#### Henry Martin *vs.*Fred. Schouboe.

Tried before R. Emm, Esq. Judicial Magistrate, November 24, 1830.

This suit was brought to recover the sum of fourteen dollars, upon what is called a seaman’s duo bill. The duo bill is in the following words : “ Charleston, June 27tb, 1838. On demand, I promise to pay Captain H. Martin, (of the barque Cyrus Butler,) or to his order, the sum of fourteen dollars ; provided John Brown, ■who has signed articles to proceed on the voyage on which said vessel is bound, does not proceed to sea in said vessel” — and signed by the defendant.

The defendant, to exclude the testimony of the plaintiff, denied, on oath, the “justice of the demand.” And on his cross-examination, admitted the hand writing to the due bill to be his. It was also admitted, that the sum expressed in the due bid was received by the defendant, as the advance due to John Brown, for signing articles, to proceed on the voyage.

S. N. Bishop was sworn for the plaintiff. He proved that John Brown, the seaman mentioned in the due bill, did not go to sea ; and that he was articled for the voyage, as expressed in the due bill. On his cross-examination, Mr. Bishop further stated, that he heard the seaman, Brown, refuse, positively, on board the ship, to go to sea ; this was two or three days before the vessel sailed, and whilst she was lying in the stream. lie further testified, that all *the*seamen, at this time, refused going in the said ship, to sea — the ship having the pilot on board, and the wind being fair. The ship was a fine one, and was detained several days on account of this refusal of the seamen. Does not know what cause of offence the men had.

Colonel Condy was also sworn for the plaintiff; and stated that the master of the ship, H. Martin, complained to him of the conduct of the men on board of the ship. That he took the affidavit of the master, upon which Judge Lee issued a warrant. Witness as marshal of the district, proceeded with the warrant on board of the ship, for the purpose of arresting the men. When he got on board he found the whole crew gathered at the forecastle ; and told the men if they would not go to sea, that he had authority to arrest them. The men suited to him, that the objection to their going, was, that the forecastle of the ship was in bad condition, and smelt offensively. That he took the men and lodged themia jail.

Mr. Jervey was next sworn ; and testified that the accommodations of the ship were better than any ship witness ever commanded. On his cross-examination, thinks *if the captain had used his authority in punishing the men, their disobedience would have been quelled.*Independent of this, the captain used all pursuasive means to induce the men to go to sea.

On the part of the defendant, Mr. Goldsmith testified, that he went on board with the marshal, to arrest the men under the war-*241f ant issued by Judge Lee. The crew did refuse to obey, and would not go to sea. The difficulty that the men complained of, wag,that the forecastle of the ship was filled tip,- and that the heat be-' low was too intensely great, besides that the atmosphere was very1 offensive below. Witness corroborated the complaint of the sea» men in this particular, and gave it as his opinion, from what he saw; that the forecastle was very confined, and fuller than is Usual,- and the heat of the atmosphere he says was almost Suffocating.

Mr. Bishop called in reply, said that the forecastle had nó Cotton in it, and contained nothing but the dunnage of the seamen,-

The proceedings in the admiralty were introduced, by which if appeared that the whole crew had been indicted, under the Warrant issued by Judge Lee, for disobedience and revolt. And that they all, including the defendant, had plead guilty. The testimony here' closed.

Mr. Thompson insisted for the defendant, that he was not hoünd to pay the due bill, for several reasons :

1st. Because the contract stipulated an agreement to be liable only in case the seaman did not proceed to sea ; and not, if he did not perform the voyage. That the landlord putting the seaman on board the ship, when she was ready for sea, with the pilot on board* in the stream, was such a going to sea as was contemplated by the contract, and recognized by the law. That the master of the ship at the time he received the seaman on board, and dismissed the landlord, parted with, and ceased to have, any further claim or demand upon him. The seaman was then under his authority, and bound to obey his orders ; and if the master neglected to enforce obedience from the seamen, by the authority which the law gave him, it was his own fault; and could not reasonably be visited upon the landlord. Further, that there was no stipulation in the contract for the good conduct of the seaman, after the master of the ship had received him on board.

It was also urged for the defendant, that the forecastle of the' ship was not habitable, and that this was good cause for refusing to go to sea. That the forecastle is peculiarly the department of the seamen, and if in an unwholesome state, it was good reason to justify the conduct of the seamen, particularly as they had offered to refund the advance.

I decreed for the plaintiff the sum of $14, the amount of the due bill. The terms of the contract are express, that if the seaman does not proceed to sea, the amount specified in the due bill shall be paid. And as far as 1 can understond the testimony, it was no fault of the captain, that the seaman did not proceed in the vessel. As regards the forecastle not being in such good condition as was testified to by Mr. Goldsmith, that was a matter which might very well have been urged in defence to the indictment in admiralty ; and yet the defendant pleaded guilty.

R. ELFE, Q. U.

Appeal dismissed.

JACOB AXSON, *Recordéf.*

*242
      *Grounds of Appeal.*

' 1st. Because the contract stipulated an agreement, to be _ liable only in case.lhe seaman did not proceed to sea, and the testimony proved that the defendant put the seaman on board the ship when she was drawn out from the wharf, in charge of the captain and under his legal control, and the defendant was thereby discharged from his liability by the terms of the contract.

2d. Because by the case made, it appeared that the revolt of the seaman and crew, arose from the neglect or mismanagement of the master.

3d. Because the facts proved not an escape of the seaman, but a mutiny of the crew ; and the contract guaranteed only as to one seaman, and that only he that should proceed to sea.

4th. Because the seaman, for whose proceeding to sea the defendant guaranteed, did not desert from the ship, but' was taken from her under a legal warrant, for a crime not within the contemplation of the defendant’s contract, in his behalf.

5th. Because the contract proved, was a guarantee, and should be strictly construed, and the construction of that guarantee; so as to embrace the conduct of the seaman, beyond the time when he was delivered to the master, and under his control, was arbitrary and unreasonable.

THOMPSON,- *Appellant's Attorney.*

Mr. Justice O’NeaIiI,

delivered the opinion of the court.

In the case of Collins vs. Brown, the first ground of appeal was decided against the defendant.

As to the second ground it makes no question of law, but one of fact merely : the decision of the magistrate upen it, does not seem, to be contrary to the weight of evidence.

The other three grounds present the'question, whether on the facts proved, the defendant is discharged from his liability under the contract. The due bill was given for tlie money paid by. the captain in advance to the seaman : the defendant, who was in point of fact the party benefitted by the advance, promised to refund it, “provided, John Brown, who has signed aiticles to proceed on the voyage on which said vessel is bound, does not proceed to sea.” The proof is that the se-unan refused to go to sea ; joined in a mutiny ; and was at last arrested for his conduct, under a warrant from Judge Lee, and committed to prison. It is perfectly plain, that this is no performance of the defendant’s contract. The seaman’s refusal to' sail made the very contingency, which, instead of discharging the defendant’s contract, made it absolute and unconditional. For his guaranty was for the seaman’s act of his own will, and not that he could be compelled to do it. So too the mu*243tiny of the seaman, was another fact making the defendant liable. It was his actual denial of the authority of the captain, and was the same as if he bad left the ship, for all the purposes of this case. His subsequent arrest was the consequence of his illegal act, and cannot avoid the consequences of his refusal to sail, both by word and deed.

Thompson, for motion.

Horlbeck, contra.

Filed 20th February, 1837.

The motion is dismissed.

JOHN B. O’NEALL,

We concur,

RICHARD GANTT,

J. S RICHARDSON,

JOSIAH J. EVANS,

A. P. BUTLER.