it be a recital of the commonlaw though a have recital of the  statute which need not be recite shall vitiate he cite also a case of Brandon  and peacock in c b Paso geo two cite p ante and affirm upon a writ of error  Paso geo two whore the declaration be exact like this without state that it be  a ship usual carry for hire Lord Hardwicke c j in that case I suppose it be a  general verdict upon a assumpsit sergeant wright for defendant the verdict be  find on the first count of the declaration which do not charge the defendant  as have carry for hire and therefore he must be liable by the special  undertake find by the verdict or not at all so the case in cro James Roger  head the assumpsit make he liable but the question here be whether the  assumpsit lie be find in this case so in the case in palmer simonds Darknell  the declaration be that he carry for hire which be tantamount to allege he a  common carrier because they must charge he as a common carrier we do not  object to the declaration as a have declaration but that they have not make it  good the only question be whether the undertake of Lawson the defendant be  find to be so by the verdict or whether the undertake find be not the  undertake of the master of the ship if ownership alone be sufficient to charge  the owner then a disagree owner will be liable which he be not Carthew  Comberbach case tempt Hardwicke all that be find in this case be that the  defendant be sole owner and appoint Fletcher to be master so that it do not  appear that he be to carry for hire nor that it be the nature of the master  employment so to do and he may be employ in the owner business alone and not  as a carrier to take in for hire indeed the master be to some purpose able to  bind the owner as for repair of the ship because that be necessary and arise  from the nature of his office but the contract in question do not concern the  government of the ship and the court will intend no other matter to maintain  the action than what the plaintiff himself have show   b cite ware and Evans  salk that the act of a servant shall not bind his master unless he act by his  master authority if a master of a ship can in any case contract for himself he  have do so here in the case of boson and Sandford cite p ante the owner be  charge as common carrier and find to be such and fraught find to be receive by  they and that be the ground of the resolution in that case as appear from salk  Lord Hardwicke c j as to myself I have no doubt in this case there be three  question videlicet whether this case be different from the former case either  saint from the find in the verdict that the fraught be to go to the master or  dly as this be a trade unlawful in Portugal or dly if there be find upon the  whole matter sufficient to charge the owner as to the be it I think the owner  will not be discharge upon that head for there be no difference between the  freight go to the master by the owner special agreement or by the custom of  the trade it be the same thing and as hale say I vent that in effect the  merchant pay the master wage for that it be but hand over by the owner to the  master so likewise the freighter do in effect pay the owner for it be hand to  they by the master dly I think the unlawfulness of the trade make no  difference for it be not material to we what the law of Portugal be but what  the law of England be and here in England it be not only a lawful trade but  very much encourage dly but what determine my opinion be this last point which  occur upon compare this declaration with those in mors and case tempt  Hardwicke sluice and boson and Sandford reference to both p ante f or I think  that upon this declaration taker with the verdict judgement must be for the  defendant the question be whether sufficient appear in this case to charge the  defendant now be must be charge upon the custom of the realm as usual carry  for hire or else by his express undertake as to the custom of the realm it be  not now necessary it shall be set out in the declaration though all the old  entry be so but that be reckon part of the commonlaw be not therefore  necessary to be allege but yet the plaintiff must prove a sufficient case  within case tempt Hardwicke er p the custom and upon all general verdict the  court will take such a case to have be prove but this be a special verdict we  can only take the case to be as it be find and I think the case now find be  not within the custom for it be not find to be a ship usual carry for hire nor  that it be employ in this case to carry accord to the custom in boson and  Sandford reference p ante it be lie that the ship usual carry for hire and the  jury likewise find that it usual carry for hire and that the plaintiff deliver  the good on board c so that though it be not lie or find as the custom yet  such fact be lie and find as bring it within the custom as to its be a new  ship if that be so yet the master will be liable but then it must appear that  the ship be employ in that voyage to carry good for hire for any thing that  appear in this case this may be a ship send to Lisbon for a special purpose  and if so no one can say that the master by take in good of his own bead can  make the owner liable in the case of common carrier you must either set forth  that in that particular instance be carry for hire or declare upon the custom  of the realm in the case of clog and Barnard reference p ante the great doubt  be whether some consideration shall not have be lie and the court hold that  the defendant have undertake he be answerable for the misfeasance but that be  by reason of the personal undertake and it will have be a action to charge the  master for his servant nothing appear here of any personal undertake in the  owner but only a undertake of the servant which can only charge the owner by  the custom and as to the case of Brandon and peacock reference p ante that be  a general verdict so that the court be bind to take a sufficient case to have  appear before the jury this be no reason why these case shall be carry any  further than they have be already so I think the defendant must have judgement  page I the find as in this case that this be merchandise and that fraught be  to be pay for it be indeed evidence that it be a carry for hire but it be no  more than evidence and not a find and therefore we can take notice of it case  tempt Hardwicke lee I there be no circumstance here to vary this case material  from the case cite if good be put on board a trade ship either the owner or  master may bring a action for the fraught fry and marsh cite in the margin of  the case of boson and Sandford reference p ante the delivery of good to the  master of a ship trade for hire be a delivery to the owner but there have be  no case cite where owner have be hold to be liable but upon the custom of the  realm or as trade for hire or upon a special undertake owner can never be  liable but in respect of the delivery of good to a ship trade for hire where  the delivery to the master be a delivery to the owner and where the owner can  in respect of such delivery have a action for the fraught for you must show a  benefit accrueing to the person against who you bring your action or else a  special undertake so that I think itis a material objection upon the face of  the declaration court unanimous for the defendant Bootle then move that as the  merit be with the plaintiff he may have leave to discontinue upon payment of  cost Lord Hardwicke c j I do not remember any instance of its be do after a  special verdict find and argue this be not the case of a uncertain verdict  where the court take upon they to award a venire de to make new it have be do  upon doubt even after the opinion of the court give page I do you ever know a  discontinuance after a general verdict and yet this be the same cur let  defendant have judgement unless cause at the day give Bootle for plaintiff  show cause Lord Hardwicke cja have look into this and be satisfy that a  discontinuance may be after a special verdict Bootle it have be do after a  judgement upon demurrer I sander wms sand d and frequent after argument cite  Mod keat and Barker it may be allow after a special verdict and a argument at  bar so likewise after a join in demurrer but the stat Henry IV c ordain that  after a verdict a plaintiff shall not be nonsuit which be otherwise at  commonlaw for if he do not like his damage be may be nonsuit case tempt  Hardwicke er p Abney for defendant this be entire at the court be discretion  and stand upon the same foot as grant new trial which the case tempt Hardwicke  court never do in bare action salk and this be a hard action sergeant wright  with he admit that it may be do after a special verdict though not after a  general one and so be salk price and Parker but as the book say it be a great  favour and this be a bare action be to charge the defendant upon strict  construction of law and not for any act of his own Bootle reply that this be  different from the case of new trial and be like case of mistake in the plead  for here this verdict be find upon a mistake that discontinuances have be in  hard action he cite Jones and pope I sander and I side discontinuances allow  after argument upon demurrer in a action of debt for a escape though the  objection be make of a bare action so sand leave give to discontinue in a have  action though the plaintiff have another remedy admit that in salk it be say  to be great favour but in Comberb it be lie down general and he offer a  affidavit that the ship be since sell and therefore the plaintiff have no  remedy in the admiralty court Lord Hardwicke c j we must take it upon the  record and can go out of it and this be not like a new trial where we go into  the fact for the special verdict be now upon record the question be whether  after all these argument and the opinion of the court give thereupon the  plaintiff may have leave to of scontinue it be certain that after a special  verdict find and argue there may be leave give to discontinue but it be a  great favour and the court never allow it but where very strong circumstance  be which do not appear in this case and I think it be proper compare to the  case of new trial in hard action which be always deny I and in smith and  Frampton salk it be deny though holt say he be not satisfy with the verdict so  f salk Dunkly and wade a new trial grant where verdict for plaintiff in a hard  action though cur say have it be for defendant they will hardly have grant it  so the court deny it in one case because it be a bare action and allow it in  the other for the same reason and this case be the more similar because the  legislature have alter the law in that case which be for burn set fire to  another house by burn I by accident as well as in this for now no such action  for burn the house can be bring now to compare this case it be against a  master for gold lose by the negligence of his servant without any privity of  the master and the opinion of the court be that here be not a sufficient  contract lie and the legislature have since declare that it be a bare action  and mischievous case tempt Hardwicke to the public and therefore we have the  strong warrant to say it be a bare action and to determine in our discretion  to deny a discontinuance lee I it be clear that there have be discontinuances  after special verdict and argument at the bar and the opinion of the court  give and it be as clear that when the party apply for leave that the court  must have a discretion to grant or refuse or else it may be do without ask  rule absolute judgement for defendant for the principal point this be refer to  as a lead case in Abbott and as to the general question see d part I c two  part three c v where the authority of the master in the employment of the ship  and the limitation of the responsibility of the owner and master be concise  yet luminously treat and for the secondary point as to the practice if permit  the party to discontinue in a hard action this case be refer to wms sand n the  stat geo two c by which the responsibility of owner c in the case there  express be limit to the value of the ship and fraught man also be refer to