1787.
fcriminately inflicting upon the unoffending merchant, the penalties refulting from the illicit practices of his captain, will fo multiply the rifques of commerce, that the hope of gain, and the ardor of enterprife muft ceafe to operate, and in the eventual lofs of trade, will be involved the total diffolution of the impoft fyftem. We fhould, therefore, be particularly cautious what principles we eftablifh at this crifis of our commerce, and, in imitation of the wife precedents tranfmitted to us by our anceftors ; we fhould fo interpret the letter of the law, as to render its operation reafonable and juft, the fource of punifhment to the guilty, but of certain acquital to the innoncent. In the prefent cafe it has been fully demonftrated that the claimants were not interefted in the commodity which has been furreptitioufly introduced into this city, and that fo far from knowing and confenting to the fraud, the utmoft vigilance and cirumfpection were exercifed on their behalf to prevent it. The queftion then, to be now confidered, may be fairly comprehended in an enquiry– How far the property of the owners is liable to confifcation for the mifconduct of their officers and crew ; and whether, by a liberal conftruction of the acts of affembly, the fhip itfelf, under all the circumftances appearing in evidence is a fubject of forfeiture?
1st. It must be admitted as a general rule that the master is responfible for the agency of his servant, while acting in that capacity; but, on the other hand, the moment he steps aside from the line of his duty, this relative responsibility is at an end. Thus, if a draymen in drawing a pipe of wine, staves it, his master must certainly indemnify the owner to the value of the wine that is lost; but if he leave his dray, engages in a quarrel, and does an injury to his antagonist, neither law nor justice will transfer the damages to his master. So, likewise, if a farrier's journeyman lames a horse in shoeing it, an action lies against the master, not against the servant; but still in this, and in every fimilar instance, the damage must be done while he is actually employed in the master's service, otherwise the servant answers for his own misbehaviour. It is, therefore, readily agreed by analogy to the principles thus eftablifhed, that the claimants are refponfible for the conduct of their officers, as far as it refpects the bufinefs of navigation, and the cargo of the fhip ; but in no other view can the captain be confidered as their agent, and confequently on no other account can they be affected by his tranfactions. What then is underftood by the term cargo? The privileges allowed to the marners are not furely to be comprehended in the defcription ; and if a captain or a mate clandeftinely exceeds his privilege, this ought not in juftice to be a ground for altering the cafe. The meaning of the word cargo muft therefore be reftricted to fuch goods, wares, and merchandize, as belong immediately to the owners of the fhip, or fuch as yield them a profit upon freight. Now, it is in evidence, that the porter, landed form the Anna, did not belong to the owners, and that they were not to receive any profit upon the freight of that article ; it was confequently no part
of
