1817. Beverly V. Brooke, no admittance can be had," &c.; but, "If no admittance can be had," &c. These expressions might well be understood to apply to the fact, although it should be communicated before arriving at the place, and to dispense with the necessity of a useless voyage to Tonningen. There is the more reason for coming to this conclusion from the consideration that the vessel could not arrive at a place, admittance into which was forbidden. Whether this be the true construction of the letter or not, the phraseology is deemed too ambiguous to subject the master to remote damages, not certainly produced by his omitting to proceed to Tonningen, if, in omitting so to do, he acted with good faith and a sincere desire to obey his orders. This brings us to the information under which he acted. That information was that Hamburgh was shut. That Tonningen had been occasionally shut, and occasionally opened, to American vessels. That, at the time, the cargoes of those which had been admitted, were not allowed to be sold; and that the voyage to Tonningen would be attended with very serious hazards, which were probably not contemplated by his owners when they gave their instructions. If, in such a state of things, the master should be thought to have misconstrued his instructions, and should be deemed responsible for exercising his own discretion, the action, founded on such misconstruction, would certainly be a harsh one. court will not decide this question, because its decision is rendered unnecessary by the view taken of the second point, The 2d. Admitting that the true construction of his orders required the master to proceed to Tonningen, on finding it unsafe to go to Amsterdam, is he liable in this action? The court thinks he is not. No special contract is proved, and the slaves of the plaintiffs were put on board the vessel generally as seamen. The court is not satisfied that the danger of their escaping might not be as great on the continent as in England. But, at any rate, Liverpool was one of the contingent termini of the voyage, and was consequently within the hazards to which the plaintiff knew his property might be exposed. The danger of losing them, should the Sophila proceed to Liverpool, did not deter him from placing the slaves on board the vessel, nor from directing the master to go to Liverpool, or from giving full discretion respecting his port, in an event which was far from being improbable. There is no error, and the judgment is to be affirmed, with costs. b It will be perceived that the above case was determined upon the ground that, whether the mas. ter misconstrued his orders or not, no special contract of hiring being proved, and the slaves being put on board generally as mariners, having escaped at a port which was one of the contingent termini of the voyage, and was, consequently, within the hazards Judgment affirmed.' to which the owner knew his pro- 1817. Beverly V. Brooke. 1817. Beverly V. Brooke. sible for ordinary neglect. But this must be understood, with the exception of his responsibility as a common carrier, and also that he is responsible like any other conductor operis, or even a mandatory, for a degree of skill in his profession adequate to the performance of what he undertakes: Imperitia culpæ adnumeratur. Straccha, de Nautis, Part 3, No. 32. Casaregis, Disc. 23, No. 65. Disc. 122. Nos. 1. and 12. Emerigon, tom. 1. p. 373. These principles have been recognised by the tribunals of our own country. In the case of Purviance et al. v. Angus, the high court of errors and appeals of Pennsylvania said, "It is a wrong position that a master of a ship is not answerable for an error in judgment, but only for the fault of the heart, in civil matters. Reasonable care, attention, prudence, and fidelity, are expected from the master of a ship, and if any misfortune or mischief ensues from the want of them, either in himself or his mariners, he is responsible in a civil action." Per Chief Justice M'KEAN. 1 Dall. 184. But it is difficult, if not impossible, to lay down many general rules to enforce the performance of all the duties of the master. Targa sarcastically remarks, that it is as difficult to detect the misfeasance of ship masters as that of physicians. Son questi errori, come quelli che commettono bene spesso i medici, nel curare li poveri infer mi. Ch. 70. By the French Code de Commerce, it is provided that the responsibility of the master shall not be discharged but by proof of the intervention of the vis major or irresistible force. La responsabilité du capitaine ne cesse pas que par la preuve d'obstacles de force majeure. Liv. 2. tit. 4. Du Capitaine, art. 230. This provision may, at first sight, appear to extend unduly the responsibil ity of ship masters, which (except in their capacity of common carriers) ought not to be enlarged beyond that of other persons who undertake, for a reward, to perform any work. Its insertion in the Code was objected to upon this ground by the tribunal of commerce of Paimpol, who remarked that no ship master would be found willing to incur a responsibility so tremendous as that which a rigorous application of the literal expressions of the law might incur. That many accidents happen in navigation which no human skill can avert, but which are not to be considered as the effects of the vis major, and many misfortunes which are not to be attributed to the want of knowledge, the negligence, or the fault of the master. The tribunal, therefore, proposed, as an amendment to the article, the addition of the following words: ou par l'effet des accidens qui tiennent au hasard et à l'imprévoyance inséparable de la navigation et du chômage dans les ports. But this A. L. brought an action of assumpsit in the circuit court, and after issue joined, the plaintiff died, and the suit was revived by scire facias in the name of his administratrix. While the suit was still depending, the administratrix intermarried with F. A., which marriage was pleaded puis darrein continuance. Held that the scire facias was thereupon abated, and a new scire facias might be issued to revive the original suit in the name of F. A. and wife, as the personal representative of A. L., in order to enable her to prosecute the suit until a final judgment under the judiciary act of 1789, ch. 20. sec. 31. Where a witness, a clerk to the plaintiff, swore that the several articles of merchandize contained in the account annexed to his deposition, were sold to the defendant by the plaintiff, and were charged in the plaintiff's day-book by the deponent and another person who is dead, and that the deponent delivered, and further swore, that he had referred to the original entries in the day-book; held, that this was sufficient evidence to prove the sale and delivery of the goods. ERROR to the circuit court for the district of Virginia. This cause was argued by Mr. Lee, for the Feb. 12th.~ plaintiff in error, and by Mr. Swann, for the defend ant in error. 1817. M'Coul Lekamp. Mr. Chief Justice MARSHALL delivered the opinion of the court. Albert Lekamp brought this suit in the circuit Feb. 15th, court, for the district of Virginia, for the recovery of money claimed to be due to him from Neil M Coul, the defendant below. After issue joined the plaintiff died, and the suit was revived in the name of his administratrix. While the suit was still depending, the administratrix intermarried with Frederick L. E. Amelung, which marriage was pleaded puis darrein continuance. The scire facias was thereupon abated and a new scire facias issued to revive the original action in the names of Amelung and wife, as the personal representatives of Albert Lekamp. At a subsequent term the cause was tried on the original issue, and a verdict found for the plaintiff, on which the defendant prayed that the judgment might be arrested for the following reasons: "Because he saith, that after the plea pleaded the original plaintiff, Albert Lekamp, departed this life, and Sophia Lekamp, his administratrix, sued forth a scire facias to revive the suit on the 4th of July, 1811; that while the suit stood revived in her name as administratrix, the said Sophia Lekamp intermarried with Frederick L. E. Amelung, and on the 4th of December, 1812, this defendant having pleaded the intermarriage aforesaid, it was ordered that the scire facias be abated, whereupon the said Frederick L. E. Amelung and Sophia, his wife, as administratrix aforesaid, sued out a new scire facias to revive the suit, and there being no new plea pleaded or any consent that the cause should be revived in any |