By the court:
Rosr, .1.I am of opinion, that there is no error in the amount allowed to the plaintiff in the judgment. The fact that the slave, carried away by the defendant, had taken his passage as a white man, and was suffered, without remark or objection from the passengers, to sit at the first table, and near the lady passengers, satisfied me, that the defendant might well have been deceived as to his color. The promptness with which he arrested him, and caused him to be confined in jail, at Memphis, on the mere suspicion that he was a slave, fully exonerates him from the intention of violating the act of 1840. I think, with our predecessors, that the presumption created by the act of 1840, only exists when the master himself finds his slave on board of the vessel; and is not applicable to cases in which the captain finds the slave, and takes the steps pointed out by that act to secure him. See Winston v. Footer et al., 5 R. R. 114. In the case of Buddy v. The Steamer Vanlear, we intimated, that the fine, imposed by the act of 1840, should be inflicted after conviction in a criminal prosecution. See 6 Ann. 34.
While I acquit the defendant from all criminal intent, it cannot be denied that, in consequence of carrying away the plaintiff’s slave, the latter suffered the damages allowed by the district court; and I am of opinion, that the allowance was properly made, under the prayer for general relief and the provisions of articles 2294 and 2295 of the code. But, for these damages, the privilege, allowed by the act of 1840, did not exist; and the sequestration should have been set aside, at the costs of the plaintiff. In this respect, the judgment must be amended. And, on the remainder of the case, the court being equally divided, the judgment of the district court must be affirmed.
It is therefore ordered and decreed, that the judgment of the court below be amended, and the sequestration sued out by the plaintiff set aside. It is *394further ordered, that, with this amendment, the judgment be affirmed, the costs of the district court to be paid by the defendants, and those of this appeal and the sequestration, by the plaintiff.
Existís, C. J., concurred.