seek the nearest port for surgical aid; there is no absolute duty to do so.1 The master must protect the crew from abuse and prevent quarreling.2 Under the provisions of the Revised Statutes of the United States, the master sailing to a foreign port is required to give bond for the safe return of the ship's company to the United States, He is also required, at the request of the consul in a foreign port. to transport destitute seamen to the United States.3 IV. RIGHTS 1. In General.-The master's rights depend largely on the terms of his contract. He cannot trade on his own account, where his interests would conflict with those of his principals.5 He has no right to carry and maintain his wife and children at the ship's expense. He may secure an allowance for extra services," but not for wages of native attendant on himself while sick in foreign port.8 He is entitled to deduct from freight money for any liability incurred.9 6 Where the master navigates the vessel for his own exclusive benefit for a definite period, he is owner for the voyage, and as such is subject to the rights and liabilities of owner.10 Baker, Blatchf. & H. (U. S.) 372. 2. Shorey v. Rennel, 1 Sprague (U. S.) 418; Anderson v. Ross, 2 Sawy. (U. S.) 91. Duty to protect crew against assault by officers. Thorne v. White, I Pet. Adm. (U.S.) 168. Where the master fails to interfere to protect seamen from an assault by the mate, he is liable as a joint trespasser. Hanson v. Fowle, I Sawy. (U. S.) 539; Jordan v. Williams, I Curt. (U. S.) 69; Thomas v. Lane, 2 Sumn. (U. S.) 1. 3. See SEAMEN, where the authorities on this subject are collected. 4. Woodbury v. Brazier, 48 Me. 302; Miller v. Livingston, 1 Caines (N. Y.) 349; Brown v. Hicks, 24 Fed. Rep. 811. 5. Thompson v. IIavilock, 1 Camp. 527; Mathewson v. Clark, 6 How. (U. S.) 122. But the right to carry goods for himself or others, for his own advantage depends largely upon usage. Vose v. Morton, 5 Gray (Mass.) 594; Rennell v. Kimball, 5 Allen (Mass.) 356; King v. Lenox, 19 Johns. (N. Y.) 235. 6. In Marshall v. Crawford, 4 Sawy. (U.S.) 37, it was held that the master without special contract had no right to carry his wife and child at the ship's expense. In Winsor v. Sampson, I Sprague (U. S.) 548, the master was allowed the use of vacant state rooms, freight for his piano which was also used by the ship's company, and for repairs for a chronometer owned by him but also used by the ship. 7. In String v. Hill, Crabbe (U. S.) 451, he was allowed for painting the ship. In Woodbury v. Brazier, 48 Me. 302, where the master was discharged in a foreign port he was held not entitled to his expense of passage home. See also McGilvery v. Stockpole, 38 Me. 283; Kohler v. Wright, 7 Bosw. (N. Y.) 318. 8. Sunday v. Gordon, Blatchf. & H. (U: S.) 569. 9. Thus he may maintain freight to pay seamen. Goodridge v. Lord, 10 Mass. 483. See also Lewis v. Hancock, 11 Mass. 72. 10. In Lincoln v. Wright, 23 Pa. St. 76, 81, BLACK, C. J., said: That the possession, control and management of a vessel, the right to direct her destination and receive her earnings, would fi、 the responsibility of a person for supplies whether he had the legal title or not. The master in such a case is liable as a carrier. Tyler v. Holmes, 38 Me. 258; Nash v. Parker, 38 Me. 489; Decker v. Furniss, 3 Duer (N. Y.) 291. He is also liable for damages sustained dur· ing the voyage. For other cases on this subject see CHARTER PARTY. 2. Wages. The master contracts with the owners on their personal credit. He has no lien on the ship for his wages,2 but has a lien on the freight in his hands for wages, payments made and liabilities incurred for the ship.3 Capture or shipwreck terminates the contract, but his wages continue until his duties end. When discharged in foreign port, he is entitled to three months' wages as a mariner, but not to home passage.6 V. LIABILITY-1. On Contracts. In contracting for the ship's benefit, the master binds himself as well as the owners, unless it affirmatively appears that credit was given to the owners alone. If the credit is given to the master alone, he alone is liable.9 2. For Misconduct.-The master is civilly liable to the owners or to third persons for any injury resulting from his unskilfulness or negligence, 10 1. Fisher v. Willing, 8 S. & R. (Pa.) IIS. 2. Willard v. Dorr, 3 Mason (U. S.) 91; Ingersol v. Van Bokkelin, 5 Wend. (N. Y.) 314; Richardson v. Whiting, 18 Pick. (Mass.) 530. The authorities on this subject are collected under MARITIME LIENS. 3. Moore 7. Jones, 15 Mass. 424: Ship Packet, 3 Mason (U. S.) 255; Fisher v. Willing, 8 S. & R. (Pa.) 118. See Rev. Stat. U. S., § 4526. See MARITIME LIENS. 4. Smith v. Gilbert. 4 Day (Conn.) 105; Durcan v. Reed, 39 Me. 415; Willard v. Dorr, 3 Mason (U. S.) 161; Hammond v. The Essex F. & M. Ins. Co., 4 Mason (U. S.) 196; Thompson v. Rowcroft, 4 East 34; Furguson v. Fitt, I Hayw. (N. C.) 239; Phillips 7 McCall, 4 W. C. C R. (U. S.) 141; Bergstrom 2. Mills, 3 Esp. 36; Hawkins v. Turzell, 5 Ellis & B. 883; McGilveny v. Stockpole, 38 Me. 283; Strong v. Hill, Crabbe (U. S.) 454; Winsor v. Sampson, I Sprague (U. S.) 548. 5. Rev. Stat. UÜ. S., § 4562, opinion Attorney General 458. . 6. Woodbury v. Brazier, 48 Me. 302. 7. Jarman v. Bennet, 2 Strange R. 816; Rich. Coe, Cowp. 636; Leonard Huntingdon, 15 Johns. (N. Y.) 298; Marguand v. Webb, 16 Johns. (N. Y.) 89; The Leonidas, Olc. (U. S.) 12; James v. Bixby, 11 Mass. 34; Stirling v. Loud, 10 Am. L. Reg., N. S. 542: 33 M. & R. 436. He is personally liable for wages of crew earned while he was master. Smith v. Oakes, 141 Mass. 451. で。 8. Snydor Hurd, 8 Tex. 98; Farmer v. Davis, 1 Tenn. 108; Farrel 7. McCleo, I Dall. (Pa.) 302. PARKER, J., said: "It is settled that, if the master procures necessary repairs to be done without any express contract, an implied obligation arises as well against the owners as against himself, to pay for such repairs. But even this admits of the exception, that, where there is a special promise by the master, the owner is not liable; and e converso, where there is a special promise by the owners, the master is discharged from obligation." In the early case of Jarman v. Bennet, 2 Strange 816, it was held that prima facie the repairer of a ship has his election to sue the master who employs him, or the owners; but if he undertakes it on a special promise from either, the other is discharged. In Hussey 7. Allen, 6 Mass. 162, PARSONS, Č. J., said: "When necessary supplies are to be furnished for a vessel on her voyage, and from home, the merchant may furnish them on the credit of the vessel, by taking a hypothecation, or on the credit of the master by his consent, or on the credit of all who are owners at the time the supplies are furnished." In Thorn v. Hicks, 7 Cow. (N. Y.) 696, it was held that where an exclusive credit is given to the master, the owners are not liable. 10. In Stone v. Ketland, I W. C. C. R. 142, it was said: "It is not sufficient that he exercise his best judgment. It must be the judgment of a skilled and careful commander. See also Purviance v. Angus, 1 Dall. (Pa.) 180. I The Gentlemen, Blatchf. (U. S.) 396. Where the captain sailed with an incompetent crew, but was heid not liable under the circumstances. Marshall v. Crawford, 9. In James v. Bixby, 11 Mass. 35, 36, 4 Sawy. (U. S.) 37. Where the pro and also as to a statutory penalty. He is liable as a trespasser for malicious and vindictive punishment,2 and for manslaughter for causing the death of any person by negligence, misconduct or inattention to duty.3 6 He is also liable to numerous statutory penalties, the most important being for maliciously, and without justifiable cause,5 forcing any mariner or officer on shore, in a foreign port, in order to leave him behind, and refusing to bring home all who are in condition and willing to return; for refusal to pay wages and charges; for failure to keep and produce list of ship's company on foreign voyage;8 for refusing to give passage to destitute seamen at consul's request, when bound home.9 The master is also liable for the unskilfulness or lineggence of his officers or crew.10 visions were insufficient and the master was compelled to return. Freeman v. Walker, 6 Me. 68; Watkinson v. Langton, 8 Johns. (N. Y.) 213. Where the Where the master was held liable for goods stolen. Nisson v. Wessels, 5 Ben. (U. S.) 483; Van Syckel v. The Thomas Ewing, Crabbe (U. S.) 405; s. c., 5 Pa. c., 5 Pa. L. J. 301, where it was held the master was justified in following a pilot boat up the bay at night, having failed himself to obtain a pilot. The Montana, 17 Fed. Rep. 377. For running ashore in a fog. The Packer, 28 Fed. Rep. 156; The Noddleburn, 28 Fed. Rep. 855; Withcofsky v. Wier, 32 Fed. Rep. 301; Knox . Nenetta, Crabbe (U. S ) 534. 1. Rev. Stat. U. S., § 4602, provides that any master who by wilful breach of duty or drunkenness does or omits any act, whereby the safety of the ship, or of any person, is endangered, is guilty of a misdemeanor. 2. Dinsman v. Wilkes 7 How. (U. S.) 89, and 12 How. (U. S.) 390; Sheridan v. Furbur, Blatchf. & H. (U. S.) 423; United States v. Taylor, 5 McLean (U. S.) 242; Sumn. (U. S.) 584. Indictment under act congress for beating, etc. Payne v. Allen, Sprague (U. S.) 304; United States v. Collins, 2 Curt. (U. S.) 194; Riley v. Allen, 23 Fed. Rep. 46. Beating a roustabout. United States v. Beyer, 31 Fed. Rep. 35: Sampson v. Smith, 15 Mass. 365. Assault for refusal to wash mate's clothes after hours, unjustified. Jarvis v. Sherwood, Bee Adm. 248; Rice v. The Polly & Kitty, 2 Pet. Adm. 240. And see Řev. Stat. U. S., § 5347. One acting as master is liable under this statute. United States v. Nice. 30 Fed. Rep. 490. But in such cases the courts will not limit the master's discretion too nicely. But lerv. McLellan, 1 Ware (U. S.) 219, *220; Elwell v. Martin, 1 Ware (U. S.) 53; United States Cutler, 1 Curt. (U. S.) 501; United States . Freeman, 4 Mason (U. S.) 505; Thorne v. White, i Pet. Adm. 168; Morris v. Corne 1, 1 Sprague (U. S.) 62; Thompson 7. Busch, 4 Wash. (U. S.) 338; United States . Taylor, 2 Sumn. (U. S ) 584. 3. Rev. Stat. U. S. § 5344; United States v. Farnham, 2 Blatchf. (U. S.) 528; United States 7. Taylor, 5 McLean (U. S.) 42; United States v. Knowles, 4 Sawy. (U. S.) 517; United States v. Holmes, 1 Wall. Jr. (U. S.) 1. 4. Rev. Stat. U. S., § 5363. I. 5. U. S. v. Ruggles, 5 Mason (U. S.) 192; United States v. Coffin, 1 Sumn. (U. S.) 394. As to justifiable cause. Speyer . The Mary Belle Roberts, 3 Sawy. (U. S.) 1; United States 7. Netcher, 1 Story (U. S.) 37 Imprisonment on shore for fault is forcing. 6. United States v. Riddle, 4 W. C. C. (U. S.) 644. Physical force not necessary. 7. Rev. Stat. U. S., § 4563. 8. Rev. Stat. U. S., 4575. See The Atlantic, Abb. Adm. 451; Lamb v. Briard, Abb. Adm. 367; Miner v. Harbeck, Abb. Adm. 546; The Schooner Eagle, Olc. Adm. 232; The Ship Moslam. Olc. Adm. 289; Jordan 7. Williams, 1 Curt. (U. S.) 69; Snow v. Wope, 1 Curt. (U. S.) 301; Campbell v. Steamer Uncle Sam, i McAll. (U. S.) 77; The Strathairly, 124 U. S. 558. 9. Rev. Stat. U. S., § 4578; Matthew v. Offley, 3 Sumn. (U. S.) 115. 10. Angus v. Parviance, 1 Dall. (Pa.) 18o. The principle of respondeat superior applies. Ile is not liable for the negligence of a pilot, the pilot is master pro hac vice. Suell v. Rich, 1 Johns. MATERIAL. (a) Any article used in building or repairing houses, ships, etc.1 (b) adj. Of the substance; essential; important.2 MATTER.--(a) Whatever is perceptible by the senses; any material. 3 (b) The subject of legal action, consideration, complaint or defence.4 (c) Some substantial or essential thing; opposed to form.5 (N. Y.) 305. Where the master was not on board. Bussey v. Donaldson, 4 Dall. (Pa.) 206; Smith v. Condry, i How. (U. S.) 28. But in Denison v. Seymour, 9 Wend. (N. Y.) 9, where the pilot was employed by the owners, and had exclusive direction of the course of the vessel though bound to stop or proceed at the captain's order, the master was yet held liable for his negligence. See also Nicholson v. Mounsey & Symes, 15 East 383, where the captain of war vessel was held not responsible as a master, he not appointing his inferior officer. Hugges v. Montgomery, 5 Bos. & Pul. 446; The E. M. Norton, 15 Fed. Rep. 686. 1. Moyer 7. Pennsylvania State Co., 71 Pa. St. 293; Hundhausen v. Bond, 36 Wis. 29. 2. Anderson's Law Dict. Material for a Building.—The earth excavated from a building lot, merely to prepare such lot for the erection of a building thereon, and placed in an adjoining street for removal elsewhere, cannot be regarded as "building material" within the meaning of a city ordinance. Hundhausen v. Bond, 39 Wis. 29. An act incorporating a slate company (act of June 25th, 1864, § 7; Pamph. L. 947, Pennsylvania) provided that the stockholders should be individually liable "for debts due mechanics, workmen and laborers employed by the company, and for materials furnished." This did not include hauling, repairing wagons, lumber for erecting machinery, provender for horses used for the company, powder for blasting, tools, etc. "Materials" refers to that only which forms part of the products of the company. Moyer v. Pennsylvania Slate Co., 71 Pa. St. 293. See MECHANICS' LIEN for a full collection of authorities as to what constitutes "material for a building." "Material Defendant."-A party is a "material defendant" whose interest is antagonistic to complainant's and against whom relief is prayed. Waddell Admr. v. Lanier, 54 Ala. 440. What Is a Material Issue. - In common law actions it is one which is decisive of the cause. In equity, it is an issue upon a fact which has some bearing upon the equity sought to be established. Wooden 7. Waffle, 6 How. Pr. (N. Y.) 145. Material Fact.-A representation of a fact not material, although untrue, will not vitiate a policy of insurance. Curry v. Commonwealth Ins. Co., 6 Wheel. Am. C. L. 204. Material Allegation.-" No allegation can be deemed material unless an issue taken upon it, whether of law or fact, will decide the cause, so far as relates to the particular cause of action to which the allegation refers. Newman v. Otto, 4 Sandf. (N. Y.) 670. A statement of claim, after alleging a promise by the defendant to marry the plaintiff, went on to allege, in paragraph 4, that, "the plaintiff relying upon the said promise permitted the defendant to debauch and carnally know her, whereby the defendant infected her with a venereal disease. It then alleged a breach of the said promise. An order having been made at chambers to strike out paragraph 4 of the claim, held, reversing the decision of the common pleas division, that the order was wrongly made, that the facts alleged in the paragraph complained of were "material facts," and as such were properly pleadable. Millington v. Loring, L. R., 6 Q. B. D. 190. 66 Material." As used in statutes against perjury construed in State v. Brown, 79 N. Č. 642. 3. Anderson's Law Dict. 4. Nelson v. Johnson, 18 Ind. 332. 5. Douglas 7. Beasley, 40 Ala. 148. "New matter constituting a defense " is not pleaded by averments which simply deny the allegations of the com plaint, but only when they constitute a statement of facts, the proof of which avoids the legal conclusion otherwise to be drawn from the statement of facts in the complaint. It is in the nature of a plea of confession and avoidance. Craig v. Cook, 28 Minn. 234. Matter of Law.-That which is to be ascertained by reasoning from the established rules of law, or from the enactments of the legislature. The court is to determine matters of law. Rap. & La. Law Dict.: Lovinier Lovinier Exr. v. Pearce, guardian, 70 N. Car. 167. 49. Matter in Pais (literally, matter in the country.)-Matter of fact, as distinguished from matter of law or matter of record. Bouv. Law Dict. Matter in Deed.-Such matter as may be proved or established by a deed or specialty; matter of fact, in contradistinction to matter of law. Co. Litt. 320; Steph. Pl. 197. Matter of Record. Some judicial judicial matter or proceeding entered upon one of the records of the court, and of which the court takes peculiar cognizance. Thus the judgments in actions in the courts of record, being matter which is entered upon the records of the court and filed with its officer, are thence termed matters of record. Rap. & La. Law Dict. Material New Matter."-In Nelson v. Johnson, 18 Ind. 332, PERKINS, J., observes: "Section 586 of the code (Ind.) authorizes a review of a judgment upon a complaint filed within three years after the rendition of the judgment. The review may be had for errors appearing on the face of the record, and formaterial new matter" discovered after its rendition. New matter is a different thing from new evidence. "Matter," as the word is used in law, means a fact or facts constituting the whole or a part of a ground of action or defence. Evidence is that which tends to prove or disprove the existence of such fact or facts. A new trial could not be granted, even at the term, for new matter discovered after the trial, because the new matter would have to go into the pleadings before proof of it would be allowed. 14 C. of L.-62 See "New Matter in Pleading. Gould's Pl. 156; Story's Eq. Pl., § 404; 3 Bla. Com. 309, 313. "Matters and Proceedings in Bankruptcy."-See Kidder v. Horrobin, 72 N. Y. 159-167. "Matter in Controversy."-Where, in an action of tort in this court, the plaintiff lays his damages at $500 or upwards and the jury find a less sum, he is entitled to costs. In cases of tort the sum demanded in the narr. is the "matter in controversy." Hancock v. Barton, 1 S. & R. (Pa.) 269. The damages allowed by law, upon affirmance of a county court judgment by a superior court of law, are not to be reckoned as part of the "matter in controversy" for the purpose of giving the court of appeals jurisdiction. If therefore the judgment be for less than $100 but would amount to more, by adding the damages, upon affirmance, an appeal does not lie to the court of appeals. Melson v. Melson's Admr., 2 Munf. (Va.) 542. Under the existing acts of assembly, in all cases where this court has jurisdiction, costs are of course. Therefore a plaintiff is entitled to costs although he recover less than fifty pounds, provided the "matter in controversy be $500 or upwards. If a declaration on policy of insurance contain a count for a total loss, and a count for money had and received, etc., for a return of premium, and the jury find a verdict for the defendant on the first count, and on the count for money had and received, etc., a verdict for the plaintiff, for a less sum than $500, the plaintiff is entitled to costs; all disputes arising out of the same policy being "the matter in controversy between the parties." Wurts v. McFaddon, 4 S. & R. (Pa.) 78. The Matter in Demand."-As used with reference to suits in equity, does not necessarily mean a money demand, but the pecuniary value of the matter in controversy. Blakeslee v. Murphy, 44 Conn. 188. 977 "Matter in Dispute."-See Mason v. Oglesby, 2 La. An. 793; Pugoe v. Corregolles, 5 Rob. (La.) 90; Frellsen v. Copley, 2 La. An. 911; Owen 7. Boyd, 7 La. An. 109; City of New Orleans v. Imley, 12 La. An. 87; Wilson v. Daniel, Dall. (U. S.) 404; Rush 7. Cobbet, 3 Yeates (Pa.) 275; Dumphy and Hildrith v. Guindon, 13 Cal. 28; Thrasher v. Haynes, 1 Wheel. Am. C. L. 427; Malcolm v. Fullarton, 2 T. R. 645; Ravee. Farmer, 4 T. R. 146; Ingram |