Brown, Hussey & Erith v. Howard

Thompson, Ch. J., delivered the opinion of the court. The question arising upon this return is, whether the court.below ought to have admitted, as witnesses, Hussey and Erith, two of the defendants, and who were offered by the other defendant. There can be no doubt that in actions for torts, a defendant, against whom no evidence has been produced, may be examined as a witness for his co-defendant.: But the rule laid down in the books on this question is, that if there is any, even the -slightest, evidence, against him, he cannot be discharged as a party, and received as a witness. The want of evidence against a party, in order to entitle him to be a witness, should be so glaring and obvious, as to afford strong grounds of belief that he was arbitrarily made a defendant to prevent his testimony. (Phil. Ev. 61. Buller, 285.) The evidence fully established the fact, that the persons offered as witnesses, were actually concerned in binding the plaintiff below; and how far they may be considered as implicated in the transaction, will, in a great measure, depend upon the authority of the captain to treat as he did the plaintiff below. The return states, that all the facts relative to the transaction took place in presence of the two defendants, who were offered as witnesses, and, of course, • fully known to them at the time they obeyed the order of the captain, in binding the plaintiff’s hands and feet with ropes. If this was an illegal act in the captain, the mates were not bound to obey him, and cannot excuse [123] themselves under such order. A master has no right to commaud his servant to commit a trespass, or do a wrongful or unlawful act. From the facts stated in the return, it appears harsh and rigorous, and altogether unjustifiable; and, unless we are warranted in presuming the statement to be, in some degree, coloured by the witnesses who were fellow seamen with the plaintiff below, the conduct of the captain merits severe animadversion. to me that the conduct of the captain, to say the least of it, was Although a captain may have a right to inflict corporal pun? ishment upon á seaman under his command, yet it is not an arbitrary and uncontrolled right: he is amenable .to the law for the due exercise of it. He ought to be able to show, not only that there was a sufficient cause for chastisement, but that the chastisement itself was reasonable and moderate. (2 Bos. & Pul. 224. 3 Day’s Rep. 285 ) The rule on this subject is well laid down by Abbott. (On Shipping, 125.) By the common law, says he, the master has authority over all the mariners on board the ship, and it is their duty to obey his commands in all lawful matters, relative to the navigation of the ship, and the preservation of good order; and, in case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner. His authority, in this respect, being analogous to that of a parent over a child, or a master over his apprentice, or scholar. Such an authority is absolutely necessary to the safety of the ship, and of the lives of the persons on board; but it behoves the master to be very careful in the exercise of it, and not to make his parental power a pretext for cruelty and oppression. Not being able to discover, from the'return, the least justification for the captain’s treatment of the plaintiff below, and the mates having been acquainted with the whole transaction, I can perceive no ground upon which they can be exonerated as parties, nor, of course, admissible as witnesses. The judgment below must, accordingly, be affirmed. Judgment affirmed.