The suit was brought by C. H. Nelson, the late master of the ship Alhambra, to recover the sum of $2,681.26, wages due. to him as commander of the said ship.
Mr. Rontxsow appeared for the plaintiffs.
Messrs. Eastes and DRvawoxp represented the defendauts—Messrs. Russell and Ca., the agents of the Alhambra.
Mr. Rovixsox said this suit was very simple in its nature, being only to recover wages; but it involved some questions which he thought were new.in this Court, and it would therefore be desirable to Lave the practice of the Court settled rogardivg them. As to the facts of the ease, as detailed in the Nelson la the cubi in-d evidence, the Petition Petition [which were given fully by Captain
not being read], he. did not know that there was any dispute, excepting as regarded the amount of salary. In point of fact the other side were not prepared with any answers and he therefore considered that the plaintiff, why had been a shipmaster for 16 latter two years being spent in the service fron which he had recently been dimi entitled {0 the belief that his was a prima facie case, and that there was this sum of money due to him. If he swore falsely, he must be perfectly aware of the penalty to which he exposed himself, and the Court had every reason to believe' his statements ax being the truth. On the other side Messrs, Russell and Ca. had not entered the appearance they ought in segordance with the practice of the Courtof Admiralty. He submitted thatthe omitted to tell in what capacity they appeared. They might be appearing for some one who had a collateral interest in the ship, but who had nothing to do with the suit; or they might possibly appear in the capacity of mortgagees. Messrs. Kussell and Ca. might be appearing at this moment for Trinity House, for aught the Court knew. No' matter' in what capacity they might be, they ought to have Fars, that it might know what' rights mat the Court in possession of such particu-
they represented. Their position might make a material difference in the case;—they might be a simple mortgagee in possession, or a registered or unregistered mortgagee. ' If they had any title at all, they certainly were not justifiable in hanging back and. concealing it from the Court. Under the circumstances, he might infer that they had no title, and were not in a position to produce any title. if they had no title Jaintiff had no action, but plaintiff had already created them ints for the ship in suing them as the defendants.
Mr. Rozrsson did not say for one moment that Messrs. Russell and Ca. had not a perfect right to appear here and say it was an excessive demand; but if such was their wish or instruction, he held it was their duty, before the suit was commenced, to lay before the Court their grounds of objection if they had any. Atthe present moment he was quite in the dark regarding them. He had merely set up a claim for wages, but if it were a fact that Messrs. Russell and Ca. intended to set up a counter claim against the Captain even exceeding what he was asking for, he should be entitled to into all the details for the Captai el exits, expensie incurred and so forth; but he could not do this now because he did not know what was up on the other side. Accordin; "eneral rules of Admiralty cases in the mode of the pleading should he petition, (2) the answer, (3) the reply, (4) the rejoinder, In this case, however, no' answer had been prepared, and the difficulty was this:—suppose his Lordship directed a reference, when they got into the Registrar's Office the defendants might claim to set up this, that, and the other, His Lorpsurr said plaintiff had applied to Messrs. Russell and Ca, for payment, thus placing himself in a dilemma and he must therefore either admit that they were the agents ofthe ship, for the purposes of the an: tion, or say "we know nothing about Russell and Ca." Then came the question, why has this action been brought into this Court Mr. Rosixson said he must accept the first position, His Lorpsmi.—There must be applica: tion in the first instance to the osvmners or their representatives, and you" have created the firm of Messrs, Russell and Ca. the representatives of the owner, by your application. But I am not clear whether the fact of the application being made to the agents of the ship, is sufficient ground for proceeding against the shi The learned Counsel then procecied to argue on technical grounds, as to the-absence of any answer in this case, citing Williams and Bruce's Knights Admiralty Practice. sidered hovas entitled to askplainGiTif he could Mr. Drvstmoxp argued in reply, that he con-
give proof that he had applied to the owners and been refused. He had put in no affidavit to that effect, and that was a prior thing to the appearance. The absent owners knew nothing about the affair, and Messrs, Russell Go. had already had to make the here alteropts they coulkl to defend the case in the owner's absence, and to prevent the ship from being tied up her sary, he held, for the refused, then only had ho a right to' apply to the Court to get the money. But in the meantime it lind been done by seizing the ship, (which had now been released), and then the plaintiff came to the Court and asked to be paid the fall amount without having once applied to the absent owner. If they had only tine to get proof, the defendants would be able to Show that plaintiff's wages were only $100, and not $175 per month. The plaintiff was entirely unable to support his case at the present time, and ho (Mr. Drummond) sumtted he ought at_ once to be non-suited, ving no proof of having ed for claim from the owner and been refused. In the absence of such an affidavit, he held to give any Nothing sibly be more detri he owner's rest than for captai ships to have the power of seizing a ship in a foreign port for their wages, without having applied for the same to the absent owner. Such a proceeding had never been contemplated by any Legislature. A seaman had to ask, for wages through his agent—the captain; and in thesame manner, the captain might obtain his wages through the agent. It would be a strong case of collusion or fraud on the part of a captain to seize the ship, and take this means of recovering his wages without giving the absent owners sufficient time to answer the suit at all.
'Mr. Rostxson admitted that, while the affidavit of the absent owner' might be
Text read from the printed page and cleaned; old type leaves the occasional error.