Mr. Justice Burton upon the trial had held that he was entitled to wages up to the end of the voyage, he being only deprived from performing his part of the contract through an act of God.  All that he was called upon to do was to work if he could.  The Assessors found for plaintiff, damages £53 8s. 10d.

Mr. Windeyer, junior, now argued in favour of upsetting the verdict and having a new trial, in doing which, he said the first point to which he would call their attention was to the form of the action.

Mr. Justice Burton said he was of opinion, that he could not object to any thing except that of misdirection.

Mr. Windeyer, junior, then continued, and contended at considerable length that plaintiff was not entitled to recover beyond the time that he quitted the ship.  His chief argument was that plaintiff was only a partner in the speculation upon certain conditions, and that the owner, commander, &c. were upon the same terms; it was a joint adventure in which all were to have a certain interest upon complying with certain conditions.  Plaintiff not having been able to comply with these conditions, had no right to claim beyond that time when his services ceased to be useful.  As for instance, the owner of the vessel bound himself for a certain portion of the proceeds to find a ship victuals and water; if then the ship had struck upon a rock, and bilged to such an extent that all the provisions were spoiled, he as the owner, under his undertaking, would have been bound to have supplied fresh provisions, and no matter what might be the profit from the trip, he could claim no more of the proceeds than his proportionate share, as agreed upon according to the original agreement.  He instanced a case of privateering, where men entered into a certain compact, and if they did not fulfil the contract, they were not entitled to their share; for this reason, that if a privateer sails out upon certain conditions, all parties were bound by them.

The Chief Justice, however, was of opinion that the verdict ought to stand, (agreeably to some authorities which he quoted).  The man was entitled to his whole wages, although he might be unable to do his work, either through accident or illness.  It had been contended, that this case was different from the ordinary cases of master and seamen; that it was a partnership, and as he was prevented from doing his duty, he was not entitled to recover.  There was no doubt, that in the articles nothing was said to prevent such a construction.  But there might perhaps in future be some clause introduced which would prevent the litigation in dispute.  As the seaman was to receive his earnings at the end of the voyage, he was entitled to his share according to the agreement.  If he had been a partner as had been contended, he, (the Chief Justice), would like to know what evidence there was of this man having released the others from his share of the profits.  After some further pertinent remarks, he observed that it was sound policy that this poor person being willing to perform his duty should not, through an unavoidable calamity, be defrauded of his wages; the wealth, the prosperity of all parties concerned required it.  He therefore would not disturb the verdict.