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![handle is hein.slavery/ssactsengr0454 and id is 1 raw text is: 710
THE ' HEBE
2 W. ROB. 146.
payment of debts due to him by the party proceeding in the cause. Still, however,
the evidence of these witnesses is entirely in unison with the evidence of the custom-
house officer, upon a most important and essential point, viz., they all prove a return
on board the ship upon the 1st of December; and I must say that, in my judgment,
the evidence of these witnesses, supported as it is by that of the owner's witness,
Packhorwood, greatly outweighs the evidence of the three boys, who only swear,
that they did not see the mariner Hulton on board, not that he was not on board.
Their evidence only tends to prove a hegative, whilst the testimony of the plaintiff's
witnesses, on the con-[146]-trary, supported by the testimony of the custom-house
officer, directly establishes an affirmative. I am of opinion, therefore, that under
the circumstances of the case, I cannot pronounce that the mariner has incurred a
total forfeiture of his wages by an absolute desertion in the present instance. I
have felt considerable hesitation as to whether I ought not to have mulcted him of
a portion of his earnings, under the 7th section of the Act, but I have found a difficulty
in so doing upon two grounds,-
1st. That no reference has been made in the pleadings to any charge of temporary
desertion.
2ndly. No such charge has been contended for in the argument at the Bar.
Under these circumstances, therefore, although I think that in pronouncing for
a temporary desertion, I should more nearly meet the truth and justice of the case,
I must dismiss the defence of the owner, and pronounce in favour of the claim for
the entire wages, and, of course, with the expenses.
THE HEBE -(Hampton). June 13, 1843.-Objections of pleading may be taken
to any one of the component parts of an act on petition, but objections of this
nature should not be taken without substantial reasons to support them. A
rejoinder in an act on petition must not state new matter of defence, unless
such matter has come to the knowledge of the party since his answer was given
in. But matter subsidiary of the defence contained in the answer may be
stated in a rejoinder, when the reply to the answer takes issue upon the matter
of defence'there stated. A party cannot lend money upon bottomry of a vessel,
if, at the time, he is indebted to the owners, in respect of the vessel.
[S. C. 4 Notes of Gas. 361 ; 7 Jur. 564. Referred to, The Karnak, 1868, L. R.
2 Adm. & Ecc. 303 ; The Empire of Peace, 1869, 39 L. J. (Adm.) 14. See
further, p. 412, post.)
This was a question as to the admissibility of a rejoinder in a cause of bottomry.
An act on petition, an answer, and a reply had been given in and admitted in the
cause. The rejoinder to the reply was now opposed by Haggard and Harding, for
the bondholder.
Addams and Robinson, contra.
The substance of the various pleas, and of the [147] objections in the judgment,
are fully noticed by the Court.
Per Curiam.-In proceeding to consider the objections which have been taken to
the admission of this plea, I would, in the first instance, observe that, although
under the authority of the decision of Lord Stowell (a), in the case of The Ville de
Varsovie, it is clearly competent to the parties in a suit to take objections of this
kind, yet these objections should not be raised without grave and substantial reasons
in support of them. Cases may unquestionably occur, like the case decided by
Lord Stowell, in which it may be right and proper to bring them before the Court,
especially where the preliminary discussion might prevent the introduction of much
irrelevant matter, which, if admitted, would lead to the accumulation of unnecessary
evidence. Where, however, no such consequence is likely to result from the admission
of the plea, the Court will be disposed to discontinue the discussion, as tending
to defeat the objects for which the summary form of proceeding was introduced
into the practice of the Court, viz., expedition, and the avoidance of expense to the
suitors.
Having thrown out this observation, I will now direct my attention more immedi-
ately to the objections which have been offered to the admission of the present
rejoinder. It has been objected, in the first place, that the rejoinder does not contain
(a) Unreported on this point.](ViewImageLocal?handle=hein.slavery/ssactsengr0454&div=1&collection=&method=preview&ext=.png&size=3)