war, they should forfeit their wages; which was directly contrary to a clause in the late act. And secondly, that where the agreement was by writing signed and sealed, there also a prohibition should go, which was likewise the present case. And the only question therefore remaining was, whether or no the statute reached to this case. And his Lordship gave his opinion that it did not; since as this was a contract by deed, it was dehors the act, which only required a contract in writing; and it could not be supposed that the act intended to give the Court of Admiralty the cognizance of

[467] agreements for mariners' wages made by deed; that must depend upon the trial of the validity. of such deed, which could not be otherwise than by a Jury at Common Law, being left as it was before; that this case came within the case of Opy and Addison, and as the late statute did not take it out of the old rule, it must still go by that rule. The other Judges concurred in the same opinion; and a prohibition was granted.

1

The report of the last case on this subject, which was a suit instituted in the Court of Admiralty by seamen employed on board a ship in the service of the East India Company, is given at considerable length, and although the particulars of the deed, under which the seamen were hired, are not stated, it may be collected from the report that the deed contained a clause, by which it was stipulated, that the seamen should not be entitled to wages, unless the ship should return home; but it does not appear whether this event had taken place. or no. The Court granted a prohibition upon the authority of the two former cases, and Lord Mansfield took notice that the seal was not the only circumstance,

1

in which this case differed from the ordinary contract for mariners' wages (y).

6 From this view of the decisions of the Courts at Westminster Hall, it appears that a [468] prohibition has not in any instance been actually

granted where a contract was upon the ordinary terms, merely because it was made by deed; but that in each of the cases the Court considered that circumstance alone to be a sufficient ground for a prohibition. For which the reason seems to be, that as the suit of the seamen in the Court of Admiralty was at first allowed only as a matter of indulgence, and considered as an excepted case not properly belonging to the jurisdiction of that Court, the exception was confined to the case of ordinary contracts not made under seal. For if a contract under seal contain such clauses and covenants only as are conformable to the general rules, which govern the administration of justice in the Court of Admiralty, neither the actual existence, nor the legal effect and" import, of the deed can become the subject of litigation in that Court. The seamen are not bound to make the deed the foundation of their claim, either by the general course of proceedings in the Court of Admiralty, or by the statute; and as it can never be their interest to deny the existence or execution of a deed pleaded by the defendant, containing only the usual terms, upon which their claim would rest, if such a deed did not exist, the objection to the mode of trial pursued in that Court, and to the necessity of two witnesses to prove the execution of a deed, can hardly arise. In a case relating

(y) Howe v. Nappier, 4 Burr. 1944. The records of suggestions for prohibitions are in general very regularly kept at the office of the Clerk of the Papers, but the par

ticular suggestion in this case could not be found, although a very diligent search was made by the officer.

to the jurisdiction of the Court of Admiralty on [469] a deed of hypothecation of a ship by the master, which came before the Court of King's Bench a few years ago, one of the learned Judges of that Court (z) said, "If the Court of Admiralty, has jurisdiction over the subject matter, the circumstance of the instru❝ment being under seal does not deprive them of their "jurisdiction" (a).

7. In a case where the defendants in the Court of Admiralty pleaded a deed, by the terms whereof the mariners agreed to subject themselves to the loss of their wages on particular circumstances, and the plaintiff replied that the deed was obtained by fraud and circum→ vention, and the Court of Admiralty déclared it to have been so, and gave sentence for the plaintiff to recover his wages; the Court of King's Bench, upon application for a prohibition, said, "This is only a deed on one "side to forfeit the wages upon particular circumstances, "but will not enable them to sue for their wages at law; "the deed therefore comes in only by way of incident, "and then they may proceed to try it. There can be "no prohibition" (b).

3. 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 pre[470] ferred before all other charges (c), for the same reason that the last bottomry-bond is preferred to those of an earlier date: the labor of the seamen, having brought the ship to the destined port, has furnished to all other persons the means of asserting their

(=) Mr. Justice Buller, 3 Ter. Rep. K. B. 170.

(a) Menetone v. Gibbons, 3 Ter. Rep. K. B. 207.

(b) Buck v. Atwood, 2 Stra. 761.

(c) The FAVORITE, De Jerseyja 2 Rob. A. R. 232. French Ordinance, liv. 1. tit. 14. de la saisie dea vaisseaux, art. 16. and Valin there

on..

elaims upon it, which otherwise they could not have had (1),

9. But all suits and actions brought in the Court of Admiralty for seamen's wages must be commenced within six years next after the cause of such suit or action shall accrue, unless the party entitled to sue shall at that time be within the age of twenty-one years, a feme covert, non compos mentis, or imprisoned, or unless such party, or the party sued, shall be at that time beyond the seas; in which cases the suit may be brought within six years after the party suing shall be of full age, discovert, of sane memory, or at large; or either the party suing, or the party sued, shall return from beyond the sea (d). (2)

10. 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

(d) 4. Ann. c. 16. s. 17, 18, & 19. The length of time thus allowed may be very inconvenient in the case of a suit against the ship, if

the property thereof has been changed. The French Ordinance allows only one year.

(1) So in Blaine v. Ship Charles Carter, 3 Cranch. Rep. 328. the court held that seaman's wages are to be preferred to the lien of a bottomry bond.

(2) The act of Congress does not limit the time within which actions may be brought for mariners' wages. Probably the ship would be held discharged in the case of a purchaser, under the same circumstances as would discharge the lien of a bottomry bond. As to this, see Blaine v. Ship Charles Carter, 4 Cranch. Rep. 328, cited ante p. 160.

the performance of his engagement (1): And [471] actions in the Courts of Common Law are also limited to the same period of six years, with the

(1) So the master is liable for mariners' wages, although they have been hired by the owner. Farrell v. M'Clea, 1 Dall. Rep. 393. On abandonment of a ship under a policy of insurance, the owner, and not the insurer, is liable to the mariners for their wages. The contract between them is not dissolved. Brooks v. Dorr, 2 Mass. Rep. 39.

If an apprentice be impressed by the captain of a man of war, and the captain is informed that he is an apprentice, and refuses to discharge him, the master of the apprentice will be entitled in such case to recover his wages from the captain, who in such cases acts at his own peril. Eades v. Vandeput, 5 East. Rep. 39. note.

A receipt given by the mariners is not conclusive against his claim. Fraud, duress, misconception or mistake in either party, are open to inquiry. If in the settlement of the account any such ingredients appear, or any improper practices in obtaining the receipt are discovered, the whole matter is enquirable into, and justice must be done, notwithstanding any primâ facie evidence, arising on the face of such receipts, tending to foreclose investigation. Jackson v. White, 1 Peters. Adm. Rep. 179. Whiteman v. Ship Neptune, id. 180.

As the master is responsible to the mariners for their wages, he has been held an incompetent witness in libel for wages brought against the ship. Jones v. Brig Phoenix, 1 Peters. Adm. Rep. 201.; or an action against the owners. id. ibid. Atkins v. Burrows, id. 244. Malone v. Bell, id. 139.

Mariners cannot be witnesses for each other, if the witness and the party have a common interest in the point of contest, as if the question be loss of the ship, embezzlement, negligence, or misfeasance, equally affecting the whole crew, where all must