
    Cavan & Kennedy v. Martin.
    [Friday, May 14, 1802.]
    Marines — Quitting- Ship without Consent — Wages.—A mariner, -who quits the ship after the capture, without the assent of the owners, or having been forced to do so by the captors, is not entitled to wages, to the time of the capture.
    Martin brought indebitatus assumpsit against Cavan & Kennedy, in the County Court, and declared for work and labour done and performed. Plea, non assumpsit, and issue. Upon trial of the cause, the defendant filed a bill of *exceptions to the Court’s opinion, whereby it appeared, that Martin, a mariner, entered on board the ship Polly & Nancy, on a voj'age from Alexandria, in Virginia, to Rotterdam, and from Rotterdam to St. Ubes, and from St. Ubes, back again to Alexandria. That the vessel went to Rotterdam, where she discharged her cargo, took in ballast, and went to St. Ubes, where she took on board a cargo of salt, fruit and wine, for Alexandria; but, on her passage, was captured by a Prench privateer, re-captured by an English ship of war, and carried into Cape Nicholas Mole, where, after laying three months, she was cleared, on paying salvage, and afterwards arrived at Alexandria. That the plaintiff left the ship on her being captured by the Prench privateer. That the defendants prayed the opinion of the Court whether the evidence was sufficient to charge the defendants with the plaintiff’s wages from Rotterdam to the time of the capture by the Prench privateer; and, that the Court gave it as their opinion, that the evidence was sufficient to charge the defendants with the wages aforesaid. Verdict and judgment for the plaintiff, and the defendants appealed to the District Court, where the judgment was affirmed; and thereupon the defendants appealed to this Court.
    Wickham, for the appellants.
    The vessel was captured before the voyage was ended, and the plaintiffs left her without the assent of the owners, or having been forced to do so by the captors. Of course, he was not entitled to his wages; for, they are never allowed, unless the voyage is finished, or prevented by the act of the owners themselves, or the government. 4 Bac. Abr. 617, Gwil. ed. Thus, in the case of the vessel being seized for debt, or forfeited by somS violation of the law, it is the act of the owner that interrupts the voyage; and, in the case of an impressment, in T. R. [Wiggins v. Ingle-ton, 2 Ed. Raym. 1211,] it is the act of the government. But, where there is no act of the owner or interference of the ^government, the mariner must serve out the voyage, or he loses his wages. Again, the Court erred in instructing the jury, that the plaintiff could recover wages to the time of the capture; for, they could not, consistently with the decision of this. Court, instruct the jury upon the evidence; but ought to have left the cause to their determination, without any opinion from the Court. Keele, &c. v. Herbert, 1 Wash. 138.
    Cur. adv. vult.
   PER CUR.

“The Court is of opinion, that the evidence of John M’Knight, given in his deposition, being the only evidence in this cause, was not sufficient to charge the appellants with the wages of the appel-lee, from the port of Rotterdam to the time of the capture of the vessel, in the said deposition mentioned or, with any part of the said wages; and that the judgments of the District Court, and of the Court of Hustings, are erroneous. Therefore, it is considered, that they be reversed, &c. ”  