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Page:United States Reports, Volume 2.djvu/145

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Soranua Coun- or Pena/j-luaiei ig, as imports fraud. There are fome inaccurate exprellions in the tyga. hooks, as that of “ wilful deviation’T; but they muli mean cri- ¢'V* rninal or fraudulent deviation. '1"he opinion ofthe Coun was delivered on the roth of january. M•Kr:au, Ch? _‘]¤_qh2·:, after {rating the material fa&s, faid— This is either a eviatinn ora harratry. '1`henatureofhar·ra¤·y feems now pre well underltood, and we think there ought to appear fraud innihe mafter’s mndnét, before it is oonlidered aa harrauty. Barra is a criminal a& inwards his owners, or an a& done folely foirhis henelit, without the eonlent of the owners. Vedonotdrfeoverindniscafe,anymarks oferiminsl milhe- baviour, and the judgment muh he for the defendants. Smyrna, Fha.-]: is a mere imprudenee of the mailer; and for that owners alone are anfwerablc Yraans, jryfiu, concurred, but gave no feparate opinion. Bnanrortn;:?¤yI¤k¢ :—As this is a mereantile queltion and di- videdarery pe&ablejtrry,lthinkitright tolbte my opi- nion pretty much at large.

 llates a voluntary departure fromthe due

courfe thevo ge, without any necdlity or jolt caufe. This will, therefore, the policy, uulefs the cireumllanees at- gldépggit, prove it tori (as the plaintiEs contend it is) an al]: Beforemltake notice of thofe eireumitances, it will be proper eo afcertain what is meant by barratry. Ithas been often dei; ned, and its general meaning feems nowas well Exed, as that of any other term known in the la·w._ From comparing thefe defi- nitions, it appears, that the terms ** villainy, knavery, cheat, mal- verfation, trick, deceit,>or fraud- of the mal%er,” are ufed as f - nonimous with it. The adjudged cafes, from that of Kngbr E; Cambridge {a in t—·]24, down to that of Nut U Burden (5) in t786, {peak the fame language. There is no cafe of barrat , in which we may not perceive fome fraud, or criminal oondug, in the matter. Sailing out of port without payment of duties, _ is not anexception: This is {aid to be ne leét, but it is more; it is evidently a fraudulent and criminal agi, expoling the {hip to forfeiture, for the dilhonelt purpofe (rj of putting money in his own pocket. Sometimes, indeed, it is dillieult to diflinguiih the lower fpecies of fraud, from the higher degrees of mere mifcon. duft. But one thing is clear, ifthe fails-are not ltrong enough to import fome~ fraud, or criminal conduét, in the mailer, what-. ever name we ma find to his conduit, we cannot call itharratry. 'Ihc queltion then is, •¢ do the faéts, found by the fpeciai verdié}, Ex any fraud, or criminal- conduét, on captain Kr·:Ier.” S 2 Iff (o). Mad. Ld.R¢y. (6) t Term Rep. gag., (tg) Cauvpmp. rg:.