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Page:United States Reports, Volume 2.djvu/45

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z Fsnensr. Count or Arrests. agp But it is faid, on the difmillion of the libcllants, their pro- 1782. portion of the rilk and labour fell on the reliduc of the crew ,5/sq) and, therefore,_thcy ought to have an additionalcompcnfation be- yond the articlesof agreement. ` Whatever compenfation, they may, in jultice, be entitled tn, they cannot difpenfe with, nor derive it'from the articles of agree- ment. '1`he articles make no proviliou for {`ueh events, and no man, on board, can claim beyond the extent ofthe articles. .On this ground it is, that although a Mariner, who is once {hijit onboard, and is difmi{l`ed by the Captain, without fault, before -thc voyage is ended, is entitled to his {tipulated wages, for the whole vo age ; yet the relidue of the Crew can only claim to the extent ofy their contract ; although, by the difmilliou of fuch Ma- , riner, the rifk and labour becomes proportionally greater. 3 But, it is {aid, that after the difmidion of the libcliants, new articles were executed by the Captain, and relidue of the Crew; by which their {hares of prizes were augmented, in proportion to the leifening of the crew, by the libellants’ difmillion; and, that · the libellants’ claim afeéts their right, under the {`ubfequent ar- ticles. ` ` ‘ The Captain and the relidue of the Crew could not cancel the original articles of agreement. When a contract is made, it can only bc dillblved by the confent of all parties. The after articles, therefore, cannot a{l·`e£t the original articles, nor autho- rife adeparture front them. _ Thefe articles, inftead of militating againlt the libellants’ claim, tend to eltablifh it on another ground : For, they {hew that the reliduc of the Crew approved of the difmiliion, and therefore nought to·be conlidered as partirgocr criminir, and equally refpon- {ible with the Captain. _ But, it is {aid, ¢* that the libellants did not, by any perfonai {`ervice, contribute to the capture in the prefent cafe; that the prize was taken bythe {hip, the Captain and OEcers, and re- {idue of the Crew ; and, that although the libellants had a right under the commiilion to make captures, yet the right was not exercifed in the capture of the prize in quc{tion." · The {hip, Captain, Othcers and Crew, were joint-tenants of the right to capture and make prizes conceded by the commilli- on. Whatever was acquired in confequence of this joint right and interclt mult be eonlidered as common {tack, and like the cafe of ajoint partnerlhip, not fubjeét to furvivorihip. Where the right and interelt is ajoint concern, the queltion never can ematerial, which of the parties have been molt aitive and alerr: The only queltion that can arife mult be ; whether the joint poneern and interclt is fairly fubiiiling ? Upon the whole, we are of opinion, that the decree below bc atlirmcd, with colts to the libellants. Miry