
    Neil Lemon versus Daniel Walker and Others.
    In case of the capture and condemnation of a ship of the United States in a foreign country, the seamen cannot recover their wages from the owners of the ship, arising after the capture and before the condemnation, although forbiuden by the master to leave the ship.
    Assumpsit for services rendered. 1st count, Indebitatus according to the account annexed to the writ. 2d count, Quantum meruit.
    
    At the trial of the action, which was had upon the general issue, before Sewall, J., at the sittings here after the last November term; the plaintiff relied on the deposition of John Proctor; an objection to his competency as a witness in this cause having been overruled. If competent evidence, this deposition proved that, the defendants being owners of the ship America, the said Proctor was the master, and the plaintiff the first officer or mate of the said ship, for a voyage from Philadelphia to Rotterdam-, and back to some port of discharge in the United States, and that the latter shipped for the voyage in September, 1807, at Philadelphia, at the rate of thirty dollars per month ; that the vessel was taken as a prize by a French privateer, on the outward passage, at the mouth of the harbor, while going into Rotterdam; that, after the capture, the said * master and the crew of the ship, including the plaintiff, were allowed to remain on board until the ship and cargo were sold at Rotterdam, on the 7 th of September, 1809, pursuant to a decree of condemnation by the imperial council of prizes at Paris. •
    
    It appears from the said deposition, that the' plaintiff had several opportunities of returning to the United States which he was desirous to embrace, but was forbidden by the master, who acted therein pursuant to the directions of the consignees of the ship and cargo, and of the American consul at Rotterdam.
    
    The defendants produced in evidence the shipping paper for said voyage, with a receipt for one month’s wages paid in advance ; and in the shipping paper it was expressed, that it was agreed that no seaman should be entitled to receive more wages than were then advanced on account of the voyage, until the arrival of the ship at the said port of discharge in the United States; also the orders to the said Proctor, directing him to call on Messrs. Collins <Sf Co., merchants at Rotterdam, to assist him there, and, in case they could get a full freight for him to the United States, to return, <fcc.; also a notarial copy of a protest by the plaintiff and others of the crew of said ship, made at Rotterdam, 15th February, 1808, ascertaining the fact and the circumstances of the said capture; also a decree of the 8th of June, 1808, by the imperial council of prizes at Paris, condemning the said ship and cargo.
    The jury were directed, upon this evidence, to consider the contract for wages expressed in the shipping paper as dissolved by the capture. But for the purpose of reserving the question between the parties upon the stay and supposed retainer of the plaintiff after the capture, the jury were further directed to find for the plaintiff, if his remaining on board the ship had been at the request of the master, and not merely for want of other employment, and to be maintained at the expense of the ship; and that, in a case of this kind, the master of a ship might be considered * as an agent by necessity, for the owners and others concerned ; and as having, in that capacity, an authority to bind them by contracts reasonably made, and with a view to their benefit, (particularly, as in this case, with a view to the preservation of the ship,) while a hope of restoration remained, and a readiness to proceed in the voyage, in the event of a restoration.
    And the jury were further directed to consider, in estimating the damages, if the plaintiff was entitled to recover the reasonable value of his services and loss of time; which, in the want of other evidence, might be taken according to his wages by the shipping paper, especially if his remaining with the ship, at the request of the master, after the capture, had been upon a reasonable expecta tian of having the same wages continued.
    The defendants submitting to a verdict against them under these directions, it was taken subject to the opinion of the Court, upon the questions arising at the trial, viz., whether the said Proctor was a competent witness in the cause, and whether he had any authority or agency for the owners to contract in their behalf, or to render them liable for the wages of seamen remaining with the ship after the capture. And the verdict was to be amended, or to be set aside, and a nonsuit entered, or a new trial granted, according to the opinion of the Court.
    
      Pane for the defendants.
    The master of the ship was an in competent witness. If the plaintiff has a right to recover for these services, his right is equal against the master and the owners; and if he fails in this action, he may resort to the master.  If the defendants are charged in this action, the judgment and satisfaction will be a good bar to an action against the master.
    But the defendants are not liable upon this evidence. By the capture, the original contract was at an end. Allowing the master to have had an authority from necessity to retain the crew, yet here he acted, not according to his own opinion or discreti.on, but under the directions of the * consignees and the consul, who had no right to interfere on this subject. The master acted unreasonably in retaining the crew. It could be of no benefit to the owners, since condemnation was the certain consequence of capture, and there existed no ground of hope of a restoration. Wages are not due but where freight is earned, or there is a special contract to take the case out of the general law. Here was neither the one nor the other. Here was. on the contrary, an express stipulation, that no more wages were to be paid, after those advanced at the commencement of the voyage, until the arrival of the ship at her port of discharge in the United States, which never having occurred, the plaintiff can have no claim. 
    
    
      Story for the plaintiff.
    The master was the authorized agent of the owners; he had the power, and it was his duty, to retain the ship’s crew, while there remained any hope of a recovery, which must be presumed until actual condemnation. A master in a foreign port has authority, in certain cases, to sell the ship. There is no case in the books where the master of a ship has, for that cause only, been rejected as a witness for the seamen in an action for their wages against the owners. Nor is there any reason that he should, since, although he may be answerable to them primarily, yet he has his remedy over against the owners, and may recover the moneys he shall be held to pay. But the objection to the competency of the master, in this case, can have little weight, since, if the cause should be sent to a new trial on this ground, he will be released by the plaintiff, which will remove the objection.
    
      
      
        Emerton vs. Andrews, 4 Mass. Rep. 653.
    
    
      
      
        Appleby vs. Dodds, 8 East, 300. —Doug. 539, Abernethit vs. Landale
      
    
   By the Court.

Two questions have been made in this case. If the question relative to the plaintiff’s right of action, as he has made out his case, is determined against him, the question relative to the competency of the witness will need no decision. And we all think that the plaintiff cannot recover upon the facts reported. Upon the capture of a ship, the relation between the owners and the master and crew ceases The master, in such case, is bound to * stay by the ship, to see to her preservatian, and to endeavor to obtain her discharge. If the ship is left in his keeping, as seems to have been the case here, he has power to engage necessary aid in the care of the ship. But it cannot be reasonable to retain the whole ship’s company for that object. The verdict must be set aside, and the plaintiff be called,

Plaintiff nonsuit. 
      
      
         [Oxnard vs. Dean & Al., 10 Mass. Rep. 143. Afridson vs. Ladd, 12 Mass. Rep 173 -Ed]
      
     