ELLIS V. TURNER. [ *532 ] which is between Hull and Gainsborough; for the carriage of which goods it was understood, but not expressed by the parties, that the customary freight was to be paid by the plaintiff to the defendants; but no agreement was entered into by the plaintiff for the payment of any extra freight, by way of indemnity or insurance against risk or loss. The vessel at the same time took in other goods at Hull to be delivered at Gainsborough. The freight of the carriage of goods from Hull to Stockwith is the same as from Hull to Gainsborough. The vessel had, before the voyage in question, taken in goods at Hull for Stock with and Gainsborough; and sometimes delivered the goods for Stockwith at that place, without carrying the same forward to Gainsborough; and at other times, had carried the Stockwith goods forward to Gainsborough, and delivered the same at Stockwith in returning from Gainsborough. On the voyage in question, the plaintiff's goods were delivered to the master of the defendants' vessel by a clerk or servant of Messrs, Martin & Rooth, on condition that he would deliver them at Stockwith as he passed by in his way to Gainsborough ; which he (the master) expressly undertook to do. The undertaking to deliver the plaintiff's goods at Stockwith as last aforesaid, was made by the master of the defendants' vessel without the privity or knowledge of the defendants. It is not usual for the master to confer previously with the owner of the vessels, as to the terms on which he is to take goods on board, he having a general authority or discretion to receive and convey goods for the customary freight from Hull to Stockwith and Gainsborough as above-mentioned. The defendants' vessel arrived in perfect safety at Stockwith; and the master stopped and delivered some part of the goods which were consigned there, and was particularly requested by Mr. Dales (a wharfinger at Stockwith) to deliver the remaining part of the goods which he had on board for Stockwith; but the master, without the privity or knowledge of the defendants, refused to deliver such goods, alleging that he was unable to deliver them by reason of their being underneath the goods intended to be delivered at Gainsborough. In proceeding from Stockwith to Gainsborough the defendants' vessel, without any want of ordinary care or attention of the master or crew, sunk in the river Trent, whereby the plaintiff's goods were damaged. The proceeds arising from the sale of the plaintiff's goods in their damaged state, amounting to 187. 10s. were received by the defendants, and have since been paid into court; and being deducted from the above sum of 106l. 18s. 5d. reduces the plaintiff's demand to 881. 88. 5d. ; upon which last-mentioned sum the defendants have also paid into Court the sum of 101. per cent. In September and October, 1798, printed hand-bills, of which the annexed is a copy, with the names of the defendants, and of several other owners at the foot thereof, were left at the respective dwelling-houses of the merchants and wharfingers in Hull; and were also posted up at the Exchange and Custom-house, and at the wharfingers' staiths and warehouses, and in other public parts of the town of Hull; but the same were not published in the Gazette, nor in the London or provincial newspapers. Martin & Rooth, by whom the plaintiff's goods were so shipped in the defendants' vessel, had such printed hand-bills left with them, and knew the contents thereof, previous to the time when they so shipped the same, but had not given any information thereof to the plaintiff, who is a grocer, and resides at Mansfield, in the county of Nottingham; nor did the plaintiff know of any such notice having been given by the defendants. The question for the opinion of the Court is, *Whether the defendants are liable to pay any further sum beyond what they have paid into Court? if they are so liable, then the verdict to stand; if otherwise, a verdict to be entered for the defendants. When this case was called on for argument: Lord KENYON, Ch. J. (addressing himself to the defendants' counsel) asked, Whether the defendants were not at all events liable in this action, they having had an opportunity of deliver †The substance of that notice was, That in future the owners of vessels would not be answerable for any loss or damage that might happen to any cargo, unless such loss or damage should be occasioned by the want of ordinary care and diligence in the master and crew; in which case they would pay 107. per ELLIS V. TURNER. [ *533 ] ELLIS 7. TURNER. ing the goods at Stockwith in safety, before the vessel proceeded towards Gainsborough ? Balguy, for the defendants, answered, That this was an action on the contract, for not safely carrying and delivering the goods at Stockwith; and that the non-delivery of the goods there was owing to the misconduct in the master of the vessel, for which the defendants were not answerable in this form of action; and that if they were liable at all, the action should have been for the tort. LORD KENYON, Ch. J.: Perhaps, as between the defendants and their servant, the master of the vessel, this was misconduct in the latter; but, as between the defendants and third persons, the former are answerable upon their contract. The maxim applies here respondeat superior. The case is shortly this :-This vessel, belonging to the defendants, trading from Hull to Gainsborough, took on board some goods belonging to the plaintiff, which were to be delivered at Stockwith. The vessel went safe as far as Stockwith, and there delivered part of the cargo; but the master of the vessel finding it inconvenient to deliver the rest there, proceeded on her voyage, and sunk before her arrival at Gainsborough. The defendants (the owners) are called upon to make good the loss that happened to the plaintiff's goods; and as the vessel reached Stockwith in safety, and might have delivered the plaintiff's goods there, I think that this action may be maintained; for though the loss happened in consequence of the misconduct of the defendants' servant, the superiors (the defendants) are answerable for it in this action. The defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them; as if he were to commit an assault the course of his voyage. upon a third person in Per CURIAM: Postea to the plaintiff. THE KING v. JOSEPH JUKES AND TWO OTHERS. (8 T. R. 542-545.) A summary conviction for any offence created by statute, must negative every exception contained in the clause creating the offence; and a defect in omitting to do so, is not aided by a proviso in the statute, That "no conviction for any offence in the act shall be set aside for want of form, or through the mistake of any fact, circumstance, or other matter, provided the material fact alleged were proved;" for this in effect requires all material facts to be alleged; and it is a material fact that the defendant did not come within any exception in the enacting clause. If a statute, authorising a summary conviction before a magistrate, give an appeal to the sessions, who are directed to hear and finally determine the matter, this does not take away the certiorari, even after such an appeal made and determined.t THIS was a conviction on the stat. 36 Geo. III. c. 60, ss. 3 and 4, in the following form :-"Be it remembered, That on, &c. R. Thursfield, of, &c. came before us, &c. and † Vide Rex v. Mosley and others, 2 Burr. 1042; Rex v. Eaton, 2 Ves. Sen. 89; and Rex v. Sparrow and another, ib. 196, n.; and vide Cates qui tam v. Knight, 3 Ves. Sen. 442. By s. 3, no person shall mark or cause to be marked, &c. in or upon any part of any metal button any word, &c. indicating the quality thereof, except the words "gilt" or "plated," respectively; and and no person shall place or pack, or cause to be packed, &c. for sale, in or upon any card (except the pattern card, or pattern cards) or paper, &c. or expose to sale, or cause to be sold or exposed to sale, any metal buttons having any word, &c. indicating the quality thereof, other than and except the words "gilt" or "plated" respectively marked, &c. in or upon any part thereof, upon pain of forfeiting, in every such case, such buttons, together with 5l. for any quantity exceeding one dozen and not exceeding 12 dozen, and for any quantity exceeding 12 dozen at the Sect. 4 provides, That nothing in 1800. May 17. [ 542 ] [*543 ] v. JUKES. THE KING informed us, That J. Jukes, &c. on, &c. did unlawfully and fraudulently put and place for sale, and cause to be put and placed for sale, in and upon certain cards and papers, divers metal buttons; to wit, 1780 dozen of metal buttons, the said metal buttons and each of them having marked or stamped on the underside thereof certain words, indicating the quality thereof, to wit, on 942 dozen, part thereof, the words 'double gilt,' and on 838 dozen, other part thereof, the words 'treble gilt,' the said buttons so respectively marked 'double gilt,' or any of them not being double gilt, within the true intent and meaning of the statute in such case made and provided; and the said buttons so marked 'treble gilt,' or any of them not being treble gilt within the true intent and meaning of the statute in such case made and provided; contrary to the form of the statute," &c. [ *544 ] When this case was called on : Lord KENYON, Ch. J. observed, That this conviction could not be supported, because the information did not negative the exception introduced in the clause enacting the offence, viz. that the buttons had been exposed to sale in this instance upon the pattern cards. In like manner as in convictions on the game laws, it had always been deemed necessary to negative in the information the defendants' qualifications to kill game that the only cases where this was not necessary to be done were, where the exception was introduced in a subsequent clause; and there it must come by way of defence on the part of the defendant. Burton Morice, in support of the conviction, admitted that the current of authorities tended to establish that distinction, but referred to R. v. Theed, † where to a conviction for obstructing an excise-officer in coming to weigh candles, by virtue of the stat. 8 Ann, c. 9, s. 10 (which gives the officer *power to enter by day or night; but if by night, then it is required to be in the presence of a constable) it was objected, that it did not state whether the entry were by day or night; and non constat but that it might have been by night without a constable; and then the defendant might lawfully obstruct him. † 1 Str. 608. |