Joseph Hart, in July, one thousand seven hundred and ninety-nine, shipped, as a mariner, on board of the American ship Littlejohn, art Edenton, in North Carolina, on a voyage from thence, to Liverpool, in England, and back to Eden-ton. The ship went to Liverpool; and delivered her cargo. On her return, she was captured by a French cruizer, in the possession of which she remained about eight days. She was recaptured, by an English frigate, and carried into Lisbon; where she was restored, on payment of salvage, and arrived, from Lisbon, at Philadelphia, where the mariners, who came in her, were discharged. The libellant was taken on board the French cruizer, and carried into France, a prisoner. Being there released, he worked his passage home. The question made, in this cause, is, “Whether this mariner, who was forcibly taken from the ship, in which he was engaged for the voyage, shall be paid, pro rata, to the time of capture, or shall have his full wages for the voyage?” Without entering into the facts, as to the voyage being ended at Philadelphia, or not; the cause was put on the question stated — to it, therefore, I shall confine myself.

I have, heretofore, in many instances, decreed, that seamen, under like circumstances, with the libellant, should be paid their full wages for the voyage. I have always supposed, that if the ship, owing to the absence of one, or, more mariners, thus forcibly taken away, was at the expense of hiring others, this extra expense was chargeable as an average loss;2 or, in an account, for spoliations on our neutral commerce, if the capture was made by the subjects of a power in amity with us, and was finally adjudged unlawful; yet, having only the right to determine the question of wages, I have not given • my opinion, as to consequences, or entered into collateral enquiries.3 I had grounded my opinion, in cases like the present, and those of sailors falling sick, during the voyage, on the authorities cited by the libellant’s counsel, and some others. Vide Consolato del Mare, c. 179, § 202; Sea Laws, 130; Laws Oleron, art 7, p. 140, note; Emerig. Ins. pp. 635, 637, 638; 1 Valin’s Ord. France, pp. 75, 748; Pothier Louage de Matelots; Laws Wisby, art 45, p. 203. These authorities, or several of them shew, among other things, *688that if a mariner is sent out of the ship, on a special service, and is taken, and made a slave, falls sick, &e. his ransom, cure, and expenses, are to be paid by the master, or owner, as-, well as nis full wages for the voyage. It is certain, that those authorities which mention the case of a special mission, are most dear, on the point of ransom; though it is often said, in addition, “that the ransom shall be paid, without prejudice to wages.” There is also, in 1 Valin, 748, a distinction taken, between the case of one sent from the ship, and that of one taken in the ship, with the rest of the crew.4 In this latter case, the ransom of no one is to be paid. If the vessel is made prize, and lost to the owners, no doubt, neither ransom or wages can legally, or justly be claimed. There is a special obligation, however, on the owner or master, to indemnify a sailor; sent on extra duty, and exposed thereby to uncommon risk. But in .these' authorities, whenever wages are mentioned, they are not designated as due, merely on account of the misfortune occurring on the particular exigency, but on the general principle — “because he (the mariner), is not in fault;” and it is added, “the defect of service is no more to be imputed to him, than if he had fallen sick on the voyage, in which case, his wages are due without deduction.” 1 Valin, p. 748.5 Thus, placing his capture, even on special service, as it respects wages, on the same footing with his. falling sick on the voyage. Now it is clear, that in case of sickness preventing a performance of duty, if the malady be not occasioned by the mariner’s mal-con-duct, the full wages are payable, whatever expense, or loss, the ship may incur, on this account; and I see no reasonable distinction, between this case and that. If a sailor dies-on the voyage, his heirs shall have his full wages. If killed in battle, they shall also-have a share of all prizes. See Valin; Emerig. Ins. 633, 637, 638; Laws Oleron, art. 7; 1 Esp. 114. If it were relevant to this point for me to shew, that the. loss should be-charged as an average loss, I might cite-from the 3d edition of Malyne’s Lex Mercat., p. 62, of his “Collection of all Sea Laws,” the 18th chapter, where it is declared, that when goods are taken by a pirate out of a. ship, though not as contribution for the rest, yet the loss shall be common to all concerned.6 The chance of the seaman carried off, while others are permitted to remain, should not be worse than that of the owner of the particular goods, taken at the pleasure of the pirate. Mal. Lex Merc. 109. But I do not niuch rely on this analogy, or authority;- my opinion is founded on the general principle — “That, where a mariner is prevented by force, when he is-not in fault, from performing his voyage, he is to be paid his full wages.” Consulato del Mare. But if, during the time the voyage continues, he earns wages in other service, these shall be deducted from his claim. I have uniformly, In such instances, ordered this to be done.

The general principle which has influenced my judgment, is established in the Curia Philippica, 472, 36, where it is laid down, that “if a master- of a ship discharge a mariner, before the end of the voyage; or if, by a fortuitous circumstance, he ceases to serve, yet he shall have his wages, for the time past, as well as for that to come.” But all wages, earned, during the time he was in another service, are to be deducted. In the Roman Digest (pages 514, 515) the like general principle is established, in the cases of servants, an amanuensis, and in that of an advocate, who is not obliged to return his fee, if it was not his fault that he did not try a cause. See, also, Godol. Adm. Laws, pp. 177, 178, note and text. It is true, that this general principle cannot be carried into all cases. In the British law' books, we find it held by respectable judges, “that a seaman impressed, or one of the crew of a ship ransomed, shall only be paid pro rata.” But the im-pressment of seamen, is deemed, in England, a lawful act, and encouraged by the policy of that country; and the seaman receives, *689on his change of employment, what by their laws, are established as competent wages. The ransom of ships captured, is the purchase of the property from the enemy, after it is lost, and the ransomers hold it, in some measure by a new title. Capture, involves the loss of wages. The ransom of ships is not encouraged by the British government, but their laws particularly favour recaptures. and in such cases, extend the jus post-liminii farther, than those of most other nations. Whatever the opinion of common law judges may be, I am bound to follow the rules of the civil and maritime law. When the ship and cargo are restored, on recapture, and payment of salvage, the owner recovers his freight; and this is the parent of wages. It is only where freight is recovered, that I have applied this general principle, to the claims of seamen. They contribute, out of their wages, their proportion of salvage. That no adjudged case be found in the books, exactly- like this under consideration, is, perhaps, true. It may never have been disputed. But, as such cases frequently occur, this point is of considerable importance, both to our merchants, and mariners. I do not wish it to rest on my judgment alone. Whenever the sum claimed, is sufficient, in amount.7 to warrant an appeal, I shall recommend the cause to be carried up to a superior court. In the mean time, I cannot see any good cause to alter my opinion, and I therefore, adhere to the principles of my former decisions: And do adjudge, order, and decree, that the said Joseph Hart, have, and recover, in full satisfaction of his wages, the sum of one hundred and fifty-three dollars, and eighty-three cents, being the balance of his full wages for the voyage. Out of this sum, are to be deducted any sums, received by him, and also his proportion of salvage, paid on the restoration of the ship, and cargo. And I do further adjudge, order, and decree, that the said ship Little-john, together with her tackle, apparel, and furniture, or so much thereof, as may be necessary, be condemned and sold, for the payment of the sum of money, herein before decreed, to the said Joseph Hart, and of the costs and charges, accruing in the premises.