
    Mary Reynard versus Richard Brecknell.
    In an action against a seaman for a debt exceeding one dollar, the shipping papes is the proper evidence to show that it was contracted during the time such seaman belonged to a vessel, and so by the statute of the United States is not recoverable until the voyage for which he engaged shall be ended.
    If a party is aggrieved by a determination of the Court of Common Pleas on a matter clearly within its discretion, such as the continuance of an action, this Court can grant him a remedy only upon a petition for a review.
    Assumpsit upon a promissory note.
    At the trial in the Court of Common Pleas, before Strong J., the defendant’s counsel produced a statute of the United States, (1 Cong. 2 Sess. c. 29, § 4,) which enacts, that “ no sum exceeding one dollar shall be recoverable of any seaman or mariner by any one person, for any debt contracted during the time such seaman or mariner shall actually belong to any ship or vessel, until the voyage, for which such seaman or mariner engaged, shall be ended ; and he offered to prove by a witness, that the defendant, when he executed the note, belonged to a vessel then fitting for a whaling voyage, and which had since sailed, with the defendant on board, to the Pacific ocean ; that the voyage was not completed, and that the defendant still belonged to the vessel. The plaintiff’s counsel objected to the admission of this testimony, and insisted that the proper evidence to show that the defendant belonged to the vessel, was the shipping paper. The defendant’s coun sel then offered to prove by one of the owners of the vessel, who had engaged and shipped the defendant, that the shipping paper had gone with the ship, and that no copy of it had been retained by the owners or left with the collector of the port. The witness stating that the defendant was engaged by signing a shipping paper, the judge would not permit him to be examined, and also refused to continue the action on a motion on behalf of the defendant, until he could procure the shipping paper on the vessel’s return, it appearing that the writ was served seven days before the vessel sailed. A verdict was rendered in favor of the plaintiff for 15 dollars and 93 cents, and thereupon exceptions were filed on the part of the defendant.
    
      Aug. 1827, at Taunton.
    
    The cause was argued in writing, by Williams and C. II Warren, for the defendant, and Coffin, for the plaintiff.
    For the defendant it was said, that, as between these par ties the evidence offered was not secondary. It was attempted to prove by paroi evidence, a fact independent of the shipping paper, viz. that the defendant at a certain time belonged to a certain ship. Davenport v. Mason, 15 Mass. R. 85. The shipping paper was not within the defendant’s control, and even if it had been produced, it would have been necessary to call the witness to prove the fact and the time of the defendant’s signing it. The counsel cited Rex v. Reason, 1 Str. 499 ; Rambert v. Cohen, 4 Esp. R. 213 ; Owings v. Wyant, 3 Ear. & M‘Hen. 393 ; Beeler v. Young, 3 Bibb, 520 ; Doe v. Morris, 12 East, 237.
    The counsel for the plaintiff referred to other provisions in the statute of the United States, and also cited Commonwealth v. Kinison, 4 Mass. R. 646.
   The opinion of the Court was drawn up by

Parker C. J.

As the defence in this case was grounded on a statute of the United States, the effect of which is to avoid, or at least to suspend a contract, which but for the statute might be enforced at law, we think the defendant should be held to a strict compliance with the statute provision which creates his exemption, and should produce the evidence which by the statute seems to be required to constitute him a mariner, and as such to protect him from suits upon his contracts'. The shipping paper is for this purpose the best, if not the only evidence which can be relied on, for by that alone can it be certainly proved on what day he engaged as a seaman, and the very day is quite material, in order to know whether the contract sued is within the statute prohibition or not. This paper being not lost or destroyed, but only beyond the reach of the defendant at the time of the trial, a case for secondary evidence was not made out, and therefore the rejection of that which was offered was right. The facts and circumstances offered in evidence in lieu of the shipping paper, only showed a proper case for a continuance or postponement of the trial until the vessel should return, and to judge alone from the facts reported, we should think a continuance ought to have been granted , but as this was altogether within the discretion of the court, and as circumstances may have influenced that discretion, of which we can have no knowledge, we are bound to suppose the determination on this point was correct. But whether it was or not, we have no power to revise it. Matters within the discretion of an inferior tribunal, cannot, as matters of law, be overruled by another court. It is only of matters of law that this Court can take cognizance, in cases which come before it on exceptions under the statute.

If a party should be seriously injured by any determina tian of the Court of Common Pleas on matters clearly within its discretion, such as the postponement or continuance of an action, we know of no remedy but by petition for a review, according to the general statute giving to this Court power to sustain such petitions; on the hearing of which, "f it be made to appear that injustice has been done to the party by his being hurried to trial unprepared, a review will be granted.

In the present case, however, the defendant will do well to consider, whether, if it should appear, as has been suggested, that his debt was really contracted before he entered as seaman on board the vessel, he will be entitled to equitable relief.

Judgment of C. C. P. affirmed. 
      
       See Whitney v. Thayer, 5 Pick. 528.
     