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![handle is hein.slavery/ssactsengr0490 and id is 1 raw text is: THE VIBILIA
witness, in answer to an interrogatory, admits, that the mate did not make use
of any violent or abusive language.
This account differs very materially from that given by Merchant, and also
from the mariner's plea; but it is an account confirmed by Thomas, who [226] is
examined on the defensive allegation ; for, by the death of the mate, the owners
are deprived of his testimony.
This is the whole of the testimony on this part of the case, and it establishes a
case very different from that represented in the summary petition, and shews, that
whatever words were used by the mate they were spoken in answer to a con-
tumacious refusal by the mariner to do his duty and to work. But the case hardly
rests here ; for it is part of the mariner's owyn plea, that he was ordered by the
captain to return on board, and that he was desirous so to do ; and that he actually
returned for that purpose. But Merchant, his own witness, does not say that he
made any such declaration to the mate on the Sunday, or that he requested to see
the master, who was then on board. It was his duty to have made this declaration
to the mate ; and also, both in justice to himself and to his owners, to have appealed
from the inferior authority of the mate to the master : for that the master knew of
the refusal of the mate to receive this mariner on board, is admitted to be an aver-
ment without proof. It is impossible, then, that the Court can give credit to the
summary petition on the evidence of Merchant alone on this point, in the absence
of all proof of the natural circumstance of explanation and solicitation that ought
to have accompanied a sincere desire on the part of this man to return to his duty.
I think the account is incredible on the evidence of Merchant ; and it is still further
contradicted by the witnesses on the defensive allegation. Thomas says,- Both
[227] he and the mate conversed with Smith on shore, and advised him to return
to his duty, but he refused. The captain also deposes,- that he advised Smith
to return to his duty, but he refused, observing that his messmates would laugh at
him for returning after having threatened so often to quit the ship. And the
subsequent conduct of the master on the Monday is agreeable to this state of facts :
for he waits on the agent of the ship Vibilia, and informs him that Smith is a
deserter, and warns the agent (the captain being too ill to be spoken to), and the
boat's crew of that ship, not to take Smith on board.
On this view of the evidence, I cannot hesitate in pronouncing on which side the
preponderance inclines: I must again say, that Smith has not proved his case
either in form or in substance; but, on the contrary, he appears to have been induced,
either by motives of resentment, or by a hope of better wages, which he obtained,
to desert his duty to his original employers at a most critical part of the voyage,
and in a quarter of the globe where the temptation to desert is notoriously strong.
The Court upon the effect of this evidence, is bound to decide that Smith failed in
the duty which he owed to the owners of the Jupiter, and that his conduct amounts
to a forfeiture of his wages : and, I therefore, pronounce against his demand.
Wages forfeited.
[228] VmILIA -(Corbet). January 29, 1829.-In a suit for wages, the owners,
having pleaded the desertion of the mariner from another vessel, and the pay-
ment of his wages into Greenwich Hospital, under statute 4 G. IV, c. 25, s. 11,
were dismissed, but without costs. Semble, that it would have been sufficient
to allege such facts in acts of Court.
Smith, the mariner, whose wages were declared forfeited in the preceding case,
sued, in this case, for the wages he had agreed for and earned on board the
Vibilia (the ship in which he entered at Jamaica after his desertion), upon her
return voyage to this country. In answer to this demand an allegation on the part
of the owners had been admitted, pleading 4 G. IV, c. 25, s. 11, which requires owners
of vessels, in which wages have been earned by mariners deserting from another
ship, to pay into Greenwich Hospital the amount of such wages; and further alleging
that they had so done, and had complied with the statute.
Lushington, for the owners, now applied for their dismissal, and that Smith
might be condemned in costs. The owners had been exposed to all the inconvenience
and expense of a suit, notwithstanding they had acted agreeably to the provisions
of the statute.
The Court.-Some part of the expenses might perhaps have been spared by
2HAGG. 226.](ViewImageLocal?handle=hein.slavery/ssactsengr0490&div=1&collection=&method=preview&ext=.png&size=3)