MAINE, 1824.

Elwell

V.

Martin

would give too much encouragement to not the best class of mariners to enter prosecution for trivial injuries, and have a tendency to break down all authority and discipline. It was very justly urged by the libellant that the greatest discretion is not to be expected from the humble condition of a common sailor, but that the usefulness of the class to which he belongs, his hard services and small reward, and the character of frankness, and thoughtless impetuosity, which seems to be naturally created by the nature of his employment, justly require that we should look on his failings with sentiments of kindness, and not severity. To this argument it may be replied, with equal truth, that when the misbehaviour of the seamen has called into action the correctional power of the master, the like reasons claim for him a like indulgence of judgment in favour of the necessary exercise of discretionary authority.

In the present case there was misbehaviour on the part of the libellant that unquestionably justified correction, and the true question is whether, in inflicting summary justice, the officers have passed the limits beyond which the indulgence of the law cannot consistently with justice and sound policy follow them. In my opinion, they have. It has been argued for the respondents that the master under the circumstances having the right to chastise Elwell, that the mode of punishment being a legal and proper one, and the dislocation of a limb not being intended, nor likely to occur in the mode of correction adopted, the officers ought not to be holden responsible for an accidental and unexpected injury. There is certainly a great degree of plausibility in this mode of considering the case. But will the facts warrant it? When the master in this way takes his stand upon his strict legal rights,

I must be permitted to say that he showed, as is perhaps too apt to be the case, quite as much alacrity as was suitable in resorting to severe measures. From all the evidence the dislocation seems to have been effected when Elwell was thrown down to be lashed. The master and both mates had then hold of him, and assisted in laying him down, and making him fast. With such odds as the strength of three against one, it would seem that with ordinary caution in the application of their force, Elwell might have been secured without the employment of such violence as must have been exercised to pro-. duce the injury he sustained. That degree of violence was unnecessary and unwarrantable, and if an injury was done beyond what was intended, though as happening partly from misadventure, it may not call for vindictive, no reason is perceived why the authors of it should not be holden answerable for actual pecuniary damages. Under all the circumstances, to this amount, I think the damages ought to be limited.

It is contended, on the part of the respondent's counsel, that whatever may be the decision as to the master, Storer and Fales, who acted in obedience to his order, can in no event be held responsible. They would indeed be justified in confining Elwell, and this was the extent of the master's order. But in executing it, if a serious injury was inflicted from their unnecessary harshness or want of caution, they must be held to answer for it. They were jointly engaged in doing the wrong, and I do not perceive any reason why they should not be held to respond the damages. Decree, $80 damage---

MAINE, 1824.

Elwell

V.

Martin.

Oyer and Terminer.

SCHOHARIE, (N. Y.) Sept. 12th, 1817.

This day the prisoner was brought to trial on an indictment for the murder of Catharine Kesler, his wife. The indictment contained two counts: one for administering white arsenic, and the other for administering laudanum, at the town of Middleburgh, in Scoharie county, on the 10th of November, 1816, of which she died on the 15th of the same month.

Evidence for the Prosecution.

Catharine Best. Witness knows the prisoner; she thinks he came to her house, in the town of Middleburgh, on the 17th of November last; with him was a lady he called his wife; she recollects it was on a Sunday evening about 8 o'clock; they went to bed without having any thing to eat or drink, that witness knows of; it might have been 9 o'clock before they retired to bed; after witness had been in bed for some time, it might have been 1 o'clock, prisoner and deceased both came through the room to go out doors, and the witness asked what was the matter with the lady? Prisoner answered that she was taken unwell with violent puking; they returned to bed, and afterwards went out several times; prisoner told the witness that she also had a purging. After they had been out twice or three times witness got up and handed the prisoner a chamber vessel for the deceased to use. Prisoner got cold water for her several

1817.

The People

v.

Kesler.

times; witness told the prisoner she was willing to wait SCHOHARIE upon his woman, and do all she could, the same as if she was one of her own family; prisoner answered it was not worth while, he had nothing to do, and that he could as well do that as nothing. The next morning early witness went to the bed-side and asked the deceased how she was; she said she was a little easier; that she had a bad pain in the stomach and in her head. Witness 'eft the bed-room, and prepared some tea and bread and butter; offered it to her, but she had no appetite, and witness did not observe her to eat at all; prisoner was in the bed-room at the same time: the deceased was very thirsty, and he procured her water, and gave her tea also to drink. Witness says the deceased and prisoner both reckoned it was the hystericks. Witness sent for Elizabeth Spoor; but previous to sending for Mrs. Spoor, prisoner said the deceased was subject to hystericks and fits. Witness said she had no fits as she observed. Mrs. Spoor came; rubbed her stomach, and said it was not hystericks that ailed the woman; she returned home, and was sent for a second time, by the desire of the prisoner, who said it was a continuation of the hystericks; it was then near 12 o'clock. During the day she grew worse with pains in the stomach and head; she perspired very much; she complained of a burning heat in her breast and stomach: by spells she complained of cold chills; these chills were accompanied with sweats. Mrs. Spool came the second time, and again rubbed her stomach, but it appeared to produce no effect; she still continued to complain; and whilst the prisoner was in the room Mrs. Spoor said it was not hystericks-the deceased still continued thirsty, and remained in the same situation until 9 o'clock in the evening, when witness retired to

SCHOHARIE her bed. 1817.

V.

Kesler.

On

The deceased and prisoner had a candle in the room when witness retired to bed. The second The People morning she appeared to be some better, but continued to complain of the pain in her stomach and a burning heat. Witness spoke to prisoner, and wished him to send for a physician; he said he did not think it would be of any consequence. She mentioned it to him several times, and told him if it was her case she would send for a physician. He said it was of no consequence, she was subject to it; and whenever she had been in a fit it would go over. He at length went for a physician, but whether it was that day, or the day following, she cannot ascertain. In the afternoon of Tuesday she was taken with more violent pains: prisoner said she had puked, but witness said she had not observed it at intervals during her sickness she had cold chills and sweats. Tuesday prisoner said she had eat a little, he had carried it in for her. On Tuesday night witness proposed to have persons to watch with her; but prisioner said he had to be up with her himself, and it was not worth while to disturb the family of their rest; if any thing was wanting he would call on witness. The next morning the deceased was much better, and came and sat with her in her room; it was early in the morning, before breakfast. The deceased complained of a trembling in her limbs, and said she could not bear to be up long she did not complain of much pain that morning; she remained up about fifteen minutes; complained of a dizziness in her head: afterwards she again got up, said she was so tired of lying, she would try to set up a little while. During this time witness thinks prisoner had gone to the doctor's; she washed herself, complained of a dizziness in her head, and said she had to lie down again.