
    Case No. 5,037.
    FRANCIS v. BASSETT.
    [1 Spr. 16.] 
    
    District Court, D. Massachusetts.
    Feb., 1842.
    F. W. Sawyer, for libellant.
    B. F. Hallett, for respondent.
    
      
       [Reported by F. E. Parker. Esq., assisted by Charles Francis Adams, Jr., Esq., and here reprinted by permission.]
    
   SPRAGUE. District Judge.

This is a libel in personam for wages.

The first objection by the respondent is, that the libel was filed within ten days from the discharge of the cargo. But the statute only prohibits the issuing of process against the vessel within ten days — not the filing of the libel. See The William Jarvis [Case No. 17.G97].

It is nest objected, that here was a desertion, and consequent forfeiture of wages. The vessel arrived in Boston, and was moored in safety on Friday the third day of December last; and sometime during the evening or night of the same day, the libellant left her, and-did not return. But a desertion can only be in the course of the voyage, not after its termination. Here the voyage had been ended, by the vessel’s being moored in safety in the usual place. Cloutman v. Tunison [Case No. 2,907].

It is further insisted, that If there be no forfeiture, there should be a deduction from the wages of the libellant, because he absented himself without leave. The evidence shows that he was suffering from disease, to that extent which should excuse him from the performance of a contract for personal service.

Decree for the libellant for his wages up to the time of leaving the vessel.  