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Hart, qui tam, against Cleis
Per Curiam,. The action below was brought for a penalty incurred under the 6th section of the act concerning slaves and servants. (Laws, vol. 1. 612.) The special causes of demurrer stated upon the record, are not material; but the defendant relies upon what he alleges to' be defects, in substance, in the declaration, viz. that the plaintiff does not negative the excepted cases in the sec-3 lion, and that he does not aver that the defendant was master of the slave, or acted with his privity.
It is a sufficient answer to the first objection, that the exception forms no part of the plaintiff’s title or right of action, but is merely matter of excuse for the defendant. The excepted cases are not incorporated into the body -and substance of the enacting clause; but are given as ■exceptions, and the instances are not specified in that, but in the subsequent section. The law on this subject has 44 been repeatedly declared by this court. (3 Johns. Rep. 438. 4 Johns.
Rep. 304.) It is evident, from a view and comparison of the 6th and 7th sections of the act, that this case falls within the reason of those decisions that the excepted cases are mere instances of excuse to a party who takes a slave out of the state.
Nor does there appear to be decisive weight in the other jection; for the words of the act are, “ that if any p. ■'■■an shall export, or attempt, &c. he shall forfeit,” &c The doubt has been created by the last words, u and ft».; slave so exported or attempted to be exported. cb-T be free.” This clause cannot operate, unless the mwi.;". he concerned in the exportation; for to attach it co uil conviction of a stranger, without the knowledge or privity of the; master, would be depriving the master of his property unjustly.
And, on the other hand, to confine the penalty to the act of the master only, would be contrary to the letter and spirit of the act, and would go, in a great measure, to destroy the effect of the provision.
By applying the penalty to every person offending, and by restricting the enfranchisement of the slave to cases ef offence by ■ the master, the act will operate with efficacy and with justice; and it is the duty of the courts so to construe statutes, as to meet the mischief, and to advance the remedy, and not to violate fundamental principles. For these reasons, the judgment below ought to be reversed.