delivered the opinion of the court.

This was an action under the 31st section of the 1st article of the act ‘‘concerning slaves,” which is as follows :

“Any master, commander or owner of any boat or other vessel, who shall transport any slave out of this State, in such vessel, or from one point or place in this State to any other point or place in the same, in such vessel, without the consent or permission of the person to whom such slave does of right belong, or who has authority to grant such consent or permission, shall forfeit and pay the value of such slave to his owner, to be recovered by action of debt, without prejudice to the right of such owner to his action at common law.”

It was stated in the first count of the declaration that the plaintiff was the owner of the slave therein mentioned, that the defendants were the owners of the steamboat “Edward Bates,” and that in the year 1848, they transported the slave of the plaintiff from St. Louis, in this State, *372to Keokuk, in the State of Iowa, without the consent of the plaintiff, or any authorized person, and that the slave was worth eight hundred dollars.

The second count merely stated as the gravamen, that the defendant transported the slave out of this State, in the steamer “Edward Bates,” without consent, See.

There having been a judgment by default against one of the defendants, and none of the others, except Sparr, having been served with process, he pleaded the general issue, and on the trial (as to him) it was proven that the plaintiff was the owner of the slave, and that the defendant was one of the owners of the “Bates.” The witness, who was the plaintiff’s agent for hiring his slaves also testified, that some eight days before the 20th of June, 1848, (covering the time alleged in the declaration) he missed the slave in question, and hearing that he was on board the “Bates,” a packet boat running between St. Louis and Keokuk, repaired to the wharf, found the boat about starting with the slave on board, and took him off. The clerk of the boat told witness that the slave had been thus on board the boat for two trips, and offered to pay the hire, which witness declined to receive.

The witness further testified that the slave was worth six hundred dollars; that he had never authorized the hiring of him on said boat, and knows from his relation to the plaintiff that he did not, and that soon after the occurrence the defendant called on the plaintiff and told him he wished to compromise the matter, as he had sold out of the “Edward Bates” since the taking of the slave to Keokuk.

This being the substance of the testimony, the court, at the instance of the defendant (the plaintiff objecting) instructed the jury that the plaintiff could not recover in this action. The plaintiff excepted to this instruction, took a non-suit with leave to move to set it aside, and having done so, assigning the instruction of the court as the reason therefor, and the motion being overruled, he brings the case to this court by writ of error.

We are of opinion that whilst the stringent provisions of the act in question may be well enough, and invariably applied to the punishment of the master, commander or owner of a boat who transports a slave out of the State, the phrase is inapplicable to a mere part owner, as in this case, who was absent, and who it is not pretended either knew of counseled or consented to the commission of the act complained of, whilst, therefore, from the testimony, the captain or commander in this case, or the boat itself, (in rem) was doubtless liable to the penal infliction imposed by the statute, a mere ownet should not be rendered liable *373beyond the actual damage sustained, and for that, of course, in an action different from the present one.

The judgment of the circuit court is, therefore, atírmed.