delivered the opinion of the Court as follows:
That the law under which this prosecution is founded, has been, prima facie, violated, is admitted; and it becomes absolutely necessary for the defendant, if he would excuse the breach, to bring ■ himself within the “exception ma/de for his benefit, not by doubtful testimony, but by such as shall leave no reasonable doubt of -the sincerity of his exertions to proceed to some port in the United States, and the danger or apparent impossibility of doing so.
.That the vessel, shortly after ..leaving New York, leaked considerably is proved;-but it is also proved that the leak was in her upper works; that she could be freed, and, by great exertions, was kept free of water.
It is clearly proved that, after a sail of six days, she fcore away for the West-Indies, and the danger of continuing on the coast is indirectly stated, though no where positively affirmed.
But it is not proved by a single witness that an exertion was made to gain a port of the United States, or that the attempt, if it had been made, would, in the opinion of one person, on board, have failed or been attended with danger. Nor are the state of the winds, or the lat*26itade and longitude of the vessel when she bore awáy, given in. evidence so as to enable the Court to judge, In short, had the original destination been to the West-Indies, and this known to the crew, it would be difficult to fix perjury upon any one of those who have given evidence in this cause.
In such a case, where no presumption can, or ought to be made in favor of the owner of the vessel, and with so strong a temptation as he had to violate the law — her condemnation is inevitable.
Sentence affirmed, with costs„