The opinion of the Court toas delivered by

This was an appeal from the decision made by the circuit court, for the district of Charleston, on the judgment given by John B. White, esquire, a magistrate in affirmance of that judgment. 'The case was, that the sloop Bob, M‘Kee, master, of Nassau, New-Providence, manned by the master, a white man, the mate, a free man of color, and four slaves, seamen, (all stated to be British subjects,) arrived at Charleston in the beginning of January 1823, consigned to James Calder, a British merchant, resident in Charleston. On Saturday, 11th January, after the vessel had cleared at the custom-house and was preparing to go to sea, about 5 o’clock in the afternoon, in the •absence of the master from the vessel, the sheriff’s officers went on board the vessel and arrested the mate and seamen, and carried them to gaol. The consignee and master of the vessel waited upon the defendant and demanded the release of the men, and the defendant,, so soon as he became satisfied that they were immediately about to depart, discharged them upon the payment of the accruing fees, say $ 18 31J.

The seizure was made under the act of assembly of Dec’r/ 1822. The third section authorizes the seizure of any free ne-groes or persons of color, on board vessels coming into port, and to detain them ’till the vessel is ready to depart, Sic. On the trial of the case before the magistrate, the circumstance of three of the persons seized being slaves, was not as appears insisted upon. The men detained were considered as British su- • jects, and as such it was conceived that they were protected from *187Seizure, under the treaty of commerce between the United States, and Great Britain. Tiie same view was presented to the judge before whom the appeal was made, and the judgment of the magistrate was affirmed. The attention of the court has now been drawn to the construction to be given to the act of assembly of 1822, and as the defendant has admitted that the four seamen were slaves, their seizure and detention could not be justified under the provisions of the act, which has reference to free, ne-groes or persons of color, and not to slaves. A new trial is, therefore ordered in the fiase.