wards, on &c., at &c., deceitfully and fraudulently, the said bill in divers parts and places thereof, erased and obliterated divers words, so that the said bill is of no force; and the plaintiff, for that cause, could not recover his debt aforesaid; to the damage, &c. Bohun, 273.

For shooting plaintiff's dog.

For that whereas, on &c. at &c., the plaintiff was possessed of a certain spaniel dog, of the value of $—, as of the proper goods of him, the plaintiff, whereby he received benefit and profit; yet the said D, not ignorant of the premises, but maliciously intending and contriving to injure the plaintiff in this particular, then and there discharged a certain gun, charged with gunpowder and shot, at and upon said spaniel dog of the plaintiff, whereby said dog was so wounded, that he then and there died; whereby the plaintiff lost the benefit and profit, which he actually received of said dog, and was thereby much injured; to the damage, &c. Bohun. 204,

NOTE. It would be safe here to declare in trespass. See Count in Trespass, post.

For enticing away plaintiff's apprentice.

For that one A B, on &c., and long before, was, and still is, the plaintiff's apprentice and servant, and duly bound to the plaintiff, to dwell with and serve him, for and during the term of years, from and after the day of &c.; of all which the said T was well knowing; yet the said T, contriving to defraud and deprive the plaintiff of all the profit and benefit of the service of said apprentice, did on &c., at &c., entice and procure the said A B, then being the plaintiff's apprentice and servant as aforesaid, of which the said T was knowing, without the plaintiff's leave, and against his will, to depart and leave the plaintiff's service; by means of which enticement, the said A B, afterwards, to wit, on the same day, departed and left the plaintiff's service, without leave and against the plaintiff's will. And the said T, afterwards, on the same day, there knowing the said A B then to be the plaintiff's servant and apprentice, received and admitted him, the said A B, into his, the said T's, service, and has ever since retained and kept him therein; whereby the plaintiff has lost the benefit and profit of the service of his said apprentice and servant, from &c., aforesaid, unto this day. R. DANA.

Another.

For that whereas, one A B, a minor, on &c., and long before, was and still is the plaintiff's apprentice and servant duly bound to the plaintiff, to dwell with and serve him, for and during the term of years from &c.; of all which the said T was well knowing, yet the said T contriving to defraud and to deprive the plaintiff, of all the profit and benefit of the service of the said apprentice, did on &c., at &c., entice and procure the said A B, then being the plaintiff's apprentice and servant as aforesaid, and whereof the said T was well knowing, as aforesaid, to depart and leave the plaintiff's service, against his will and without his consent, and by means of which enticement, the said A B afterwards, viz. on the same day, there departed and left the plaintiff's service, without his consent and against his will; and the said T, afterwards, viz. on the same day, there well knowing the said A B to be the plaintiff's apprentice and servant, admitted and received the said A B into his, the said T's, service, and has ever since retained and employed him, the said A B, therein, and harbored and secreted the said A B, from his said lawful master, and has deprived the plaintiff of all the benefit and profit of the service of his said apprentice and servant, from &c., to the day of purchasing this writ; to the damage, &c. Quiner v. Hatch, 1796. S. SEWALL.

Against charterers for sending a ship chartered, on a voyage different from that agreed on, whereby she was lost.

For that whereas the plaintiffs, being owners of a certain ship, called the Vansittart, by a certain charter party of affreightment, dated August 13, 1788, let the same to the East India Company [the defendants,] to freight, for a certain voyage, with her to be made, in trade and also in warfare, as the said company, or any of their governors, &c. should require and direct; and therein and thereby the plaintiffs covenanted with the said company, that the said ship should be used by the said company, in trade or warfare, if required by the said company; that the master should observe the orders of the said company; and that the said company should have power to displace him or any other officer or officers belonging to the said ship; and the plaintiff avers, that, afterwards, to wit, on &c., the said ship sailed on her voyage aforesaid, and in the service of the said company, and that the said company, afterwards and while the

said ship was in the service of the said company as aforesaid, without the knowledge or consent, and against the will of the plaintiffs, employed the said ship in and upon a certain voyage and service, not being a voyage and service of trade or warfare, and not being a voyage or service, mentioned in, or intended to be warranted by, the charter party aforesaid, or upon which the said ship ought to have been employed, to wit, in and upon a certain voyage and service of observation and discovery, in and to a certain dangerous sea, straight or passage, situate to the eastward of a certain island, called the Island of Banca, for the purpose of exploring the said sea, straight, or passage; and wrongfully and injuriously, without the knowledge or consent, and against the will of the plaintiffs, kept and detained the said ship, in the said voyage of observation and discovery, for a great length of time, to wit, the space of &c.; by reason whereof the said ship in the course of the said voyage of observation and discovery, was stranded, sunk and lost, to wit, at &c. Lewin, &c. v. East India Company. See Peake N. P. Cases, 241.

NOTE. According to the doctrine of Parsons, C. J. in Wheelock v. Wright, 3 Mass, R. 104, Trover was the proper form of action.

Against a painter for not taking a good likeness, &c. This count seems equally in case and assumpsit.

For that the said E, being a face painter, and pretending great skill in painting, the said plaintiff, on &c., at &c., employed the said E to paint, well and artificially, a portrait of the said plaintiff, of a good likeness, and well resembling the said plaintiff, for the sum of $-, which was then and there paid to the said E, by the said plaintiff for that purpose, and the said E, then and there undertook to draw the said portrait, well, carefully and skilfully, of a good likeness, and resembling the said plaintiff; and although the said E, afterwards, viz. on &c., at &c., did paint for the said plaintiff, a portrait of the said plaintiff, and then and there deliver the same to the plaintiff, yet the said E did not well, carefully, and skilfully, paint the said portrait, of a good likeness and resembling the said plaintiff, but, on the contrary, in painting the said picture, then and there so ignorantly and unskilfully behaved himself, that the said portrait was not drawn in the least like or resembling the said plaintiff, and the painting thereof was so ignorantly and unskilfully done, that the said portrait was and is, of no use or value whatsoever, &c.

By residuary legatees v. executors for not sueing a bond given to testa

tor, &c.

For that whereas one C, on &c., at &c., by his bond of that date, bound himself in the sum of $-, to be paid to said A B on demand; and afterwards, the said A В made his last will and testament, and, among other things, devised the residue of his estate, after some particular legacies, to the plaintiffs, his children, in such proportion as by his last will dated &c. duly proved, approved, and in court to be produced, shall appear; and in his last will, appointed the said D, and one E and one F, his executors; and the said E and F refused said trust, but the said D accepted of it; and the bond aforesaid came to the hands of the said D, on the death of the said testator, to wit, on &c. And the said D, though he was bound by his office and duty of executor, to sue for and recover the said debt then immediately; yet he hath refused and neglected to sue for the same; but held the same bond in his hands until the day of &c., and then delivered the same to the plaintiffs, and though often requested, hath not sued for said debt, nor empowered the plaintiffs to sue for the same, but still unjustly refuses so to do; whereby the plaintiffs have entirely lost the debt aforesaid, and the same is become desperate and of no value, by the default and wilful negligence of the said D, no part thereof being paid to this day; to the damage &c. GRIDLEY.

Against master of ship for not delivering goods.

For that, on &c., at &c., the said D, being master of the schooner C, received on board the said D's said vessel,

quintals of good, merchantable fish, in good order, and well conditioned, to be by him, the said D, in his said vessel, transported to some port in Spain or Portugal, for the freight of $ per quintal, and there delivered in like good order and well conditioned as aforesaid, to the plaintiff or his assigns. Now the plaintiff in fact saith, that the said D, accordingly proceeded in his said vessel, with said fish on board, to Cadiz in Spain, and there arrived with said vessel, safe from the perils of the seas; yet the said D did not deliver said fish there, nor in any other port of Spain or Portugal, to the plaintiff or his assigns, but negligently secured and kept the same, and suffered the same to become wet and rotten; whereby great part thereof was utterly lost, and all damaged, &c.

In relation to the general power and duty of a master of a ship. See Law Summary, p. 271.

By owners against master, for not taking proper care of goods, &c.

FIRST COUNT. For that whereas the plaintiff, on &c., at &c., was owner and proprietor of a certain boat or vessel, called a keel; and being so, then and there, at the special request of the said 'T, retained and employed him in the service of the plaintiff, to be master and commander of said vessel, and to receive and to take on board thereof, from one M, at a place called in the county of &c., quarters of malt of the plaintiff, of the value of $—, and to carry and convey the same by water, from thence to B, in &c,, and at said B, to deliver the same to one A, for certain wages, hire, or reward, to be there for paid by the plaintiff, to the said T, as master of the said vessel. And although the said T, afterwards, on &c., at said E, had and received from the said M, the whole quarters of malt aforesaid of the plaintiff, and afterwards, on the same day, set sail and departed with the said vessel from the said T, towards and for the said B, and afterwards, on &c., arrived at said B, with the said vessel, and on the same day last mentioned at said B, delivered to the said A, a part viz. quarters of said malt; yet the said T, not regarding the duty of his employment, so badly, carelessly, negligently, and improvidently behaved himself, in said employment, and took so little and bad care of quarters of the malt, residue of the quarters of malt, so received by him as aforesaid, that the said T did not deliver the same quarters of malt, or any part thereof to the said A, at said B, or elsewhere, although often requested; but, on the contrary, by and through his own mere neglect and default, and through his carelessness and improvidence, suffered the same, and every part thereof, while the same were, and continued in his possession as aforesaid, for such carriage, to be embezzled and wholly lost, viz. at &c.

SECOND COUNT. And whereas the plaintiff, on &c., and from thence to &c., was owner and proprietor of another vessel; and the said E was, during all that time, master of the said vessel, retained and employed as such by the plaintiff, and, in his service, to navigate the same from place to place, and to take care of the last mentioned vessel, and of all goods delivered to him, as such master, or put on board the same for carriage from place to place, for wages, hire or reward, to be therefor payable and paid by the plaintiff to him, as such master of the vessel aforesaid, viz. at &c.