Callagan and others v. Hallett & Bowne, 1 Cole. & Cai. Cas. 179

Per Curiam. The defendant moves in arrest of judgment. The declaration states, 1st. That the defendants were owners of the brig Neptune ; that the brig, when at sea and bound for New- York, was in distress; that the plaintiffs contracted with the master to bring her safe into port for 500 dollars ; that they brought her in accordingly. 2d. T|ie like against owners. 3d. The usual counts on a quantum meruit. Three questions are raised : 1st. . Whether the action is maintainable on the first count, which involves two questions : 1. Could the master, by such contract, bind the owners ? 2.

Was the contract lawful, the plaintiffs being branch pilots belonging to the port of New-York? 2d. Can the defendant move in arrest of judgment after attending the execution of the writ of inquiry, and examining witnesses ? 3d. May not the court order an inquiry de nova on the third count, in the event of the first and second ijeing held bad ? The question of the right of the master to bind owners, it is not necessary to decide. The legality of the contract is most material.

The act for the regulation of pilots and pilotage for the port of New-York (7 sess. ch. 31. s. 2 and 3.) makes it the duty of pilots to give all the aid and assistance in their power to any vessel appearing in distress on the coast, and for neglect or refusal subjects them to a fine or forfeiture of their places ; but for the encouragement of such pilots who shall distinguish themselves by their activity and readiness to aid vessels in distress, it enacts, that the master or owner of such vessel shall pay to such pilot, who shall have exerted himself for the preservation of suck vessel, such sum for extra services as the master or owner and such pilot can agree upon ; and in case no such agreement can be made, the master and wardens of the port are empowered to ascertain the reasonable reward.

It being made the duty of the pilots to assist the defendants’ vessel, it was oppression in them to exact the stipulation in question. It would lead to abuses of the most serious nature if such contracts, founded on such considerations, were held to be legal. There are several cases in the books tending to show the leaning of courts of justice against the oppressions of persons in public trust, and the illegality of exacting previous reward for doing their duty.

The law allows them sufficient compensation for extraordinary exertion after the service performed; which shows it was an object with the legislature to prevent undue advantages being taken. We are, therefore, of opinion, the first and second.counts are bad, as contrary to public policy and the spirit of the act. As to the second question, whether it be too late to move in arrest of judgment after attending the execution of the writ of inquiry, we are of opinion the authorities adduced do not apply to questions on the merits, but only to formal defects in the pleadings.

On the third point we are of opinion, on the authority of Eddowes v. Hopkins, in. Doughs, that the plaintiff may, on payment of costs, have (if he solicits it) an inquiry de nova on the quantum meruit, reserving the question, hoivever, whether, on such inquest, he shall be entitled to more than his legal allowance, not having made the prescribed appeal to the master and wardens.