Page:Federal Reporter, 1st Series, Volume 4.djvu/843

 M'CABTY V. STEAM-PROPELLEE CITY Ol" NEW BEDFOBD. 829 �cases, give a remedy where a court of eommon law would not." Ware, 3., Davies, 119. �If such be the privilege of the seaman under the law, it can- not be permitted to a crediter ,.against the will of the seaman, to Bubmit his rights to be determined by a court of law in a pro- ceeding where of course the ship-owner bas the right to defend, and where he may set up, for instance, that the sailor had agreed that ail differences in regard to his wages should be referred to the chamber of commerce or the court of eommon pleas of the city and county of New York, as was done in the case of The Sarak Jane, B. & H. 402; oir that the owners, by the terms of the contract, bave a set-off for the value of medicine fumisbed the seaman, as was done in Harden v. Gordon, 2 Mason, 559; or that the seaman had agreed that the wages should not become due until three months aftor the end of the voyage, when of course the ship would bave gone to sea again, as in the case of The Express, B. & H. 608 ; or that the contract was in the form used by The George Home, 1 Hagg. 378, of which Lord Stowell said: "It would take me up a very inconvenient time to point out half the imperti- nences with which it is stuffed, and which it is high time should be corrected." A seaman would surely bave great cause to complain of the law that would permit his crediter, against bis will, to submit questions like these to a court of law, which, according to Lord Lyndhurst, can find "no princi- ple by which a contract entered into by mariners is to be construed differently from those made by other persons." Jesse V. Boy, 1 Cromp. M. & E. 316. See, also, Webb v. Duckingfield, in this state, 13 Johnson, 390, and Goodrich v. Peabody, in the state of Massachusetts, 2 Dane, Abr. 462. �Furtbermore, the contract of the mariners is a species of partnersliip, (Emerigon.) "It is not, indeed, a partnership as to ail the effects of that contract, but as to some of its con- Bequences." Ware, J., Skolfield v. Potter, 2 Davies, 401. "In the eommon sense and equity of the case, the crew and the vessel bave a joint or partnership interest in freight, and, independent of positive regulation, special contract, or a usage that has the force of law, no distinction can be made ����