If any defence can be set up against the present claim, it must arise either from some known general rule of law respecting marine service, or from the particular terms of the contract between these parties.

But there is no such rule applicable to marine service in general as will prevent the plaintiff's recovering, neither will it be found, on consideration, that there is any thing in the terms of this contract to defeat the present claim.

There is also another general rule, that if a sailor desert, he shall lose his wages: but that is founded upon public policy, and was introduced as a mean of preserving the ship.

This note cannot be construed literally, for then the intestate would not have been entitled to any thing though he had lived and continued on board during the whole voyage, if he had been disabled by sickness from performing his duty.

If the parties had entered into no agreement and the intestate had chosen to trust to the wages that he would have earned and might have recovered on a quantum meruit, he would only have been entitled to 8l.

In the common case of service, if a servant who is hired for a year die in the middle of it, his executor may recover part of his wages in proportion to the time of service:[3] but if the servant agreed to receive a larger sum than the ordinary rate of wages on the express condition of his serving the whole year, his executor would not be entitled to any part of such wages in the event of the servant dying before the expiration of the year.

But there are other cases that bear equally hard upon contracting parties; and in which an innocent person must suffer if the terms of his contract require it; e.g. the tenant of a house who covenants to pay rent and who is bound to continue paying the rent, though the house be burned down.

Whether these kind of notes are much in use among the seamen, we are not sufficiently informed; and the instances now stated to us from Liverpool are too recent to form any thing like usage.

Here the defendant expressly promised to pay the intestate thirty guineas, provided he proceeded, continued and did his duty as second mate in the ship from Jamaica to Liverpool; and the accompanying circumstances disclosed in the case are that the common rate of wages is four pounds per month, when the party is paid in proportion to the time he serves: and that this voyage is generally performed in two months.

Therefore if there had been no contract between these parties, all that the intestate could have recovered on a quantum meruit for the voyage would have been eight pounds; whereas here the defendant contracted to pay thirty guineas provided the mate continued to do his duty as mate during the whole voyage, in which case the latter would have received nearly four times as much as if he were paid for the number of months he served.

I have looked into the laws of Oleron; and I have seen a late case on this subject in the Court of Common Pleas, Chandler v Greaves.

[6] I have also inquired into the practice of the merchants in the city, and have been informed that these contracts are not considered as divisible, and that the seaman must perform the voyage, otherwise he is not entitled to his wages; though I must add that the result of my inquiries has not been perfectly satisfactory, and therefore I do not rely upon it.

However in this case the agreement is conclusive; the defendant only engaged to pay the intestate on condition of his continuing to do his duty on board during the whole voyage; and the latter was to be entitled either to thirty guineas or to nothing, for such was the contract between the parties.

And when we recollect how large a price was to be given in the event of the mate continuing on board during the whole voyage instead of the small sum which is usually given per month, it may fairly be considered that the parties themselves understood that if the whole duty were performed, the mate was to receive the whole sum, and that he was not to receive any thing unless he did continue on board during the whole voyage.

I believe however that in point of fact these notes are in common use, and perhaps it may be prudent not to determine this case until we have inquired whether or not there has been any decision upon them.Lawrence J concurred.

per annum for his service; the plaintiff shewed that the defendant's testator died three quarters of a year after, during which time he served him, and he demanded 75l.