Erwin v. Butler

The opinion of the court was delivered by Martin, J. The defendant is appellant from a judgment, by which damages have been recovered from him, for his beating and ill treating the plaintiff at sea, on board of a vessel, of which the latter was mate, and the former master. The reversal of the judgment has been claimed on the ground, that the depositions of several witnesses were irregularly taken, as the notice of the trial and place of taking them, was left fpr the defendant on board of the vessel he commanded, although, as is alleged, he had in the plaintiff’s own knowledge, a domicil in the city. The fact is, that the defendant, who arrived in New-Orleans from Philadelphia, on board of the vessel he commands, took furnished rooms in the city, and the notice was left on board of the vessel, under the provision of the Code of Practice, 199, It does not appear to us, that the circumstance of a master of a vessel coming from abroad, taking while the vessel is in port, rooms in the city, establishes his domicil there, and that the defendant was regularly notified by the notice left on board. On the merits, the question is merely one of fact, and the plaintiff had two verdicts. In a case like this, a very strong case indeed, is to be made, before we can be induced to inter-ferfere, and we see no ground to be dissatisfied with the jury’s finding, especially as it appeared to us, that even if the depositions, to which objections have been made on the trial of an alleged irregular service of notice, were rejected, the other testimony would support the verdict. The plaintiff was discharged in a foreign country, and received from the American Consul, his proportion of a sum of money paid by the defendant in the consul’s office on his discharge, according to the act of congress. Ingersoll, 146. It has been contended, this sum ought to have been deducted from that allowed to the plaintiff for his wages. We are of opinion, that the sums paid by masters of vessels on the discharge of a sailor in a foreign port, and of which he receives his share, is, above any money due for wages, i. e. a compen [333] sation for loss of time in procuring a passage for the sailor’s return. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court he affirmed, with costs.