common law principle of exclusion, as mentioned by Chief Baron Gilbert, seems to disappear and be forgotten in a moment. How is all this to be accounted for? The statute in the cases abovementioned, and the adjudications dispensing with the principle of exclusion in certain cases of necessity, have only changed a pre-existing general principle of law; they have not changed the character of the witness, purified his morals, increased his integrity, or affected his credit; they have left all these subjects as worthy of the consideration of the jury, and proper for their decision.

There is another inconsistency respecting the subject under consideration, which is deserving of particular notice. If there is so much danger in permitting a person, interested in the event of a cause, to testify as a competent witness, as the existing rule of law presupposes, what shall we say of the course of proceeding in chancery, when the defendant himself is obliged to make oath to his answer? A court of equity is considered as better calculated, in numerous instances, than any other human tribunal to eviscerate a cause, unravel its intricacies, and draw forth from concealment and darkness into open day, a great variety of facts and circumstances which are of vital importance in arriving at a just decision. These advantages are often gained by means of those searching interrogatories which a defendant is bound to answer under the solemnity of an oath. Here the appeal is made directly to the conscience of the party himself; and surely no one can be more interested than he is; and yet this is considered as an important privilege, and happily adapted to advance the interests of truth and justice. Here the defendant not only testifies in his own cause, but the allegations contained in his answer the court are bound to consider as true, unless controlled by the testimony and proof on the other side, and effectually disproved. Is not this course of proceeding, and are not the principles by which it is regulated, inconsistent with the theory and the practice in the courts of common law as to the exclusion of an interested witness, on the ground that his testimony is rather a subject of distrust than belief? In one case a man is not permitted to be sworn, because confidence cannot be reposed in his integrity; in the other, the appeal is made directly to his integrity, and he is solemnly called upon to declare the truth under the sanction of an oath. In a court of equity, it is true, the plaintiff by his bill calls on the defendant to an

swer under oath, and of course he must receive the answer as true, unless he can prove it to be otherwise; but still the course of proceeding is founded on the idea that the oath of a party is of high importance, and entitled to high respect, not only from the plaintiff, but from the court.

Some distinguished names might be mentioned in support of the principles contended for in this examination, but they are purposely omitted; the object being to present the question, uninfluenced by any authority, and resting simply on its own merits. It is a question of mere expediency; if it would be an advantage to the community, and contribute to the developement of truth and the consequent advancement of justice, it would be the part of wisdom to abolish the principle of exclusion by statute, and thus render the law of evidence, on this particular subject, more uniform and liberal; and at the same time simplify the administration of justice, by permitting a jury to estimate all testimony according to its value, and, in so doing, make those distinctions as to personal character and moral worth, in a court of law and the trial of a cause, which we are all constantly making in the walks of social life, and according to which we regulate our friendships, limit our confidence, and guard our interest.

ART. III.-SHIPS AND SHIPPING. (a)

DISTRICT COURT OF THE UNITED STATES, June Term, 1828.
MAINE DISTRICT,

Joseph Drinkwater et al. v. The freight and cargo of the brig Spartan; Jacob Quincy and Chs. Fox, Joseph E. Foxcroft, Robt. H. Thayer, Claimants.

A libel on a charter party for freight due is a cause of Admiralty and Maritime jurisdiction; and a court of Admiralty has cognizance of the cause provided the penalty is not demanded.

The circumstance that the instrument is under seal does not take away the jurisdiction which the court has over it as a maritime contract.

The Admiralty has a general jurisdiction to enforce maritime loans. The ship owners have a lien on goods for the freight due for marine transportation, which may be enforced in the admiralty by a libel in rem.

(a) This case and the succeeding one were originally published in the Eastern Argus. As they involve principles of interest and importance, which are discussed with great learning and ability, we have thought that we should be rendering a service to the profession, to present them in a form more convenient for reference, and more likely to ensure their preservation than the columns of a newspaper. Ed. Am. Jur.

And it is immaterial whether the contract is by a bill of lading or a charter party.

But where by the terms of the contract the charterers have the possession and control of the ship, the charter-party is not a contract for the transportation of goods, but it is a letting of the ship, and the charterers are considered as owners for the voyage.

In this case the general owners have no lien on the cargo for the hire of the ship.

Where by the terms of the contract a ship was chartered for a voyage to be made by the charterers from Portland to the Western Islands and back to her port of discharge, they to pay the expense of victualling and manning, and all port charges, &c. and to deliver her up to the owners on the termination of the voyage, it was held that the possession was with the charterers, and they were owners for the voyage, notwithstanding one of the owners was named in the charter-party as at present master.

The master has a lien on the freight for his necessary disbursements for incidental expenses and the liabilities which he contracts for these expenses during the voyage, and also for his own wages.

Where the charterers of a vessel failed before the termination of the voyage, and transferred all their property to assignees in trust to pay their creditors, including the cargo on board the ship, and it appeared that the freight due on the merchandize taken on freight was exhausted by prior claims, it was held that the master's wages were a privileged claim against the merchandize he had brought home for the charterers, and that he was entitled to a satisfaction out of it before it went to the general creditors.

THIS was a libel on a charter-party, by the terms of which the owners let to freight the whole of the vessel with her appurtenances, for a voyage to be made by the charterers to one or more ports in the Western Canary and Madeira Islands and back to her port of discharge in the United States and to Portland. The owners covenanted that in and during the voyage she should be tight, stanch, and strong, and sufficiently tackled and apparelled for such a ship and voyage, and that it should be lawful for the charterers or their agents or factors, as well at Portland as in foreign ports, to load and put on board such loading and goods as they should think proper, contraband excepted. On the part of the charterers it was agreed that they should pay for the full freight or hire of the brig one dollar per month during the time of the service, in thirty days after the termination of the voyage, and pay the charge of victualling and manning, and all other charges, and deliver her, on her return to Portland to the owners or their order. The charter-party is dated the 12th of Sept. 1827; the brig performed the voyage and returned to Portland the 25th of April 1828, with a cargo, part of which was taken on freight and part shipped on account of the charterers. One of the owners is named in the charter-party as master, but he being unable to go in her when she was ready for sea, a new master was appointed. A question of fact about which the parties

were not agreed, was, by whom the new master was appointed; but it appeared from the evidence, though the owners were desirous that the person who finally went as master should be the man, that the right of appointing him was claimed and exercised by the charterers. Before the return of the vessel the charterers having become embarrassed in their business, made an assignment of all their property, including this cargo, to Messrs. Quincy & Fox, in trust, to pay their creditors in a certain order of preference fixed by the terms of the assignment. The property was also attached immediately on its arrival by several creditors of the charterers. This libel was filed for the purpose of recovering the amount due on the charter-party from the freight, of that part of the cargo taken on freight, and from that part of the cargo directly which was shipped for the charterers. The master also claimed a lien on them for his wages.

Claims were interposed by the assignees, by the sheriff, and by a Mr. Thayer, each setting forth their title to the property, but the merits of these conflicting claims were in a course of litigation before the State courts, and it was unnecessary to decide upon them in this case. The questions raised in this case were, first, whether under this charter the owners of the vessel had a lien on the freight and cargo for the charter, and secondly, whether the master had such a lien for his wages. They were very elaborately argued at the June term, and the case held under consideration to July 1, when the following opinion was pronounced.

Emery, and C. S. Daveis for the libellants. Longfellow for Messrs. Quincy & Fox. Fessenden & Deblois for Foxcroft.

WARE, J. This is a libel by the master and owners of the brig Spartan, founded on the charter-party, and brought for the purpose of enforcing the stipulated hire of the vessel from the freight and merchandise. The master and owners of the ship have united in the libel, and there is a distinct allegation by the master claiming a lien also on the freight and that portion of the cargo which was owned by the charterers, for his wages. Whatever objections to the union of these different causes of action in one libel may exist in point of law, they were considered as waved by the counsel, and of course the attention of the court has not been directed to this subject. The other points in the case have been argued with distinguish

ed ability, and justice requires me to acknowledge the very material aid I have received in examining the case, from the thorough and acute discussion of all the questions it involves, in the learned and copious arguments of the counsel on both sides.

A preliminary objection is urged by the respondents to the jurisdiction of the court, which must be disposed of before we can approach the case on its merits. It might be sufficient for this court, in claiming jurisdiction over the case, to refer simply to the decision of the Circuit Court in the case of De Lovio v. Boit, 2 Gall. 398, in which the whole learning on the vexed question of extent of the admiralty jurisdiction is completely exhausted. In that case the jurisdiction of the admiralty over bills of lading and charter-parties is distinctly asserted, and as that was a decision of the appellate court, which has the authority to correct the errors of this, it is beyond question binding upon me, unless it has been reversed by the Supreme Court. The case of De Lovio v. Boit, has I know in a recent case been questioned by one of the judges of that court, Mr. Justice Johnson, in 12 Wheaton R. 611, Ramsey v. Allegre, but the court left its authority untouched. That decision, therefore, I should hold still to be binding here, if I did not in my private judgment concur, as I most fully do, in the doctrines maintained in that very learned and masterly opinion. It has been now for twelve years before the public, and though several attempts have been made to answer it, I have yet seen none in which the reasoning is met or the conclusions shaken.

The question now before me was not then in judgment before the Circuit Court; and as it was not a point directly decided, the counsel for the respondent has urged the objection as one still open to argument. Without falling back on the authority of that case, I feel no objection to meet the question and give my own opinion on the point now in controversy. The argument is that this is a sealed contract, and that the admiralty cannot take cognizance of a contract under seal. The 2 Brown's Civil and Admiralty Law, 96, is referred to as confirming this doctrine. That the courts of common law in England will grant a prohibition in such a case is admitted. It has long been the established law of that country and is not now to be controverted. Howev. Nappier 4 Burr, 1944; 1 Strange 962; 1 Salk. 31. But I considered it as equally well established, that the decisions of the common law courts