is, that if the hiring be on the usual terms, and made by word, or CH.XXIII. by writing only without seal, the seamen, or any one or more of them, and every officer, including the master, may sue in the Court of Admiralty, and may by the process of that Court arrest the ship as a security for their demand, or cite the master or owners personally to answer to them.

And the seamen may sue there not only for the wages earned in the course of a voyage, but for those earned in rigging and fitting out a ship for a voyage, on which they have engaged to proceed, if the owners do not afterwards think proper to send the ship on the intended voyage. And it seems also that they may sue there for the wages contracted to be paid to them for navigating a ship from one port of this country to another. And if a suit be there instituted, that Court can properly decide whether a place at which a ship may have arrived be a port of delivery so as to entitle them to wages.c In regard to foreign seamen, the Court of Admiralty has been in the habit of entertaining proceedings against ships in the ports of this country, at their suit for wages as due by the general maritime law, with the consent of the accredited agent of the Government of their country. Be it observed, the Court has the right to interfere in such a case, without any such consent, but it will not entertain the suit if notice of the intended proceeding be not given in the first instance. The claim must be first tried by the law of the country to which the ship belongs.e

I have said that seamen may sue in the Court of Admiralty, if the contract is made on the usual terms, and not by deed. It was decided in two causes, before the passing of the earliest statute requiring the contract to be in writing, that the Court of Admiralty had jurisdiction in the case of a written contract. And the recent statute contains a clause "that no seaman, by entering into or signing such agreement, shall forfeit his lien upon the ship, nor be deprived of any remedy for wages, &c. either against the ship, the master, or the owners thereof." The Court of Admiralty is not authorised to entertain a suit for wages under 201. (7 & 8 Vict. c. 93), unless it is apparent, under the circumstances, that justice could not be effectually administered by process before a magistrate. Where there is a special agreement differing from the ordinary contract of wages, the Admiralty Court has no power to adjudicate. But in a recent case, Dr. Lushington separated the agreement into parts, and took cognisance of that portion which related to wages, and rejected that which referred to the cabin stores. The contract, whatever be its form or nature, always remains in the possession of the master or owners. The statutes

a Wells v. Osman, 2 Ld. Raym. 1044; 6 Mod. 238; see also Mills v. Gregory, Sayer, 127; the Blake, 1 Wm. Rob. 75; the C. of L. Ib. 88.

b Anon. 1 Vent. 343. The application for a prohibition was after sentence; see 31 Geo. 3, c. 39, s. 6.

c Brown v. Benn, 2 Ld. Raym. 1247. d The Galubchück, 1 Wm. Rob. 143.

37.

e The John Frederick, 1 Wm. Rob.

f Bens v. Parre, 2 Ld. Raym. 1206, and the Mariner's Case, 8 Mod. 379.

The K. William, 2 Wm. Rob. 231. h The Maria, 1 Wm. Rob. 14; The Riby Grove, 2 Ib. 64; the Debrecsia, 3 Ib. 33.

i The Tecumseh, 3 Wm. Rob. 149.

Abbott on expressly ordain that where it becomes necessary to produce the
Shipping contract in Court, no obligation shall lie on the seamen to produce

it, and that no seaman shall fail in any suit or process for the reco-
very of wages, for want of the production of it. In the common
form of proceeding in the Court of Admiralty, the party who sues
for wages does not state how the contract was made; the founda-
tion of the suit in that Court is the service, and not the hiring; and
therefore, the objection that the hiring was upon special terms, or
was made by deed, does not appear upon the face of the com-
plainants' proceedings, but must be made by the defendants, if they
wish to rely on it. And they must make their objection and apply
to one of the Courts at Westminster Hall for a prohibition, before
sentence is given in the Court of Admiralty: if they suffer the
cause to proceed to a judgment upon the merits in that Court, they
cannot afterwards avail themselves of this objection. If the con-
tract for service be made upon terms and conditions differing from
the general rules of law, the service alone cannot entitle a seaman to
his wages; his right to them must depend upon the performance of
the stipulated terms. The construction of the instrument in which
those terms are contained, is a proper subject for the jurisdiction of
the courts of common law; and it is clear by the several authorities
on this subject, notwithstanding a seeming dictum in one case, to
the contrary, that upon the suggestion of such a contract made at
land and under seal, supported by the proper affidavits, the Courts
at Westminster Hall will prohibit the Court of Admiralty from pro-
ceeding in a suit instituted there. But it is not quite clear whether
the defendants ought, before they apply for a prohibition, to plead
the agreement in the Court of Admiralty as a bar to the jurisdiction
of that Court. In one of the cases on this subject, the Court of
K. B. is reported to have said, "If there is any special contract, as
is now suggested, the defendant may plead it in the Court of Admi-
ralty, and if that Court does not allow the plea, then it may be a
proper time to move the K. B. for a prohibition; for if it should be
granted before the plea is disallowed, it is a prejudging of the
justice of that Court." The course of the proceedings that had
taken place in the Court of Admiralty does not appear by the report
of any of the cases in which a prohibition has been granted. The
best reporter of the first of these cases
"A motion
says only,
was made for a prohibition to the Court of Admiralty in a suit
there for mariners' wages, upon a suggestion of a contract made for
them at land; and the Court held, that for the convenience of seamen
the Admiralty had been allowed to hold plea for mariners' wages,
but yet with this limitation, that if there be any special agreement,

"d

a 13 & 14 Vict. c. 93, s. 52.

b Buggin v. Bennett, 4 Burr. 2035. If a party who has pleaded a modus to a suit in the Spiritual Court for tithes suffer the modus to be tried in that Court, he cannot obtain a prohibition after sentence. Full v. Hutchins, Cowp. 422; vide Ex purte Evans, 2 Dowl.

e

N. C. 729; Hart v. Marsh, 5 Ad. &
E. 591, and cases cited.

c Bens v. Parre, 2 Ld. Raym. 1206; Sidney Cove, 2 Dods, 12; The Riby Grove, 2 Thorn. 207.

d The Mariner's Case, 8 Mod. 379; the Maria, 1 Wm. Rob. 141. Opy v. Child, Salk. 31.

by which the mariners are to receive their wages in any other CH.XXIII. manner than is usual, or if the agreement be under seal, so as to be more than a parol agreement, in such a case a prohibition shall be granted; and so it was granted in this case."a In the second case,b by the suggestion made in support of the motion for a prohibition, the defendant in the Court of Admiralty, after reciting the statutes relating to the jurisdiction of the Court of Admiralty, and the libel exhibited in that Court by the seamen (by which it appeared that they had during the voyage entered on board one of H. M.'s ships) set forth the contract which contained an express covenant, that if any or either of the seamen should depart from or leave the ship during the voyage, to go on board any of H. M.'s ship or ships of war during the voyage, or upon any other pretence or account whatsoever, without leave of the master, such seaman so deserting or leaving the ship should forfeit and lose all his wages and pay then due and owing; and averred that this contract was made on land in this country, and sealed and delivered by the parties; and that, although he had offered to prove the said statutes and the rest of the premises in the Court of Admiralty before the Judge there, yet that the Judge of the said Court had altogether refused to receive the said plea and allegation. Upon the motion for a prohibition, the Ch. J. Ld. Hardwicke said, that before the making of the 2 Geo. 2, c. 36, he always understood the law to be settled, that as the Admiralty Court proceeds in suits for mariners' wages upon contracts made at land, which cannot be the proper cognisance of the maritime jurisdiction, merely by indulgence, a prohibition would always be granted where the contract differed from the common and usual contracts between masters of ships and seamen about wages, by reason of some special terms contained in it; and that in this agreement there seemed to be some special covenants, as for example one, that if the mariners should enter into any of H. M.'s ships of war, they should forfeit their wages; which was directly contrary to a clause in the late act. And, 2, 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 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 v. Addison, and as the 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. The report of

a Ante, p. 260.

b Day v. Serle, 2 Stra. 968, more fully by Barnardiston, vol. ii. p. 419; but the account in the text of the judgment pro

nounced by Ld. Hardwicke is taken
from a manuscript note.

c MS. It is signed by Draper.

Abbott on the last case on this subject, which was a suit instituted in the Court Shipping of Admiralty by seamen employed on board a ship in the service of

the E. I. 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 Ld. Mansfield took notice that the seal was not the only circumstance in which this case differed from the ordinary contract for mariners' wages.

From this view of the decisions of the Courts at Westminster Hall, it appears that a 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 to the jurisdiction of the Court of Admiralty on a deed of hypothecation of a ship by the master, which came before the Court of K. B. a few years ago, one of the learned Judges of that Court said, "If the Court of Admiralty has jurisdiction over the subject-matter, the circumstance of the instrument being under seal does not deprive them of their jurisdiction." 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 circumvention, and the Court of Admiralty declared it to have been so, and gave sentence for the plaintiff to

a 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 particular suggestion in this case

could not be found, although a very dili-
gent search was made by the officer.

b Mr. J. Buller, 3 T. R. 170.
c Menetone v. Gibbons, 3 T. R. 267.

recover his wages, the Court of K. B., upon application for a prohi- CH.XXIII. bition, 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."a

In proceeding against the ship in specie, if the value thereof Preference be insufficient to discharge all the claims upon it, the seaman's given to claim for his wages is preferred before all other charges, for the wages. same reason that the last bottomry bond is preferred to those of an earlier date: the labour of the seamen having brought the ship to the destined port, has furnished to all other persons the means of asserting their claims upon it, which otherwise they could not have had. The mariner's contract covers the whole ship, one part as well as another with his lien; a part separated by a storm, for instance, when recovered, is still a part of the primary pledge.c

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

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 the performance of his engagement. And actions in the courts of common law are also limited to the same period of six years, with the same provisoes, unless they are founded on a contract under seal; if they are founded on such a contract, the statutable limitation of twenty years applies to them. In suits in the courts of common law, the declaration may be framed in the ship's articles, or it may be in the common indebitatus form for work and labour. The general form is best. If the contract be under seal, it must, I conceive, be declared upon. The course of pleading to be adopted by the defendants will depend a good deal on the form of the declaration, of which the consideration does not properly belong to a treatise on a single branch of the law.

Besides these remedies in the superior courts, the Legislature has Summary provided in some cases a summary process. The sections of the process. 7 & 8 Vict. c. 112, relating to this, will be found in a former page.

a Buck v. Atwood, 2 Stra. 761.

b The Favourite, De Jersey, 2 Rob. A. R. 232; French Ordinance, liv. 1, tit. 14; de la Saisie des Vaisseaux, art. 16, and Valin thereon.

The Neptune, 1 Hagg. 227; the Reliance, 2 Wm. Rob. 123.

d 4 Anne, c. 16, ss. 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 Code de Commerce, art.
433, allows only one year.

e 21 Jas. 1, c. 16, ss. 3 & 7; and 4
Anne, c. 16, s. 19.