| D. Me. | Apr 10, 1839
This case has come on to a hearing under unusual circumstances. Though it has been standing nearly a year and a half on the docket s nee it was heard upon the exception, and the lib 1 amended, no answer has been put in by the defendant to the amended libel. According to the regular and established rules of practice in the admiralty, before the defendant can be heard in his defence, or make use of any of his proofs, he must enter his appearance and contest the suit either by fli ng exceptions or answering the libel. For until this is done no issue is formed, and the court cannot see what is in controversy between the parties. In every court exercising a conténtious jurisdiction the evidence must be confined to the issue, or the matters in dispute. Each party must lay the foundation for the admiss on of h's proofs by suitable allegations in his pleadings. The defendant having in this case neither excepted to the amended libel nor answered it, has put nothing on the record to which his proof can apply. And further, by the practice of the admiralty each party has a right to extract evidence in support of his case from the personal answers of his adversary. Besides the general answer of the defendant in which the libel is contested, the libellant has a right to require him to answer at the hearing any special interrogatories which he may put touching the matters in issue. Clerke, Praxis Adm. tit 14; 2 Brown, Civ. & Adm. Law, 416; Gammel v. Skinner [Case No. 5,210]. Several of the printed rules of this court are intended to enforce this right. By the 8th rule, if after the return of the warrant executed, the defendant does not appear, or if after appearing he absents himself, he shall be deemed to be in default and contumacy, and the court will proceed to hear the cause ex parte. By the 20th rule, if the defendant refuses to answer such interrogatories as shall be propounded to him by order of the court, the allegations in the libel to which the interrogatories relate, and which the libellant expects to support by his answers, shall be taken pro confesso, and the court will hear and adjudge the cause ex parte, unless the libellant elects to proceed by attachment to compel an answer. Clerke, Praxis Adm. art 24. This cause should, therefore, according to the ordinary and regular course of the court, be heard upon the evidence produced upon the part of the libel-lant only. The defendant has no legal standing in court. He has neither contested the libel affirmatively nor negatively; he has neither denied the allegations of the libel, nor confessed and avoided them; and has therefore laid no foundation for the admission of any evidence. But it is suggested by the counsel who appeared for the defendant and argued the exceptions to the libel, that he has since that time had no opportunity of communicating with his client, that he is most of the time absent at sea, is unacquainted with the course of proceeding in this court, and ignorant of the necessity he is under of putting in a personal answer to the libel. Now although the course of the court is the law of the court, I have no doubt of its authority to waive its own rules, which are established for promoting the cause of justice, so far that
The evidence then which is- offered to support of the defence is a receipt and release under seal. This instrument, which is signed and sealed by all the crew, is attached to the back of the shipping papers by wafers and is in the following terms: “We the undersigned late mariners on- board the schooner called the David Pratt, of North Yarmouth, on her late voyage described on the other side of this instrument, and now performed to.this place of payment, do each for ourselves with our signatures and seals acknowledge to have received of Timothy Pratt, agent or owner of said schooner David Pratt, the full sum hereunto set against our respective names, it being in full for our services as wages on board said vessel, and in consideration whereof and of one cent to each of us paid, we have released and do hereby release and discharge forever the master, officers, and owners of said vessel, and each of them of and from all suits, claims, and demands for assaults and battery, and imprisonment, and every other matter and thing of whatever name or nature against said schooner David Pratt, the master, owners, and officers, to the day of this date hereunto set against our names.” This instrument appears to have been regularly executed by the libellant, and the execution is attested by a subscribing witness. No objection was made to it, though it could not have been received, if the objection had been taken, without calling the subscribing witness. The controversy has been upon its effect and operation. It is without question prima facie proof of payment If it were a receipt in the common form without a seal, it would be nothing more. It would be no conclusive bar to a suit for the balance of wages, if it were made to appear that they were not paid or otherwise satisfied. Harden v. Gordon [Case No. 6,047]; Thomas v. Lane [Id. 13,902]. A receipt in full is not conclusive at common law. but is always open to explanation by every kind of legal evidence.
Ought this receipt between the present parties to have any greater effect, or be any further conclusive on the rights of the libel-lant in consequence of having a seal annexed to it? The common law does, it is true, attribute to an acquittance under seal a greater degree of sanctity, and holds it to be a higher kind of evidence than a mere naked acknowledgment of satisfaction in writing, such as is ordinarily given to the common transaction of business upon the payment of a debt. Co. Litt. 352, and Steele v. Adams, 1 Greenl. 1. Usually a party will be estopped from contradicting by parol evidence the terms of his own deed. But whatever effect a court of common law might feel itself compelled to give to an instrument of this kind, it will not follow that a court of admiralty will be precluded from looking into the consideration for which it was given, merely because it is sealed. A court of admiralty is, as to all matters falling within its jurisdiction, a court of equity. Its hands are not tied up by the rigid and 'technical rules of the common law, but it administers justice upon the large and liberal principles of courts which exercise a general equity jurisdiction. Brown v. Lull [Case No. 2,018]; The Fortitudo, 2 Dod. 58; The Cognac, 2 Hagg. Adm. 377. It is particularly fit that It should be free from the artificial and technical rules of the common law in dealing with contracts between seamen and shipowners. They are parties who do not stand, in making their contracts, on even ground. Merchants are shrewd, careful, familiar with the forms of business, watchful and far-sighted in providing for their own interests; while seamen are ignorant, improvident, and necessitous, a most useful and necessary class of persons to a maritime and commercial people both in peace and war, gallant and fearless of personal danger, but wholly unable to defend their rights against the superior knowledge, sagacity, and wealth of their em ployers. They are therefore wisely, upon principles of public policy, as well as private •justice, placed under the protection of the law. They are permitted to sue in forma pauperis because if they were not allowed to come into court in this way, but were required to find security for costs, like other parties, it would amount to a practical denial of justice. Their contracts with shipowners are narrowly watched, and if any unusual stipulations are introduced, departing from the usual terms of the contract and renouncing any advantages which are secured to them by the general principles of the maritime law, they will be set aside unless they are reasonable in themselves and founded on an adequate consideration. The Juliana, 2 Dod. 504; Harden v. Gordon [supra]; The Minerva, 1 Hagg. Adm. 347. If the shield of the law were not thus interposed to protect them from the consequences of their own improvidence, they would be liable from their carelessness, ignorance, and destitution to constant imposition. In the present case the owners who provided this form of a receipt, did it, as may fairly be presumed, with a full understanding of the difference in the legal effect of an acquittance and release under seal, from that of a simple discharge by pa-rol, or to writing not under seal. They have
If the libellant is not precluded from proving the truth of the case, let us see what evidence is produced to overcome the receipt, as this is beyond doubt proof of payment, until it is falsified either by positive proof or strong and reasonable presumptions. The libel alleges that at the time of the discharge but five dollars were paid for the whole balance of wages due; that deductions were made from the wages, which are not authorized by law; and that a balance of twenty-seven dollars now remains due and unpaid. Two witnesses have been examined in support of this allegation in the libel. The deposition of the first, Orcutt, was taken to sup- ' port the libel in its original form, and relates principally to that part which has been stricken out He merely says, at the close of his deposition, that only five dollars was paid Thomas at the time of his dischaige, without mentioning any circumstances relating to the payment. The other witness, Adams, whose deposition was taken after the libel was amended, states the same fact and adds, that he was not in the cabin when Thomas was paid, but was within hearing where he could see the master and.Thomas through the skylight; that he saw the master give Thomas a five dollar bill, that he heard him say that nothing was due to him after deducting prison expenses and other charges, but that he would make him a present of five dollars. Thomas complained and was dissatisfied; but the master told him, in language not fit to be here repeated, that this was all he would give him, and he might sue if he pleased. The witness saw the bill when Thomas came oqt of the cabin.
It is said that this is loose and uncertain testimony to control a written and' formal receipt. It undoubtedly is so. It is, however, precise and distinct as to the amount paid at that time. It is also distinct to the fact that the master insisted on deducting certain charges for prison expenses, board, and lost time, though the amount is not stated. And in confirmation of the fact that deductions were made for prison expenses, it is to be observed that the libel in its original form particularly set forth an imprisonment at St Thomas, by order of the master, and claimed damages for the wrong, and the imprisonment is fully proved by the witnesses. Expenses must have been incurred, and it is a fact which has so often been brought tp the knowledge of this court, that masters are in the habit of deducting these expenses from wages, that it is not easy to forget it And 1 think it can hardly be the duty of the court to be judicially blind to a practice, which is familiarly known to all persons conversant with the usages of owners and masters in their settlements with seamen, and to none better known than to the court itself. This practice cannot indeed be referred to as proof that the deductions were made in this particular case, but it at least adds something, if any thing were wanted, to the credibility of the testimony. If a master imprisons his seamen in a foreign gaol, he always does it at the risk of being called upon to answer for it on his return home. His right to punish his men in that way, except in cases of aggravated misconduct and insubordination, is, to Say the least, questionable; and if he does resort to it he is never permitted to charge the expenses upon the men, nor deduct their wages during the time of the imprisonment. Brown v. The Nimrod [Case No. 17,959]; Magee v. The Moss [Id. 8,941]. So is the law.