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![handle is hein.slavery/ssactsengr0172 and id is 1 raw text is: GOODTITLE V. BADTITLE
was a voyage from the port of London to Africa, from thence to the West Indies or
America, and afterwards to London in Great Britain or to her delivering port in
Europe, yet that the latter part of the description was not binding in a case in which
there was no delivering port in Europe, the captain having broken up the voyage in
the West Indies, according to the option which seemed to have been vested in him.
I doubted whether it was not a contract in the alternative; and if so, whether it
was not sufficient to describe that voyage which had really taken place (a). I am
now, however, inclined strongly to a contrary opinion, and think that the declaration
should have specified the agreement as it was stated in the articles. The contract in
the alternative should have appeared upon the record, and the fact of the voyage
having terminated in the West Indies should have been averred. And this will be
found to be the more necessary, if we attend to the policy of the various acts of
parliament which have provided different forms of articles for different voyages.
With respect to the additional perquisite of the average price of a negro slave, it is
impossible to consider it in any other light than that in which it was considered in
Webster v. De Tastet, namely, as wages. If the le-[120]-gislature have decided that
all agreements for wages shall be in writing, and the practice be not to put in writing
contracts for the price of one, two or more slaves, that practice, if allowed to prevail,
may be made the means of evading the provisions of the act.
HEATH, J. I am of the same opinion. It is not sufficient for the Plaintiff to
state in his declaration a certain voyage, as the consideration of his wages; but he
must specify what that voyage was.
ROOKE, J. Of The same opinion.
Rule absolute.
GOODTITLE, EX DEM. WANKLEN, v. BADTITLE. Feb. lth, 1800.
Affidavit of service in ejectment made by a person who saw the declaration served
and heard it explained to the tenant in possession, is sufficient to entitle the Plaintiff
to judgment against the casual ejector.
Williams, Serjt., moved for judgment against the casual ejector, and mentioned
that the affidavit of service was not made by the person who served the declaration,
but by a person who swore that he saw the tenant in possession served, and heard the
person who served him with it acquaint him with the true intent and meaning of the
declaration and notice.
The Court held this affidavit sufficient.
W. MAINWARING, G. B. MAINWARING, AND T. CHATTERIS v. NEWMAN.
Feb. 12th, 1800.
[Discussed, Boyce v. Edbrooke, [1903] 1 Ch. 842. Referred to,
Ellis v. Kerr, [1910] 1 Ch. 537.]
Assumpsit by A. B. and C. against D. as one of the indorsers of a promissory note
drawn by E. in favour of C. D. and (himself) E. then in partnership and by them
(a) See Layton v. Pearce, Doug. 15, where it was decided in the case of an
alternative contract, that the party who had not the option, could not state it as an
absolute contract. Lord Mansfield, indeed, there laid down that if the option had
been in the party pleading, it had been otherwise. On the authority of this dictum
it was contended, in Churchill v. Wilkins, 1 Term Rep. 447, that a contract in the
alternative, where the option is in the party pleading, may be stated as an absolute
contract; and this seems to have been admitted by 'Buller, J.; for his reasoning
went to shew that the contract in that case which was to deliver tallow at 4s. per
stone, and so much more as the Plaintiff paid to any other, was not a contract in the
alternative, but merely a contract depending on a contingency, and therefore not
within the above rule applicable to alternative contracts. However, in the subsequent
case of Tate v. Wellings, 3 Term Rep. 531, the Court held, that the Defendant could
not plead a contract which was in the alternative, as an absolute contract, though the
option was in himself. See also Perry v. Porter, 2 East, 2 S. P. and Shiphan v. Saunders,
2 East, 4, in notis S. P.
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2 BOS. & PUL. 12.0.](ViewImageLocal?handle=hein.slavery/ssactsengr0172&div=1&collection=&method=preview&ext=.png&size=3)