ON A EE-HEARING.
Spoffohd, J.A re-hearing has been granted as to one point in this case, namely, the liability of the defendants to pay the plaintiff a fine of $500 for having his slave on board their steamboat without the written permission of his owner.
Our decision upon this point was based upon a very positive and comprehensive clause in the second section of the Act of 1840, page 89. “The said fine shall be incurred, when said slave or slaves shall have been found aboard without a written permission from their owners.”
If that clause stood alone, there could be no question of the correctness of our former judgment. The bare fact of finding a slave on board a steamboat, without the required permit, would fix the liability of tho master and owners of the boat.
But, upon a survey of all the provisions of this obscurely framed law, it would seem that the Legislature did not intend that the bare fact should constitute the offence or give rise to the severe penalty, but that tho fact must be coupled with an intent, of which intent the fact was to be presumptive evidence, to be rebutted only on the testimony of two witnesses not employed on the boat, corroborated by circumstances.
The fact gives rise to a presumption that the captain or owners received the slave on board “ with the intention of depriving his master of him and of transporting him out of the State, or from one part of the State to the other.” Section 1. The ingredient of a guilty intent is, therefore, a necessary element in ascertaining whether the penalty was incurred. See Winston v. Foster, 5 Rob. 113.
*29From the fact, in this case, that plaintiff’s slave was found on hoard the steamer H. M. Wright, without his written permission, the law presumes the guilty intent of the captain to deprive the owner of him.
Has this presumption been rebutted in the mode prescribed by the statute?
In the application for a re-hearing, we are referred to the testimony of two witnesses, St. German and Smithers, not employed on board, and to various circumstances, to rebut the legal presumption.
Upon a careful review of this evidence, it appears sufficient to establish that Captain Ciancio did not receive the boy on hoard his boat with intent to deprive his owner of him.
It is, therefore, ordered that the judgment heretofore rendered in this cause be set aside, so far as regards the penalty of $600 ; and that the sum awarded the plaintiff he reduced to one hundred and forty dollars ; and that the judgment in other respects remain undisturbed.
Buchanan, J., took no part in the decision bn the re-hearing.