The opinion
CRANCH, Chief Judge.
The 1st question is, whether the slave can be considered as a mariner, within the act of congress [ 2 Stat. 426 ], or the maritime law, so as to forfeit the wages; and whether the plaintiff is bound by the shipping articles? 2. If so, then are the wages forfeited, either by the disorderly conduct at Lisbon, ot by the absenting at New York?
1. The plaintiff was competent to make what contract she pleased. By her assent to his signing the articles, and by receiving the month's wages in advance, under those articles, she bound herself that her slave should conduct himself as a seaman, agreeable to the articles, and under the penalty of the articles and the act of congress. I am of opinion, therefore, that the wages might be forfeited by the act. of the slave.
2. Has • there been any act of the slave which would have forfeited his wages if he had been a free man? The jury find that he was confined nine days in prison at Lisbon for disorderly conduct. It does not appear what was his offence; nor whether he was confined at the request of the master, or of the civil authorities of the place. It does not appear to amount to desertion, and if it did, the forfeiture is waived by receiving him again on board. The absenting himself from the vessel after the voyage was ended, and before the cargo was dis-. charged, is not a forfeiture of wages. See the case of Swift v. The Happy Return [Case No. 13,697].
I therefore think that judgment should be entered up for the plaintiff. Judgment for plaintiff.
THRUSTON, Circuit Judge, dissenting on the first point, and MORSELL, Circuit Judge, dissenting on the second point.