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Si filius familias. 3. If a son or servant shall receive, with the consent of the father or master, they shall be liable jointly and severally. Also, if the servant of a master of a vessel shall steal or occasion damage, the actio noxalis shall cease; because the master is liable in his own name ob receptum. If, however, the master has not been consenting, the action de peculio shall lie.
Hoc autem rei. 94. This action (de recepto) being for the thing itself, as Pomponius says, shall not abate by the death of the defendant, but be continued against the heir.
Novissime videndum. 95. This relates merely to the form of bringing the action, as whether the penal and civil action can be joined.
Paulus, lib. 13. Ad edict. Sed et ipsi nautæ. But the action of theft belongs to the mariner who is in danger of suffering from it, unless he should steal himself and be robbed afterwards; or unless he should not be liable for the thing stolen by the other.
Si nauta nautæ. 1. If a mariner shall receive the property. of a mariner, an innkeeper of an innkeeper, or a stablekeeper of a stablekeeper, he shall be liable in like manner.
Vivianus dixit. 9 2. Vivian says that this edict also extends to things which are put into the vessel after the merchandise, and for which no freight is due: as clothes, provisions, &c. as being accessory to the location of the other things.
LAW V. Gaius. lib. 5. Ad edict. provinc. Nauta et caupo. Mariners and innkeepers are not paid for the custody of things; but the mariner for carrying passengers, the innkeeper for lodging travellers at his inn, and the stablekeeper for taking beasts in his stable; and yet they are held custodiæ nomine. So the fuller and tailor receive a reward, not for
the keeping of goods but for the art which they employ upon them; and yet they are bound ex locato, custodiæ nomine.
Quæcumque de furto. § 1. Whatsoever we have said of theft must be understood of damage; for it cannot be doubted but that he who receives things to be kept safely is bound to preserve them from damage as well as from theft.
Paulus, lib. 22. Ad edict. Licet gratis. Although you navigate gratis or are entertained gratis at an inn, yet those actions shall not be denied to you if you have sustained damage by injury.
Si servo meo. Q. If you make use of my servant in a ship or tavern, and he occasions damage to me, or commits theft, although the action of theft and the damage is mine, yet this action, because founded
the fact will lie for me in the name of my servant against you. It will be the same, if the servant is common between us. You, however, will have an action against me pro socio or communi dividendo; or if you have hired part or the whole of him, then you will have me bound ex conducto.
Sed si. 9 2. But if the damage be done against him (the servant) by another who is in the same ship or tavern, I think no useful action will lie eo nomine.
In factum actione. 3. The innkeeper is liable to the action in factum (action on the case) for those who lodge in his inn; but it does not belong to him who is received there transiently as a traveller.
Possumus autem. $ 4. We may, however, use the action of theft or that of damni injuria with mariners; but we must be contented with one action; and if we act against the owner or master, we must lend him our action, although he has an action ex conducto against them. But if the owner or master is absolved from this action, and it is afterwards brought against the mariner, he shall be allowed to plead it; that the same man's cause may not be tried twice. And vice versa, a plea shall also be given.
Ulpianus, lib. 18. Ad edict. Debet exercitor. The master must answer for the acts of all his mariners, whether slaves or freemen; and it is very proper he should answer, as he himself appoints them. But he does not answer further than for damage done on board of his vessel; and he is not to answer for any thing done out of the vessel although by mariners. Neither is he bound, if he first gave notice, that every one should take care of his own things, and that he would not answer for the damage; and if the passengers agreed to it.
Hæc actio. %. This merely concerns the form of the action.
Sed si quid nautæ. 2. But if the mariners occasion damage to each other, no action lies against the master. But one who is both a mariner and a merchant will be entitled to this action.
Si servus nautæ. \ 3. If the servant of the mariner occasions damage, although he is not a mariner, an useful action will justly lie against the master or owner.
Hæc autem actione. 9 4. For the owner or master is liable to this action in his own name, who admitted such persons; and therefore if they should die, the action shall not abate. But in the name of his own servants, he will only be liable to the actio noxalis. For when he admits the servants of other people, he should first satisfy himself as to their character; but he is pardonable as to his own whom he employs for the use of the vessel.
Si plures navem. 5. If several own the vessel, each shall be liable, in proportion to his interest in the ship.
Hæc judicia. $ 6. These judgments, although honourary, are, however, perpetual; yet they shall not be given against the heir. Therefore if a servant commands a vessel and dies, the action de peculio shall not lie against the master, nor within the year. But if a servant or son command or keep a vessel, inn or stable with the consent of the father.or master, I think they shall be liable to this action jointly and severally (in solidum) as having jointly received the profits.
(To be continued.)
AMERICAN STATE PAPER.
Message from the President of the United States, to both Houses
of Congress at the commencement of the second Session of the
tenth Congress, November 8, 1808. To the Senate and House of Representatives
of the United States. IT. would have been a source, fellow citizens, of much gra
tification, if our last communications from Europe had enabled me to inform you, that the belligerent nations, whose disregard of neutral rights has been so destructive to our commerce, had become awakened to the duty and true policy of revoking their unrighteous edicts. That no means might be omitted to produce this salutary effect, I lost no time in availing myself of the act authorizing a suspension, in whole or in part, of the several embargo laws. Our ministers at London and Paris were instructed to explain, to the respective governments there, our disposition to exercise the authority in such manner as would withdraw the pretext on which the aggressions were originally founded, and open the way for a renewal of that commercial intercourse which it was alleged on all sides had been reluctantly obstructed. As each of those governments had pledged its readiness to concur in renouncing a measure which reached its adversary through the incontestable rights of neutrals only, and as the measure had been assumed by each as a retaliation for an asserted acquiescence in the aggressions of the other, it was reasonably expected that the occasion would have been seized by both for evincing the sincerity of their professions, and for restoring to the commerce of the United States its legitimate freedom. The instructions to our ministers, with respect to the different belligerents, were necessarily modified with a reference, to their different circumstances, and to the condition annexed by law to the executive power of suspension, requiring a degree of security to our commerce which would not result from a re
peal of the decrees of France. Instead of a pledge, therefore, for a suspension of the embargo as to her in case of such a repeal, it was presumed that a sufficient inducement might be found in other considerations, and particularly in the change produced by a compliance with our just demands by one belligerent, and a refusal by the other, in the relations between this other and the United States. To Great Britain, whose power on the ocean is so ascendant, it was deemed not inconsistent with that condition, to state explicitly, that on her rescinding her orders in relation to the United States, their trade would be opened with her, and remain shut to her enemy, in case of his failure to rescind his decrees also. From France no answer has been received, nor any indication that the requisite change in her decrees is contemplated. The favourable reception of the proposition to Great Britain was the less to be doubted as her orders of council had not only been referred for their vindication to an acquiescence on the part of the United States no longer to be pretended; but as the arrangement proposed, whilst it resisted the illegal decrees of France, involved, moreover, substantially, the precise advantages professedly aimed at by the British orders. The arrangement has, nevertheless, been rejected.
This candid and liberal experiment having thus failed, and no other event having occurred on which a suspension of the embargo by the executive was authorized, it necessarily remains in the extent originally given to it. We have the satisfaction, however, to reflect, that in return for the privations imposed by the measure, and which our fellow citizens in general have borne with patriotism, it has had the important effects of saving our mariners, and our vast mercantile property, as well as of affording time for prosecuting the defensive and provisional measures called for by the occasion. It has demonstrated to foreign nations the moderation and firmness which govern our councils, and to our citizens the necessity of uniting in support of the laws and the rights of their country, and has thus long frustrated those usurpations