
    The State vs. Albert Cordes.
    In an indictment for harboring deserted seamen, under the Act of Assembly, 3836, it must be alleged and proved that the defendant harbored a seaman who had signed an agreement to proceed on a voyage, or that had deserted from a captain of a vessel to which he belonged, under an agreement.
    The agreement forms an essential part of the allegation, and must be proved by the highest competent evidence.
    And where the only evidence on this point was that of a consul, who stated that the instrument relied upon as an agreement was lodged with him in his official capacity as the shipping articles of the vessel, it was held insufficient; and the defendant having been convicted, a new trial was granted.
    IN CITY COURT, AT CHARLESTON, APRIL TERM, 1837
    The defendant was indicted under the Act of the Legislature, passed in 1836, for harboring two deserted seamen, E. C. Linderman and D. Stenkin, who, it was alleged, belonged to the Bremen barque Elizabeth. To prove this, the shipping articles were produced; it was in evidence that they were lodged with the consul of Bremen in his Official capacity, and were certified to have been executed in Bremen; that they came with the vessel and were deposited with him as the shipping articles of the barque Elizabeth. The names of Linderman and Stenkin were upon them, but there was no proof of their signatures.
    An objection was made by the defendant to the admissibility of the articles in evidence, on the ground that they had not been sufficiently proved.
    His Honor the Recorder overruled the objection, and permitted the articles to go to the jury, who found the defendant guilty.
    From this verdict he appealed, and moved to set aside the same — and for a. new trial, on several grounds; but it will be sufficient for a correct understanding of the case to notice the first only, viz:
    Because his Honor erred in allowing the articles of the barque Elizabeth, which were tendered as evidence of the contract under which the seamen were bound to the vessel, to be read as evidence on the trial without being proved like any other written document relied on in a court of justice.
    Thompson, for appellant.
    
      Bailey, Attorney-general, contra.
   Butler, J.,

delivered the opinion of the Court.

According to the provisions of the Act under which .the defendant was indicted, it was necessary to allege in the indictment that he had harbored a seaman who had signed an agreement to proceed on a voyage; or one that had deserted from a captain of a vessel to which he belonged under an agreement. The agreement forms an essential part of the allegation, and is not an incidental or collateral matter that may be proved by secondary testimony, but must be sustained by legal and the highest competent evidence. I can see nothing in this case to exempt such an agreement from the operation of the ordinary rules of evidence applicable to all written instruments; to wit, to swear the subscribing witnesses, when there is one, or to offer evidence of the band-writing of the party to the paper, when there is no subscribing witness. This was not done in this case; but the articles said to have been signed- by the deserted seamen, for the harboring of whom the defendant was indicted, were permitted to go to the jury on the oath of Lewis Trapman, who stated that they were the shipping articles of “Bremen barque Elizabeth, and that they were deposited as such with him in his official capacity of consul of Bremen.” This evidence was, no doubt, satisfactory to the jury for the purposes for which it was introduced ; and to require higher testimony might be attended with inconvenience. It is not the province of the Court to adopt or vary general rules from such a consideration. The abuse of a rule of law which has long existed, would lead to greater mischiefs than a remediable and temporary inconvenience. It is sufficient to say that the testimony was not competent.

This is the only ground on which I am instructed to deliver the judgment of the Court, and on this ground a new trial is ordered.  