
    Thomas Croucher vs. Samuel Oakman & another.
    Where evidence was introduced by both parties upon a material question, and the exceptions show that the jury were instructed that the question was immaterial, without stating any evidence in the case which would make it immaterial, the exceptions must be sustained.
    Contract to recover of the owners of the bark Laroy for services as first officer thereof, and certain expenses. At the trial in the superior court, before Vose, J., a verdict was returned for the plaintiff, and the defendants alleged exceptions. The facts are stated in the opinion.
    
      S. J. Thomas, for the defendants.
    
      E. Merwin, for the plaintiff.
   Hoar, J.

It is conceded that evidence of the incompetency of an officer of a vessel to do the duties for which he is em ployed may be admissible and material in the defence of a suit brought by him to recover his wages. Evidence upon this point was admitted at the trial on both sides, and argued to the jury. The judge who presided instructed the jury in his charge, that, upon the evidence in the case, the question of the plaintiff’s competency to discharge the duties of mate was quite immaterial, and constituted no defence to the action. But it is not stated that there was any evidence in the case which would affect the result of the evidence upon the question of his incompetency. It had been admitted, and prima facie appears to have been material and important to the defence. Yet it was not submitted to the jury, but they were instructed to disregard it. To this instruction, based upon no facts or reasons which the exceptions disclose, the defendants excepted. If there were any facts in evidence which would authorize such an instruction, they should have been reported by the judge. The instruction, as it stands, is apparently without justification and erroneous. Exceptions sustained.  