the directions of the statute 37 Geo. 3. c. 73., paid to the receiver of the sixpenny duty for Greenwich Hospital the sum of 91. as the full amount of wages due to a deceased seaman. The administratrix of the deceased, contending that more than 9. was due, brought an action against the master, who insisted, that, as he had accounted upon oath according to the directions of the statute, the amount of the sum due could not be questioned in such an action, but he must be sued for the penalty given by the statute. Held, that the statute did not deprive the administratrix of her right to sue for all that was justly due beyond the sum paid to the officer. Amesbury v. Smith (1813), 1 N. R. 299. See antè, No. 263. XVI. COSTS IN CAUSES OF 318. In suits for wages, the Court on pronouncing for the claim must give costs, otherwise the judgment of the Court will have no effect. The Blake, Hadden, 1 W. Rob. 88. 319. In a suit by a mariner for wages, which were paid to his proctor the day after the discharge of the cargo was completed, an objection by the owners to payment of costs, on the ground that by the ship's articles it was stipulated that no seaman should be entitled to his wages until the discharge of the cargo (unless after a certain time not exceeded in this case), overruled, and costs pronounced for, the owners having, on paying the rest of the crew in full, offered to the mariner only a sum in full, and refused the whole amount of his wages. The Minstrel, Arkcoll, 2 Hagg. 40. 320. In a suit for wages paid after the arrest of the ship, a protest of the owners against payment of costs, on the ground that the men had quitted the ship in direct disobedience of the master's orders, and that the wages were not due at the time of the arrest, overruled, and the costs of the mariners allowed, on the ground that the payment of the wages was an admission of the justice of the demand. The Thomas Handford, Sawyer, Ibid. 41. n. 321. A suit for wages, the owners having pleaded the mariner's desertion from his former vessel, and their payment of his wages into Greenwich Hospital sec. stat. 4 Geo. 4. c. 25., decreed to be dismissed, but without costs, as not being usually given in causes of wages. The Vibilia, Corbet, Ibid. 228. 322. In a suit for wages brought by mariners, in which the owner's counsel admitted their grounds of defence to be untenable, but objected to the mariners' costs being allowed, on the ground that they should have sought their remedy by application to a magistrate, and were therefore disentitled under the 16th section of 5 & 6 W. 4. c. 19. to their costs in the Court of Admiralty, the wages being under 201., Held, that though there was no doubt or difficulty whatever in the question raised as to the construction of the articles, yet, the mariners having been previously summoned before the magistrates on the construction of them, it did not lie in the mouth of the owners, who had themselves adopted measures against the mariners, to say that there was no doubt as to the construction of articles on which they thenselves had raised a question. Wages and costs pronounced for accordingly. The King William, Smith, 8 Jur. 87., 2 W. Rob. 231., 3 Notes of Cases, 14. WAR. 1. War may exist between two states without a declaration of war on either side. A unilateral declaration of war is proof of the existence of a war between both countries. The Eliza Ann and others, 1 Dodson, 247. 2. A war between foreign countries must be proved, but the Courts of this country take judicial notice of a war in which this country is engaged. Dolder v. Huntingfield (Lord), 11 Ves. jun. 292. 3. Hostilities against the Dutch, which were declared 15th September, 1795, ap plied retrospectively to property taken during the doubtful state of things that preceded the declaration. Condemnation. The Herstelder, De Koe, 1 C. Rob. 113. 4. The intervention of hostilities puts the property of the enemy in such a situation that confiscation may ensue; but unless some step is taken for that purpose, unless there is some legal declaration of the forfeiture to the Crown, the right of the owner revives. Right of neutral claimant, under a decree of costs and damages suspended by the breaking out of hostilities, during which no proceedings for the for- The Nostra Senora De Los Dolores, Mo- 5. False colours are a usual stratagem 1. By 3 & 4 W. 4. c. 42. s. 26.† if any witness be objected to as incompetent, on the ground that the verdict or udgment in the action on which it shall be proposed to examine him would be admissible in evidence for or against him, such witness shall nevertheless be examined, but in that case a verdict or judgment in that action in favour of the party on whose behalf he shall have been examined shall not be admissible in evidence for him or any one claiming under him, nor shall a verdict or judgment against the party on whose behalf he shall have been examined be admissible in evidence against him or any one claiming under him. 2. Sect. 27. directs that the name of every witness so objected to shall at the trial be indorsed on the record or document on which the trial shall be had, together with the name of the party on whose behalf he shall be examined, by some officer of the Court, at the request of either party, and shall be afterwards entered on the record of the judgment, and such indorsement or entry shall be sufficient evidence that such witness was examined in any subsequent proceeding in which the verdict or judgment shall be offered in evidence. 3. By 3 & 4 Vict. c. 65. s. 10. the provisions of the stat. 3 & 4 W. 4. c. 42., with respect to the admissibility of evidence of interested witnesses, are extended to any suit pending in the High Court of Admiralty, and the entry by such act directed to be made on the record shall be made on the document containing the sentence of the Court of Admiralty, and shall have the like effect as such entry on the record. 4. In an action of assumpsit on a charterparty against one of two part-owners who made it, Held that the other part owner was, since the 3 & 4 W. 4. c. 42. s. 36., and semble prior thereto, a competent witness for the other part-owner, and semble was so before the statute. Atkinson v. Foster, * 1. See on this head Gresley's Law of Evidence clusively to Courts of Law. (2d edit. by Calvert), part ii. cap. 3. Phillips (C. H.), 408. 2. These sections have been held to apply ex Oliver v. Latham, 1 1 Man. Gr. & Sc. 713., 14 Law J. N. S. | becoming a claimant in the Court of Ad 237. 5. By 6 & 7 Vict. c. 85. s. 1. no person offered as a witness shall hereafter be excluded by reason of incapacity, from crime, or interest, from giving evidence, either in person or by deposition, in any suit or in any Court, notwithstanding such person may have an interest in the matter in question, or in the event of the suit in which he is offered as a witness, or may have been previously convicted of any crime or offence; but this act shall not make any party to any suit individually named in the record, or any person in whose immediate and individual behalf any action may be wholly or in part brought or defended, or the husband or wife of such person, a competent witness in any such suit.❤ 6. One of several defendants in an action on a joint-contract, who had suffered judgment to go by default, Held an admissible witness for the plaintiff since 6 & 7 Vict. c. 85. Draper v. Clarke, 1 Car. & K. (N.P.) 569. 7. A partner, against whom a judgment has been previously obtained in respect of a partnership debt, Held a competent witness to prove the debt in an action against his co-partner, there being no plea in abatement or of the former judgment. Lupper v. Newark, 2 Car. & K. 24. miralty, necessarily disabled on that account from introducing evidence before the Court, for the alien enemy is not generally disabled as a witness, and the cases of exception are few. The Falcon, Atkins, 6 C. Rob. 197. 9. The children of the parties to a suit are competent witnesses for or against either of them, and the Court cannot therefore prevent their production, which, however, ought to be avoided. Lockwood v. Lockwood, 2 Curteis, 282. 2. Necessary witnesses.† 10. Persons interested may be examined as witnesses ex necessitate rei. The Court always endeavours to exclude biassed witnesses, but it must sometimes admit them. The Pitt, 2 Hagg. 151. n.; The Celt, Tay. lor, 3 Hagg. 323. 11. In a cause of collision an objection to the competency of certain of the crew of the vessel proceeded against as witnesses, on the ground that they were sharers in the profits and losses of the vessel, and would not swear they were disinterested in the result of the suit, overruled, and such persons admitted as witnesses, but on the ground solely of necessity justifying such an exception from the general rule. The Catherine of Dover, Davison, 2 Hagg. 145. 8. A consul of a neutral state resident 12. In a cause of salvage two persons, in the enemy's country is not, because he plaintiffs under the general description of is thereby subject to all the disabilities of" crew of the ship," and who had given an enemy merchant, as to the power of in their answers, dismissed on signing 3. The cases as to the disqualification of witnesses on the ground of interest, which occurred in the Court of Admiralty prior to the above statutes, are L'Amitié, Villeneuve, and San Jose, 6 C. Rob. 269.; The Galen, Rogers, 2 Dodson, 21.; The Catherine of Dover, Davison, 2 Hagg 145.; Robinett v. The Exeter, 2 C. Rob. 261.; The Harvey, Peach, 2 Hagg. 83. n. 4. As to what criminal convictions would and would not, prior to the above statutes, have disqualified a person from being a witness, see The Ville de Varsovie, 2 Dodson, 185. 5. A conviction for perjury, prior to the above statute, disqualified a witness. Trevanion v. Trevanion, 1 Curteis, 427. 6. Prior to this statute the master was held to be a competent witness in a suit for wages brought against the ship. The Lady Ann, Wardell, Edwards, 235. 7. But it was considered doubtful whether the owner was not, in a suit for wages, an incompetent witness against the mariner, nor within the denomination of a necessary witness, not having been on board the vessel during the voyage. The Two Sisters, Davison, 2 W. Rob. 140. 8. Prior to the above statutes, a party responsible to the proctor for the costs of the party producing him was held to be an incompetent witness. Handley and Jones v. Edwards, 1 Curteis, 722. 743.; Goodrich v. Jones, 2 Curteis, 630.; but see Clark v. Carter, 4 Moore, 211.; Allen v. M'Pherson, 2 Curteis, 515. 9. In a case of damage, the evidence of the master and part-owner of the vessel damaged, having been objected to on the ground of his being a part-owner and party to the record, admitted on the ground of his being a necessary witness, other evidence of the facts deposed to by him not being procurable. Londonderry High Court of Admiralty of Ireland, 4 Notes of Cases, supplement, xxxv.; Decision affirmed on Appeal to the High Court of Delegates, Ireland, Ibid. xliii. 10. Salvors are, ex necessitate, admitted as witnesses to all facts which are deemed peculiarly or exclusively within their knowledge; to other facts they are incompetent. The Henry Ewbank and cargo, 1 Sumner's (AMERICAN) Rep. 400. releases, for the purpose of being examined as witnesses, they being necessary witnesses. The Pitt, 2 Hagg. 149. n. 13. In a cause of salvage the evidence of certain of the salvors, parties to the suit, admitted on the ground of their being the only witnesses. The Sara Barnardina, Ibid. 151. 3. When objections may be taken to 14. The objection to the competency of a witness may be taken at any period, and not merely on the voir dire. Jacobs v. Laybourne, 3 Dowl. N. S. (P. C.) 352., 11 Mees. & W. (Ex.) 685. II. OF THE CREDIBILITY OF 1. Generally. 23. Exception to the general character of a witness must be taken, if at all, before publication. Cunnington v. Coxe, Prerog. (Cons.) 98., and Bailey v. Bradburn, and 28th June, 1781; Evans v. Evans, 1 Hagg. Raybold v. Raybold, therein cited. 24. After publication an article in exception to the general character of a witness can be admitted only as introductory. and, being merely introductory, cannot be C. R. 98. 15. Witnesses to whose general cha-examined upon. Evans v. Evans, 1 Hagg. racter there is no exception are not to be rejected on conjectures or suspicions. Robins v. Sir Charles Wolseley, Bart., 2 Lee, 421. 16. The evidence of a witness, whose moral character in a particular transaction has been successfully attacked, is not to be swept out of the case, though he is not a witness omni exceptioni major, but is to a certain degree tainted. Robson v. Rocke, 2 Add. 67. 17. The tone and character of depositions are often better criteria for judging of the credit due to witnesses than minute variations between witness and witness. Constable and Bailey v. Tufnell and Mason, 4 Hagg. 507. 18. A biassed witness is to be distrusted in matters of opinion, but to be credited in matters of fact, the degree of credit being in proportion to the probability of the transaction, the absence or extent of contradiction of the witness, and the tone of his evidence. Lockwood v. Lockwood, 2 Curteis, 209. 19. The credit of witnesses is to be tested by reference to their occupations in life as well as to their statements. The Towan, 8 Jur. 221 20. Evidence of mere releasing witnesses only cannot be relied upon to prove a fundamental fact in a cause. La Belle Coquette, Andrieux, I Dodson, 19. 21. It is contrary to the usual practice of the Court in cases of collision to bind the witnesses down to precise words, more especially as regards distances at night, which it is impossible to set forth with 25. All objections to the character and credit of a witness must be taken before publication. Trevanion v. Trevanion, 1 Curteis, 489. an attesting witness may be excepted to 26. After publication the evidence of by the party who produces him. Mynn v. Robinson and others, 2 Hagg. 169. See ALLEGATIONS, cap. II. 27. By 3 & 4 Vict. c. 65. s. 9. the attendance of witnesses may be compelled by the Judge of the Court of Admiralty, or by Commissioners appointed in pursuance of that act, by process in the form as near as may be of a subpoena ad testificandum; and every person disobeying such process shall be considered in contempt of the Court, and punished accordingly. 28. A party who has once prayed publication, though stopped by an asserted allegation, is not at liberty to produce further witnesses upon his plea as a matter of course, nor without special ground laid and by leave of the Court, in the event of the asserted allegation not being actually filed. Bruce v. Burke, 2 Add. 404. 29. The Court will not depart from its regular practice by directing a list of witnesses to be delivered some time anterior to their production to the other party, residing voluntarily in France. Morse v. Morse, 2 Hagg. (Eccl.) 609. cretly by the Judge in the presence of a notary public. It is to be observed, howand Canon Laws is varied by the local reever, that the secrecy enjoined by the Civil 2. Of the allowance of time for —' 30. A cause was delayed till the return of a material witness from beyond the seas. Martin v. Robinson, 2 Lee, 397. 31. An application to postpone the hear-gulations of different countries; it is not to be interpreted exactly the same in any one ing of a cause until the return of a person to this country, there having been abun-country as in another. In this country it is dance of time for the person to have given take the examination of the witnesses; that not the practice for the Judge in person to his evidence before he left, refused. duty is confided to an examiner, who exBlendenhall, Barr, 1 Dodson, 417. 32. Time having been frequently prayed 3 Phill. 36. amines them secretly. Herbert v. Herbert, by the defendant to examine, in a cause of personal damage, a witness who had after-side to prepare a statement of what each 38. The practice for the proctors on each wards been suffered to leave the country without being examined, the Court, it being uncertain when he would return, refused The to grant any further time, and closed the The Enchantress, Killock, 1 Hagg. case. 395. witness can say, and hand it to the examiner to examine by, is very irregular and facts, those facts should be specially pleaded; dangerous. If a case depend on special the opposite party may then object to them if irrelevant, and the witnesses can be cross-examined to them. Burnell v. Jen 3. What witnesses may make affirmations in kins, 3 Phill. 394. lieu of oaths. 33. By 9 Geo. 4. c. 32. and 3 & 4 W. 4. c. 49. Quakers or Moravians may make a solemn affirmation or declaration in lieu of taking oath. 34. By 3 & 4 W. 4. c. 82. that privilege is extended to separatists. 35. And by 1 & 2 Vict. c. 77. further extended to any person who shall have been a Quaker or Moravian. IV. OF THE EXAMINATION OF 1. Generally. 36. By 3 & 4 Vict. c. 65. ss. 7. and 8. evidence may be taken in the High Court of Admiralty viva voce, and either before or after examination by deposition or before a commissioner, and the Court may issue commissions, under which evidence may also be taken vivâ voce, in manner and form and by the parties therein directed; and by the 12th section the costs of such commissions are directed to be taxed and enforced like other costs in the Court of Admiralty. 37. Witnesses are to be examined se 2. De bene esse. 39. The examination of a witness de bene esse is conditional only, and the witness must be examined afterwards, if capable. Weguelin v. Weguelin, 2 Curteis, 263. 40. The evidence of a witness examined de bene esse, before the admission of the libel, by reason of ill health, Held not admissible, if the witness at the hearing of the cause is capable of being examined, but afterwards admitted on an affidavit of his being too ill to undergo another examination without danger. Ibid. 3. On interrogatories.† 41. A witness was examined in chief under a commission, but was prevented by illness from being examined on interrogatories before the close of the commission. An application was subsequently made on behalf of the ministrant, for her reproduction to undergo cross-examination, and at the expense of the producent, but opposed by the producent, so far as regarded the expense of the reproduction being borne 11. An application of a party after the admission of, and pending the term probatory on, a responsive plea of the adverse party, to be allowed to examine a witness by requisition abroad (in India), who though vouched had not been examined in the first instance on his allegation, granted, the responsive allegation directly contradicting averments in the allegation to which the witness was vouched. Fraser v. Fraser, 4 Notes of Cases, 157. 12. Where a witness, having been examined in chief refused to be examined on interrogatories, the proper party to take out a monition against him to undergo cross-examination is the party desiring to cross-examine him, not the party producing him. Ibid. 319. |