Nixon v. McCrory

Mr. Justice Paxson delivered the opinion of the court, November 20th 1882. For the purposes of this case we must assume the facts to be as stated in the affidavit of defence. If, as defendant swears, he hired the plaintiff as engineer on hoard the steamer Joseph, Nixon for the term of one month, and that during said term the plaintiff not only left the steamer and his service while in a foreign port, but in addition conspired with and induced the crew of said boat to desert it, he was clearly guilty of a breach of his contract with the defendant. The defendant also swears that when the plaintiff deserted the steamer lie left it with a high pressure of steam in its boilers, with a large fire under its boilers and and the fire doors closed; that the said plaintiff was the officer in charge of said boilers and the machinery of said boat; that it was his duty to regulate its pressure of steam, control the fires, and see that the fire doors were ojaened at tlie proper time; and that by reason of this neglect the boilers were injured. While the affidavit is not as full and precise as it might have been, we cannot say it is evasive. It set forth substantially a breach of contract and of duty on the part of plaintiff, by means whereof the defendant was injured. Can such injury be set off under our defalcation act against the note in suit? Of this we are in no doubt. The precise question was ruled in Halfpenny v. Bell, 1 Norris 128, which is one .of the more recent of a long line of cases asserting the same principle. The rules of the court below provide that where a defendant admits a part of plaintiff’s claim to be due, the plaintiff may accept the tender, take judgment, issue execution and go to trial for the balance. Here the defendant admitted nothing, but denied the right of the plaintiff to recover anything. Tot the learned court court gave judgment against the defendant for a part off plaintiff’s claim and permitted the plaintiff to go to tria [293] for the residue. This was eertainly a liberal construction of the rule of court and leaves us in some doubt whether there is a final judgment below to which a writ of error would lie. As the case must go back we have concluded to decide the main question. The judgment is reversed and a procedendo awarded.