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![handle is hein.slavery/ssactsengr0098 and id is 1 raw text is: EDWARD V. TREVELLICK
to this plea, and also replied that the defendant did what was complained of, under
circumstances which did not authorize the defendant to pay money into court, and
that there was not any statute under or by virtue of which the defendant was authorized,
or empowered or entitled so to do.
The action not being one in which money could be paid into court according to
the general law, the defendant could only have a right to pay it in, if he had been
acting in some character, or under some special circumstances, which entitled him,
under the provisions of some statute, to pay money into court; and the question
raised was : Whether, in such case, the one party is to state, and the other party to
deny, if he choose, the special character or circumstances which give the right [58] to
pay money into court, contrary to the usual rule of law in such action; or, Whether
the plea is to be in the form given by the Common Law Procedure Act, 1852, which
merely states the payment into court and the sufficiency of the sum paid in, leaving
the plaintiff to apply to a Judge or the Court, if the money is paid in under circum-
stances not bringing the case within the special provisions of any statute.
We were referred to two decisions in the Court of Exchequer on this subject, Aston
v. Perkes (15 M. & W. 385) and Key v. Thimbleby (6 Exch. 692). These decisions were
upon the form of plea as given by the new rules before The Common Law Procedure
Act; but it was conceded in the argument that there was not any material difference
made in this respect by the Common Law Procedure Act. It was strongly pressed
upon us that, where the payment of money into court was to be by plea, and where
it could only lawfully be paid in under particular circumstances, the party ought,
according to the usual rules of pleading, to allege on .the record the circumstances
entitling him to pay money into court, contrary to the usual rules of law, and that the
other party ought to be allowed to contradict such allegations; and that a matter,
frequently involving nice questions of law and complicated questions of fact, ought
not to be left merely to the decision of a Judge at Chambers, whereby the parties are
deprived of the advantages of an open trial by jury, and of a writ of error.
Whatever force we might have been disposed to give to these arguments, we think
that we are bound to act upon the authority of the two cases, in both of which [59]
the Court of Exchequer proceeded upon the principle that the plea is not, in cases like
the present, to state the character or special circumstances by reason of which the
defendant seeks to plead the payment of money into Court.
We bow to the express authority of a Court of co-ordinate jurisdiction, and think
that these decisions can only properly be questioned in a Court of error : and, upon
the authority of the decisions referred to, we give judgment that the plea is good, and
the replication bad.
Judgment for the defendant.
EDWARD against TREVELLICK. Friday, June 23d, 1854. Action by a seaman for
work and labour on board a British registered ship Y. Plea: that the work was
done after the passing of stat. 7 & 8 Vict. c. 112; that plaintiff had engaged
himself on board a British registered merchant ship C. as seaman for a voyage
from Liverpool to San Francisco, which was continuing during the performance
of the work and labour; and plaintiff belonged to the vessel C. for the said
voyage, within the meaning of the Act; and, whilst he was such seaman on board
the C., and before doing or contracting for the work and labour, deserted the
C. within the meaning of the Act (sect. 9); and, while he was such deserter and
belonged to the C., engaged himself with the defendant, who was master of the
Y., as seaman, for wages: and that the action was brought to recover such wages:
and that the desertion was entered in the log book of the C., and certified by
the signatures of the master and mate of the C.-Replication : that, before
plaintiff deserted the C., the captain and officers of the C., on many occasions,
flogged and punished plaintiff with great and unreasonable cruelty and severity;
that such floggings and punishments were not rendered necessary by plaintiff's
conduct, but were unnecessary and unreasonable; that the plaintiff requested
the captain and officers to desist, which the captain refused to do : and thereupon
plaintiff, because he had just and reasonable cause to believe, and did believe,
that the captain and officers would continue to punish and flog him with such
great and unreasonable cruelty and severity, did, in order to escape from such
4 EL. & BL. 8,.](ViewImageLocal?handle=hein.slavery/ssactsengr0098&div=1&collection=&method=preview&ext=.png&size=3)