2. The clear result of the several decisions (g) upon this subject is, that if the hiring be on the usual terms, and made by word, or by writing only [461] · without seal, the seamen, or any one or more of them, and every officer except the master, may sue in the Court of Admiralty; and may by the process of that Court arrest the ship as a security for their demand, or cite the master or owners personally to answer to them. And the seamen may sue there not only for the wages earned in the course of a voyage, but for those earned in rigging and fitting out a ship for a voyage, on which they have engaged to proceed, if the owners do not afterwards think proper to send the ship on the intended voyage (h), And it seems also that they may sue there for the wages contracted to be paid to them for navigating a ship from one port of this country to another (i). (1) And if a suit be there instituted, that Court can properly decide whether a place at which a (g) As to the SEAMEN, after sentence, Winch. 8. Before sentence, Alleson v. Marsh, 2 Vent. 181 Anon. 8. Mod. 379. Bens v. Parre. 2 Ld, Raym. 1206. The BOATSWAIN, King v. Ragg. 2 Stra. 858. 1 Barnard 297. The CARPENTER, Wheeler v. Thomson, 1 Stra. 707. The SURGEON, Sayer, 136. The MATE, Bayley v. Grant, 1 Ld. Raym. 632. Salk. 33. (h) Wells v. Osman, 2 Ld. Raym. 1044. 6 Mod. 238. See also Mills & another v. Gregory, Sayer, 127. (i) Anon. 1 Vent. 343. The application for a prohibition was after sentence. See 31 Geo. 3. c. 39. s. 6. 1790. ch. 29. (1 U. S. L. 134.) sect. 6. The same right or privilege is granted to fishermen employed in the fisheries of the United States. Act, 16. February, 1792. ch. 6. (2 U. S L. 15.) (1) The same point is decided in Ireland, Parry v. Peggy, 2 Brown's Civil and Adm. Law, Appendix, p. 533, a port of delivery so as to Indeed if the master has Court of Admiralty upon ship may have arrived be entitle them to wages (k). obtained a sentence in the the usual allegation, stating that he was hired within the jurisdiction of that Court, the Courts at Westmin ster Hall will not prohibit the execution of the sen tence (4). 3. I have said that seamen may sue in the Court [462] of Admiralty, if the contract is made on the usual terms and not by deed. It was decided in two causes, before the passing of the earliest statute requir ing the contract to be in writing, that the Court of Admiralty had jurisdiction in the case of a written contract (m). And as well the statute requiring a written agreement in the case of foreign voyages (n), as that which requires such an agreement in the case of certain vessels employed in the coasting trade (o), contains a clause, enact→ ing that no seaman shall, by entering into or signing such agreement, be deprived of any means for the recovery of wages against any ship, the master, or own ers, which he might then lawfully make use of. The case of special agreements, and of contracts under seal, requires further explanation. The contract, whatever be its form or nature, always remains in the possession of the master or owners; the statutes expressly ordain that where it becomes necessary to produce the contract in Court, no obligation shall lie on the seamen to produce it, but on the master or owners of the ship, and that no seaman shall fail in any suit or process for the recovery of wages for want of the production of (k) Brown v. Benn & others, 2 Ld. Raym. 1247. (1) Barber & another v. Wharton, 2 Ld. Raym. 1452. (m) Bens v. Parre, M. T. 4. Ann. 2 Ld. Raym, 1206, and the Mar (n) 2 Geo. 2. c. 36, s. 8. it (p). In the common form of proceeding in the Court of Admiralty, the party, who sues. for wages, does not state how the contract was made; the [463] foundation of the suit in that Court is the service H and not the hiring; and therefore the objection that the hiring was upon special terms, or was made by deed, does not appear upon the face of the complainants' procéedings, but must be made by the defendants, if they wish to rely on it. And they must make their objection, and apply to one of the Courts at Westminster Hall for a prohibition, before sentence is given in the Court of Admiralty: if they suffer the cause to proceed to a judgment upon the merits in that Court, they cannot afterwards avail themselves of this objection (9). If the contract for service be made upon terms and conditions differing from the general rules of law, the service alone cannot entitle a seaman to his wages; his right to them must depend upon the performance of the stipulated terms. The construction of the instrument, in which those terms are contained, is a proper subject for the jurisdiction of the Courts of Common Law; and it is clear by the several authorities on this subject, notwithstanding a seeming dictum in one case (r) to the contrary, that upon the suggestion of such a contract made at land and under seal, supported by the proper affidavits, the Courts at Westminster Hall will [ 464] prohibit the Court of Admiralty from proceeding in a suit instituted there. 4. But it is not quite clear, whether the defendants (p) 2 Geo. 2. & 31 Geo. 3. as last referred to. (q) Buggin v. Bennett, 4 Burr. 2035. If a party, who has pleaded a modus to a suit in the Spiritual Court for tithes, suffer the mo dus to be tried in that Court, he cannot obtain a prohibition after sentence. Full v. Hutchins, Cowp. 422. (r) Bens v. Parre, 2 Ld. Raym. 1206. ought, before they apply for a prohibition, to plead the agreement in the Court of Admiralty as a bar to the jurisdiction of that Court. In one of the cases on this subject, the Court of King's Bench is reported to have said, "If there is any special contract, as is now sug"gested, the defendant may plead it in the Court of "Admiralty, and if that Court does not allow the plea, "then it may be a proper time to move the King's "Bench for a prohibition; for if it should be granted ❝ before the plea is disallowed, it is a prejudging of the "justice of that Court" (s). 5. The course of the proceedings, that had taken place in the Court of Admiralty, does not appear by the report of any of the cases, in which a prohibition has been granted. The best reporter of the first of these eases (t), says only, "A motion was made for a prohi"bition to the Court of Admiralty, in a suit there for "mariners' wages, upon a suggestion of a contract made "for them at land; and the Court held, that for [465] "the convenience of seamen the Admiralty "had been allowed to hold plea for mariners' (6 wages, but yet with this limitation, that if there be 66 any special agreement, by which the mariners are to "receive their wages in any other manner than is usual, 66 or if the agreement be under seal, so as to be more ❝than a parol agreement, in such a case a prohibition "shall be granted: and so it was granted in this case." In the second case (u), by the suggestion (x) made in (8) The Mariner's Case, 8 Mod. 379. Trin. T. 11 Geo. 1. (t) Opy v. Child & others, E. T. 5 Will. & Mary. K. B. Salk. 31. S C. by the name of Opy v. Addison & others. 12 Mod. 38. but not more circumstantial. (u) Day v. Serle, K. B. East. T. 7 Geo. 2. very shortly mentioned by Strange, vol. 2. p. 968. more fully by Barnardiston, vol. 2. p. 419: but the account in the text of the judgment pronounced by Lord Hardwicke is taken from a manuscript note. per. (x) M. S. It is signed by Dre support of the motion for a prohibition, the defendant in the Court of Admiralty, after reciting the statutes relating to the jurisdiction of the Court of Admiralty, and the libel exhibited in that Court by the seamen (by which it appeared that they had during the voyage entered on board one of his Majesty's ships) set forth the contract, which contained an express covenant, that if any or either of the seamen should depart from or leave the ship during the voyage, to go on board any of his Majesty's ship or ships of war, or upon any other pretence or account whatsoever, without leave of the master, such seamen so deserting or leaving the ship should forfeit and lose all his wages and pay then due and owing; and averred that this contract was made on land in this country, and sealed and delivered by the parties, and that although he had offered to prove the [466] said statutes and the rest of the premises in the Court of Admiralty before the Judge there, yet that the Judge of the said Court had altogether refused to receive the said plea and allegation. Upon the motion for a prohibition, the Chief Justice (Lord Hardwicke) said, that before the making of the new statute (viz. the 2d Geo. 2. c. 36.) he always understood the law to be settled, that, as the Admiralty Court proceeds in suits for mariners' wages upon contracts made at land, which cannot be the proper cognizance of the maritime jurisdiction, merely by indulgence, a prohibition would always be granted where the contract differed from the common and usual contracts between masters of ships and seamen about wages, by reason of some special terms contained in it; and that in this agreement there seemed to be some special covenants, as for example, one that if the mariners should enter into any of his Majesty's ships of ་ |