#### James B. Collins *ads.*Charles Brown.

This was an appeal to the Recorder, from the decision of the judicial magistrate whose report of the case is as follows :

This was an. action brought upon an instrument, purporting to be *254a promissory note, for $13. The note was in these words : “ On demand I promise to pay to Captain Charles Brown, of ship Albion, or to his order, the sum of thirteen dollars, provided, John Clark, who has signed articles to proceed-on the voyage on which the said vessel is now bound, does not go to sea in said vessel. (Signed,) James B. Collins. Witness, John Nabb.”

- The evidence proved, that four seamen were shipped by John Nabb, notary public, as the agent of Captain Charles Brown. The men were delivered to the captain, at his request, on a Thursday or Friday, while his ship was lying at Lucas’ mills. On Saturday, the captain called upon Collins, and demanded the clothes and bedding of the seamen. , Collins refused to deliver them up, stating that it was the only security he possessed to keep the men from running away ; and that he would deliver the articles on board, as was the custom, when the ship was ready for sea. The captain was not satisfied with this, but went to Collins’ house with a constable, and threatened to take out a warrrnt for the articles. Collins then delivered the articles to the captain. On Sunday, Collins called on the captain, and informed him, that he had learned an attempt would be made to steal those men out of his ship, at two o’clock that night. The captain placed a watch, who remained watching until half past one o’clock. At two o’cock they were stolen, or escaped from the vessel. The captain took out a warrant for them, as deserters, but not finding them shipped other men in their plaee, and went to sea. The plaintiff sued on the note, and contended that the landlord was liable, as the men had not proceeded to sea. On the other hand, it was contended, that the notes being given for Other than money, were, as such, void, and could not be recovered ¡upon as promissory notes, and that the only ground for recovery was for breach of the contract. That a contract was to be executed in good faith, by both parties. That the captain was guilty of laches, amounting to faithlessness, and that he was not entitled to recover.

I decreed for the plaintiff, the amount of the note. I considered the contract properly interpreted to mean nothing more than this, — - that if the persons shipped to go to sea, did not actually ge, then in that event, the landlord, who had received the amount of money ■usually paid in advance, would return the same.

ROBERT ELFE, Q,. U.

I sustained the decree of the magistrate, with interest, from the time of action brought.

JACOB AXSON, *Recorder.*

*Grounds of Appeal.*

1st. That the captain having made Collins deliver up the articles ■of the seamen against the custom and the understanding between the landlord and captain, committed a breach of the contract, which exonerates Collins from liability.

2d. That although Collins’ contracts unqualifiedly, to be responsible, if the seaman does not proceed to sea, yet the contract must be *255construed in reference to the doty and law between master and seaman.

3d. That the captain was guilty of laches, in the respect, that it is his duty to have watches at all times in port, when his vessel is ladening ; and more especially in this case, as he received express notice from Collins, that there would be an attempt to steal the seamen away.

4th. That the vessel did *proceed to sea,*inasmuch as she sailed from Ashley river to Cooper,river, and was only waiting for tide to go over the bar, and tp give any other construction to the term, “going to sea,” would be unreasonable.

5th. That the City Court is an appellate tribunal from the magistrate ; and his honor the Recorder, erred in exercising *original jurisdiction,*in decreeing interest on the note ; and that the note being given for other than money, is not a promissory note, and does not carry interest.

G. W. COOPER, *Appellant’s Attorney.*

Cooper, for motion.

Ye ad ON, contra.

Filed 14th Feb. 1837.

Mr. Justice O'Neall

delivered the opinion of the court.

In this case we concur in the judgment of the Recorder, in all respects, except as to the allowance of the interest complained of hi the 5th ground : the error in this respect, is, we are well aware, the consequence of the addition of interest being hastily called for, and the objection to its allowance not being presented to the intelli" gent and well balanced mind deciding the case.

The jurisdiction of the City Court, in this matter, is entirely appellate. The justices’ jurisdiction is exclusive in matters of contract, as far as twenty dollars. From his judgment, an appeal lies ; but, if on hearing the appeal, his decision is found to be correct, it is his judgment, and not that of the City Court,, which is to be enforced. If incorrect, the justice’s judgment may be reversed, and a new trial ordered.

The motion is, therefore, granted so far as to disallow the interest directed by the Recorder, to be added to the justice’s judgment, which is now entirely affirmed.

JOHN B. O’NEALL.

We concur,

RICHARD GANTT,

J. S. RICHARDSON,

JOSIAII J. EVANS,

A. P. BUTLER.