port of discharge, and consequently, as the ship had not arrived there, the plaintiff was precluded by the express stipu lation from recovering any part of his wages, nonsuited the plaintiff. On motion to set aside the nonsuit, the Court of King's Bench concurred in opinion with the C. J.

There has not been any case wherein it has been decided, that a ship seized by way of retaliation, and afterwards restored, has been considered as captured; or in which the consequences of capture, as dissolving a contract for wages, have been considered as attaching.

Seizure, even hostile seizure, is not necessarily capture, though such is its usual and probable result. The ultimate act or adjudication of the state, by which the seizure has been made, assigns its proper and conclusive quality and denomination to its own original proceeding. If it condemn in such case, it is a capture ab initio; if it award restitution as an act of justice, it pronounces on its own act, as not being a valid act of capture, but as an act of temporary seizure and detention upon grounds not warranting the condemnation of the property, or the dealing with it as captured (14). Hence, in the case of the scamen who were forcibly taken out of British merchant ships at Petersburgh, by order of the Russian government, and marched into the interior of the country, after which hostilities between Great Britain and Russia took place, but on the re-establishment of peace, the ships of both countries were restored, and the seamen were permitted to return with their vessels, which brought home their cargoes and earned their freight; it was holden, that this seizure, however hostile in the manner, so far partook of the nature of an embargo in its result, and not of a capture, that it did not put an end to the contract of the seamen for wages, even during the time of the detention and imprisonment: but, even considering it as a temporary capture, yet, like the case of a capture and recapture, the seamen were still entitled to their wages; their being so entitled depended on the ship earning her freight for the voyage, and the performance of

z Per Ellenborough, C. J. delivering a Beale v. Thompson, in error, 4 East, the opinion of the court in Beale v. 546. Thompson, 4 East, 561.

(14) "It seems to be immaterial for this purpose, whether the restitution be awarded by the government of the country, as an art of state, or by any of the ordinary courts of civil judicature to which the administration of justice on these subjects is usually delegated." Per Lord Ellenborough, C. J. 4 East, 561.

their stipulated duty; and here freight for the voyage was ultimately earned, and the seamen were not guilty of any breach of duty; for the stipulation in the articles (15), not to be on shore under any pretence, without leave, before the voyage was ended, must be understood of a being on shore by the party's own unauthorised act; and even if such imprisonment on shore could be so considered, vet the master having afterwards received them again on board, without objection, amounted to a dispensation of the service in the interval, and entitled them to wages according to the original contract.

If a seaman can prove that he was disabled from performing his duty by an accident, e. g. by receiving a blow from a piece of timber accidentally falling on him, he will be entitled to recover his wages for the whole voyage, in like manner as if he had actually served.

A seaman, who is impressed before a ship returns to a port of delivery, is entitied to his wages pro tanto, if the ship complete her voyage; but not if she is captured on her

return.

But in a case where the defendant gave a written promise to pay the plaintiff's intestate a gross sum (thirty guineas,) provided he proceeded, continued, and did his duty as second mate in a certain ship, from Jamaica to Liverpool, and the intestate, who had regularly performed his duty, died about a month after the ship had sailed, and before her arrival at Liverpool; and it appeared, that the common rate of wages was 4. per month, when the party was paid in proportion to the time he served, and that the voyage was generally performed in two months; it was holden, that the representative of the intestate was not entitled to recover any wages on the express contract, because it was an entire contract and not divisible; nor on an implied contract, by reason of the axiom of law, that where the parties have entered into an express contract, no other can be implied.

During a voyage the ship was wrecked, and the captain gave the mariners an order upon the owners for the amount of their wages to the date of the wreck, acknowledging at the same time that he had hired them by the month. It was

b Chandler v. Greaves, 2 H. Bl. 66. n.
But see the remarks of Grose, J.
6T. R. 325.
Per Holt, C. J. in Wiggins v. Ingle- e Cutter v. Powell, 6 T. R. 320.
ton, 2 Ld. Raym. 1211.

d Anon. Loudon Sittings, Dec. 11th,
1806. Ld. Ellenborough, C. J.
2 Camp. N. P. C. 320. u.

(15) The seamen had signed the articles in the usual form.

holdenf, that under these circumstances, no action for wages could be maintained by the mariners against the captain, at least without proving that they had first made a demand upon

the owners.

It only remains to state the remedies which the law has provided for the recovery of seamen's wages.

If the hiring be on the usual terms, and made by word or by writing only, without seal, the seamen, or any one or more of them, and every officer, except the master, may sue in the Court of Admiralty, and may, by the process of that court, arrest the ship as a security for their demand (16), or cite the master or owners personally to answer to them.

But if the agreement be by deed, and the terms of such agreement are not the usual terms, then the only remedy is in the common law courts (17).

But whether the party sue in the Court of Admiralty", or bring the action in the courts of common law; in both cases the suit or action must be commenced within six years next after the cause thereof has accrued, unless the party suing should have been under any of the disabilities mentioned in the statute of limitations, as infancy, absence beyond the seas, &c.

If foreign sailors stipulate in their own country before the commencement of a voyage that they will not sue the captain for any money abroad, but be satisfied with what he may advance them abroad, in deduction of their wages, such stipulation is binding, and an action cannot be maintained by the seaman for his wages in the courts of this country*.

(16) In proceeding against the ship in specie, if the value thereof be insufficient to discharge all the claims upon it, the seaman's claim for his wages is preferred before all other charges; for the labour of the seamen, having brought the ship to the destined port, has furnished to all other persons the means of asserting their claims upon it, which otherwise they could not have had. Abbott,

430.

(17) In the courts of common law the seamen may sue either the master, as the person immediately contracting with them, and answerable to them, or the owners, as the persons virtually contracting with them through the agency of the master, and answerable for the performance of his engagement. Abbott, 431.

CHAP. XXXVI.

SLANDER.

1. Scandalum Magnatum.

II. Of the Action for Slander, and in what Cases it may be maintained.

HI. Of the Declaration, and herein of the Nature and Office of the Innuendo. IV. Of the Pleadings-Evidence-Costs.

I. Scandalum Magnatum.

SLANDER spoken and published of a peer is termed scandalum magnatum.

The stat. Westm. 1. c. 34. commands, "that none be so hardy to tell or publish any false news or tales, whereby discord, or occasion of discord, or slander, may grow between the king and his people, or the great men of the realm; and he that doth so, shall be taken and kept in prison, until he hath brought him into the court which was the first author of the tale (1)."

And by stat. 2 R. 2. c. 5. "None shall devise or speak false news, lies, or other such false things of the prelates, dukes, earls, barons, and other nobles and great men of the realm, and of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, justices of the one bench or the other, and other great officers of the realm, and he that doth shall incur the pain of the stat. Westm. 1. c. 34."

(1) See Sir Edw. Coke's exposition of this statute, 2 Inst. 225. VOL. II.

K K

And by stat. 12 R. 2. c. 11. "When any such [person, as is described in the foregoing statutes,] is taken and imprisoned, and cannot find him by whom the speech be moved, he may be punished by the advice of the council, notwithstanding the statutes of Westm. 1. c. 34. and 2 R. 2. c. 5."

The foregoing statutes do not expressly give an action, yet it has been holden, that the party injured may maintain an action on the stat. of 2 R. 2. c. 5. upon the principle of law, that an action lies on a statute, which prohibits the doing an act to the prejudice of another. Though the dignity of viscount was not created at the time when this statute was made, yet it has been holden, that such dignity is within the statute; and a peer of Scotland, since the union, may also take advantage of this statute (2).

The form of declaration is, tam pro domino rege quam pro seipso (3), concluding contra formam statutis. The stat. 2 R. 2. c. 5. is a general law, and consequently need not be pleaded; but if the party undertake to recite it, and fail in a material point, it will be fatal. It must appear on the face of the declaration, that the party injured was unus magnatum at the time when the words were spoken". Special bail is not required in this action1, and the venue cannot be changed upon the common affidavit. Neither can a writ of error be brought upon it in the Exchequer Chamber', for it has been holden,

a 2 Inst. 118. 10 Rep. 75. b.

b Visc. Say and Seale v. Stephens, Cro. Car. 135.

e Visc. Falkland v. Phipps, Comyn's R. 439.

d Vid. Entr. 74.

e Doct. Plac. 339. 4 Rep. 13 a.

f Ld. Shaftesbury v. Ld. Digby, 2 Mod. 98.

g4 Rep. 12. b. for instances of misrecital, what fatal, and what not, see 1 Com. Dig. 189. (B.) 3.

h Adm. Cro. Jac. 136.

i 12 Mod. 420. 2 Mod. 215. S. P.
k Duke of Norfolk v. Alderton, Carth.
400. D. of Richmoud v. Costelow,
11 Mod. 234. 2 Salk. 668. 1 Lev.
56. 1 Bac. Abr. 36.

I Ld. Say and Seal v. Stephens, Cro.
Car. 142. Ley, 82. S. C. Sir W.
Jones, 194. S. C.

(2) Some of the old precedents state the plaintiff to have vocem et locum in parliamento. See Vid. Ent. 74. and Bohun, 319, 320.; but these words are unnecessary, and they are omitted in one precedent in Herne, 200. Vid. 61. and in another in Herne, 201. · Vid. 63.

(3) An action upon a statute which prohibits a thing, but does not give any penalty, must be brought tam pro rege quam pro seipso, because in such case the king is to have a fine. Waterhouse v. Bawd, Cro. Jac. 134. See the precedents cited in n. (2).