JOHNSON, District Judge.
This suit was brought for the recovery of the penalty provided for a violation of the thirteenth section of the post-office act of 1845 (5 Stat. 736). That section declares in substance that , nothing contained in the last-named act shall have the effect, or be construed to prohibit the conveyance or transportation of letters by steamboats, as authorized by the sixth section of the act of 1825 regulating the post-office department (4 Stat. 104), provided that the requirements of such sixth section be strictly complied with, by the delivery, within the time specified by that act, of all letters so conveyed not relating to the cargo or some part thereof, to the postmaster at the post or place to which such letters may be directed or intended to be delivered over from the boat; but it is expressly enacted that all the pains and penalties provided by that act for any violation of the provisions of the eleventh section thereof shall attach in every ease to any steamboat, or to the owners and persons having charge thereof, the captain, or other person having charge of which, shall not comply with the requirements of the sixth section of the act of 1825. The eleventh, by reference to previous sections, fixes the penalty at $150, and to recover which this action of debt has been instituted. The sixth section of the act of 1825, above referred to enacts substantially that it shall be the duty of every master or manager of any steamboat which shall pass from one post or place to another in the United States, where ¿ post-office is established, to deliver within three hours after his arrival, if in the daytime, and within two hours after the next sunrise, if the arrival be in the night, all letters and packets addressed to or destined for such post or place to the postmaster there; and if any master or manager of a steamboat shall fail so to deliver any letter or packet which shall have been brought by him, or shall have been [1060]*1060in liis care or within his power, he shall incur the penalty therein prescribed; and every person employed on board any steamboat shall deliver every letter ami packet of letters intrusted to him to the master or manager of such steamboat before the vessel shall touch at any other post or place; and for every failuie or neglect so to deliver, a penalty of ten dollars shall be incurred for each letter or packet. 4 Stat. 104. These const) tute the substance of the post-office acts, as far as applicable to the present case.
On the trial, the plaintiff proved that Robert Beaty, the defendant, was the master and owner of the steamboat Arkansas No. 4; that upon her arrival at Louisburg, in this state, from the city of New Orleans, at each of which places a post-office had been established, the clerk of the boat was in possession of a letter bearing date at New Orleans, written by M. Greenwood, residing there, and directed to M. Whisler at the town of Louis-burg, and that the letter did not relate to the cargo of the boat, or any part thereof; and that on the arrival of the boat at Louisburg, the postmaster there demanded tiie letter of the clerk of the boat, who refused to deliver it to him, but did deliver it to a private individual, who handed it to the person to whom it was addressed; and that it was not placed in the post-office at all. This was the substance of the evidence on the part of the plaintiffs. There was no evidence adduced, other than the above, to prove that the defendant had any knowledge that the letter was on board the boat, or in the possession of the clerk, or that it was in his power, or that he knew of the failure and refusal of the clerk to deliver this letter to the postmaster at Louisburg upon the arrival of the steamboat there.
Before the jury retired, at the request of the district attorney, the court, by the presiding justice (the Hon. PETER V. DANIEL), instructed them that the defendant, as master of the boat, was responsible for the acts of the clerk; and if they found from the evidence that he received the letter at New Orleans and brought it up to Louisburg, and there failed to deliver it to the postmaster, and ’that the letter did not relate to the cargo of the boat, or any part thereof, the defendant was subject to the penalty, although he was in fact ignorant of its delivery at New Orleans, of its transmission, and of the failure of the clerk to deliver it to the postmaster at Louisburg. The jury found a verdict for the plaintiff for the penalty of $150, and the defendant has interposed this motion for a new trial, on the ground of misdirection on the part of the court. Opon looking into the acts of congress imposing this penalty, and giving them the best consideration of which I am capable, I am of opinion that we erred in the instructions we gave to the jury, and which doubtless influenced their finding.
By the terms of the act of congress, the defendant is subject to the penalty prescribed when he fails to deliver any letter or packet to the postmaster, which shall have been brought by him, or shall have been in his care or within his power. Now, as already observed, there was no evidence adduced to the jury from which they could presume that the defendant had brought the letter, or that it was in his care or within his power. In either of these cases, the letter must have been within his knowledge, for it could hardly be said to be brought by him, or to be in his care or within his power, according to the obvious meaning of the act, if he was ignorant of the existence of the letter, its conveyance, and destination. The clerk alone was proved to have had the letter at Louisburg. in the absence of the defendant; and for any thing that appeared from the evidence, the clerk may have received the letter at New Orleans, secretly, kept it in his own possession. and failed to deliver it to the defendant, or inform him that he had it, or place it in a situation to enable him to obtain a knowledge of it, or bring it to the knowledge of the defendant in any way. It is not necessary to bring express knowledge home to the defendant, and the court is not to be so understood. But it is essential to show such facts and circumstances as render it probable that the defendant, by the irse of ordinary and reasonable diligence, obtained that knowl-. edge, or could have done so, and thus authorize the jury to presume it. If, in the absence of all knowledge, the master or captain or owner of the steamboat is absolutely responsible under this act for the conduct of the clerk, as the district attorney insists, and as we -instructed the jury, then the verdict was right; for in that view, t.he liability was clearly ■ established, and the case fully made out on the part of the government. But under the circumstances of the case, I think, as already stated, that we erred in instructing the jury that the defendant was responsible for the acts of the clerk; that it was not material whether the defendant did or did not know of the existence of the letter, and that in either event he was equally liable for the penalty, provided the letter was delivered to the clerk, brought up by such clerk, and not delivered to the postmaster at Louisburg. according to the sixth section of the act of 1S25. The clerk, for every failure or neglect to deliver to the master of the boat any letter oi packet of letters intrusted to him before the vessel touches at any other place, incurs a penalty of ten dollars. 4 Stat. 104. It would seem strange indeed, that the clerk should be subjected to the penalty of ten dollars only for a wilful failure to deliver the letter to the master of the boat, and the master subjected to the penalty of one hundred and fifty dollars for an omission to deliver a letter, of the existence of which he was entirely ignorant.
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JOHNSON, District Judge.
This suit was brought for the recovery of the penalty provided for a violation of the thirteenth section of the post-office act of 1845 (5 Stat. 736). That section declares in substance that , nothing contained in the last-named act shall have the effect, or be construed to prohibit the conveyance or transportation of letters by steamboats, as authorized by the sixth section of the act of 1825 regulating the post-office department (4 Stat. 104), provided that the requirements of such sixth section be strictly complied with, by the delivery, within the time specified by that act, of all letters so conveyed not relating to the cargo or some part thereof, to the postmaster at the post or place to which such letters may be directed or intended to be delivered over from the boat; but it is expressly enacted that all the pains and penalties provided by that act for any violation of the provisions of the eleventh section thereof shall attach in every ease to any steamboat, or to the owners and persons having charge thereof, the captain, or other person having charge of which, shall not comply with the requirements of the sixth section of the act of 1825. The eleventh, by reference to previous sections, fixes the penalty at $150, and to recover which this action of debt has been instituted. The sixth section of the act of 1825, above referred to enacts substantially that it shall be the duty of every master or manager of any steamboat which shall pass from one post or place to another in the United States, where ¿ post-office is established, to deliver within three hours after his arrival, if in the daytime, and within two hours after the next sunrise, if the arrival be in the night, all letters and packets addressed to or destined for such post or place to the postmaster there; and if any master or manager of a steamboat shall fail so to deliver any letter or packet which shall have been brought by him, or shall have been [1060]*1060in liis care or within his power, he shall incur the penalty therein prescribed; and every person employed on board any steamboat shall deliver every letter ami packet of letters intrusted to him to the master or manager of such steamboat before the vessel shall touch at any other post or place; and for every failuie or neglect so to deliver, a penalty of ten dollars shall be incurred for each letter or packet. 4 Stat. 104. These const) tute the substance of the post-office acts, as far as applicable to the present case.
On the trial, the plaintiff proved that Robert Beaty, the defendant, was the master and owner of the steamboat Arkansas No. 4; that upon her arrival at Louisburg, in this state, from the city of New Orleans, at each of which places a post-office had been established, the clerk of the boat was in possession of a letter bearing date at New Orleans, written by M. Greenwood, residing there, and directed to M. Whisler at the town of Louis-burg, and that the letter did not relate to the cargo of the boat, or any part thereof; and that on the arrival of the boat at Louisburg, the postmaster there demanded tiie letter of the clerk of the boat, who refused to deliver it to him, but did deliver it to a private individual, who handed it to the person to whom it was addressed; and that it was not placed in the post-office at all. This was the substance of the evidence on the part of the plaintiffs. There was no evidence adduced, other than the above, to prove that the defendant had any knowledge that the letter was on board the boat, or in the possession of the clerk, or that it was in his power, or that he knew of the failure and refusal of the clerk to deliver this letter to the postmaster at Louisburg upon the arrival of the steamboat there.
Before the jury retired, at the request of the district attorney, the court, by the presiding justice (the Hon. PETER V. DANIEL), instructed them that the defendant, as master of the boat, was responsible for the acts of the clerk; and if they found from the evidence that he received the letter at New Orleans and brought it up to Louisburg, and there failed to deliver it to the postmaster, and ’that the letter did not relate to the cargo of the boat, or any part thereof, the defendant was subject to the penalty, although he was in fact ignorant of its delivery at New Orleans, of its transmission, and of the failure of the clerk to deliver it to the postmaster at Louisburg. The jury found a verdict for the plaintiff for the penalty of $150, and the defendant has interposed this motion for a new trial, on the ground of misdirection on the part of the court. Opon looking into the acts of congress imposing this penalty, and giving them the best consideration of which I am capable, I am of opinion that we erred in the instructions we gave to the jury, and which doubtless influenced their finding.
By the terms of the act of congress, the defendant is subject to the penalty prescribed when he fails to deliver any letter or packet to the postmaster, which shall have been brought by him, or shall have been in his care or within his power. Now, as already observed, there was no evidence adduced to the jury from which they could presume that the defendant had brought the letter, or that it was in his care or within his power. In either of these cases, the letter must have been within his knowledge, for it could hardly be said to be brought by him, or to be in his care or within his power, according to the obvious meaning of the act, if he was ignorant of the existence of the letter, its conveyance, and destination. The clerk alone was proved to have had the letter at Louisburg. in the absence of the defendant; and for any thing that appeared from the evidence, the clerk may have received the letter at New Orleans, secretly, kept it in his own possession. and failed to deliver it to the defendant, or inform him that he had it, or place it in a situation to enable him to obtain a knowledge of it, or bring it to the knowledge of the defendant in any way. It is not necessary to bring express knowledge home to the defendant, and the court is not to be so understood. But it is essential to show such facts and circumstances as render it probable that the defendant, by the irse of ordinary and reasonable diligence, obtained that knowl-. edge, or could have done so, and thus authorize the jury to presume it. If, in the absence of all knowledge, the master or captain or owner of the steamboat is absolutely responsible under this act for the conduct of the clerk, as the district attorney insists, and as we -instructed the jury, then the verdict was right; for in that view, t.he liability was clearly ■ established, and the case fully made out on the part of the government. But under the circumstances of the case, I think, as already stated, that we erred in instructing the jury that the defendant was responsible for the acts of the clerk; that it was not material whether the defendant did or did not know of the existence of the letter, and that in either event he was equally liable for the penalty, provided the letter was delivered to the clerk, brought up by such clerk, and not delivered to the postmaster at Louisburg. according to the sixth section of the act of 1S25. The clerk, for every failure or neglect to deliver to the master of the boat any letter oi packet of letters intrusted to him before the vessel touches at any other place, incurs a penalty of ten dollars. 4 Stat. 104. It would seem strange indeed, that the clerk should be subjected to the penalty of ten dollars only for a wilful failure to deliver the letter to the master of the boat, and the master subjected to the penalty of one hundred and fifty dollars for an omission to deliver a letter, of the existence of which he was entirely ignorant. The act is penal in its consequences, and must be strictly construed; and as knowledge is generally a principal and indispensable ingre-[1061]*1061client in offences, it would seem reasonable to hold the government to the proof of it, or to the proof of circumstances from which it might be fairly inferred, before the penalty can be demanded.
The master of a steamboat is liable for this penalty when he fails to deliver a letter or packet which has been brought by him. or was in his care, or was in his power; but, in my judgment, the sound construction of the acts of congress is, that the defendant could not be placed in this category at all, where the letter was not within his knowledge, nor placed in a situation to enable him, with the use of reasonable diligence, to obtain such knowledge. Knowledge on his part, express or implied, I regard as essential to his liability, and without which the acts of congress have no application, and do not embrace the case. It is not to be supposed that it was the intention of the lawmaker to inflict a penalty upon the master of a steamboat in a ease where he was ignorant that a letter had been brought upon the boat, either by the clerk or any person employed on board, and had not the means of ascertaining the fact by the use of reasonable diligence. This would be little less unjust than the disreputable device of the Roman tyrant who placed his laws and edicts on high pillars, so as to prevent the people from reading them, the more effectually to ensnare and bend the people to his purposes.
For these reasons, I think a new trial ought to be granted, and it is so ordered; but. as it was the error of the court which renders this necessary, the costs must abide the event of the suit. Ordered accordingly.
On the second trial, which was had 22d April. 1848. — the Hon. BENJAMIN JOHNSON. district judge, presiding; the Hon. PETER V. DANIEL, associate justice of the supreme court of the United States, absent, —the plaintiffs, in addition to the evidence on the previous trial, proved that the letter in question was, on its reception at New Orleans, placed by the clerk of the Arkansas No. 4 with other letters in the letter box of the boat, and impressed with the boat stamp; that the defendant at all times had access to this letter box. and that it was his habit to examine and see what letters were placed on the boat: but there was no other proof as to his knowledge of the letter.
. JOHNSON. District Judge, instructed the jury, that by the act of congress of 1845, § 38 (5 Stat. 78U; 4 Stat. 304), the master of a steamboat is liable for a letter brought by him, or committed to his care, or within his power. It is the province of the jury to determine from the evidence whether the letter in question was either brought by the defendant, or committed to his care, or was within his power. If so, he is subject to the penalty of one hundred and fifty dollars claimed by the plaintiffs. Was it in his power by the use of reasonable diligence? The law, in my judgment, does not require the exercise of the utmost diligence of which the case was susceptible. It only requires such diligence to discover the letter as rational men ordinarily employ in their own affairs; and of this the jury must judge.
Verdict and judgment for plaintiffs for one hundred and fifty dollars penalty and costs, and motion for a new trial denied.