
    Sylvester Smith, Administrator of the goods and estate of Charles Tryon, jun. deceased, against Ebenezer Gilbert.
    WRIT of error.
    This was an action of book debt, brought by Tryon, the intestate, against Gilbert.
    
    The court referred the cause to auditors; before whom the plaintiff exhibited the following account.
    “ Dr. Eben. Gilbert (physician) to Ch. Tryon, jun. Cr.
    “ 1805,
    “ July 13th. To my wages, as master of the schooner Peggyi from 13th of July to 18th of December, 5 mo. 5 days, at 36 dollars per month, SI86 00
    “ Supra Cr.
    “ By my first month’s pay, S 36 00
    “Balance due, 8150 00”
    Upon the tap-ture of a vessel, the duties of the master, as sueh, cease, and he is no longer entitled to -wages i but a new duty, by implication of law, devolves upon him, as agent for the owners, which he is bound to exercise with sound discrer tion, and for which he is entitled to a quantum me-ruit.
    
    It was proved, and admitted, that Gilbert was owner of the schooner Peggy ; that on the 13th of July, 1805, Tryon entered on board, on an agreement to go te Cape Anri’s, in Martinique, to deliver the cargo there, and „ thence to return to Connecticut; that he arrived at Cape Ann's, and there delivered the cargo, on the 6th of 
      September, 1805; that o'n his return voyage, he was captured by an English cruiser, on the 29th of September, and Carried into St. Kitts, where he arrived on the 1st of October¡ that on the 6th of October, he went to Antigua, where the schooner and cargo were libelled before a court of vice-admiralty, and proceeded against in such a manner, that, on the 12th, they were condemned as lawful prize, under the pretext of being -jnemy’s property, and of having gone to Martinique, then claimed to be a besieged port; that he remained at Antigua until the. 19th of November, claiming the property, and endeavouring to prevent a condemnation; that he went thence to St. Kitts, where he arrived on the 27th of November, and thence sailed for Arew London, where he arrived on the 18th of December. -*
    June, 1809.
    The objection to the plaintiff’s account was, that he, as master, was not entitled to wages after the capture; but that it was his duty to do what he did for the preservation and restitution of the vessel and cargo, without any right to compensation in the evertt of condemnation. The auditors recognised this objection as a valid one, and decided accordingly. To the acceptance of their report the plaintiff remonstrated, on the ground that they had mistaken the law. The superior court accepted, the report. Tryon having deceased, Smith, his administrator, brought this writ of error.
    
      Daggett and Staples, in support of the judgment, contended, that the master and mariners, in case of capture, arc entitled to no wages, unless the vessel be restored, and freight earned. They cited Abbott, 370. Molloy, lib. 2. c. 3. s. 7. 10. The Friends, 4 Fob. 143. Beale v, Thompson, 4 East, 546.
    
      llosmcr, for the plaintiff in error,
    admitted, that ac-co’rding to the law-merchant, the master, by capture, forfeits his wages arising from the shipping-bill, or express contract; but contended that, as agent, with implied authority, he is entitled to a quantum meruit for his services after capture.
   By the Court.

It is a settled principle, that the wages of the master and mariners, as such, are forfeited, or lost, with the destruction or loss of the ship and cargo. Yet, upon the capture of a ship, though the duties of the master, as such, cease, the property being taken forcibly from him, a new duty is devolved upon him as agent for the owners; a duty which, with sound discretion, he is bound to perform, so long as there is a reasonable prospect of success.

This agency is not in the nature of a voluntary courtesy. It is a duty the law imposes on him, in the absence of the owners; and the policy which makes wages depend on the earnings of the ship to secure the exertions of the mariners for her safety, does not extend to such agency after capture. It is for the interest of owners that such agents should be faithful. To make them so, sound policy dictates a reward for their services ; and though precedents of adjudged cases in point are not found, we are of opinion, that a master acting faithfully in such new capacity of agent, is entitled to a reasonable compensation for such services ; and that the superior court, in accepting the report of auditors in this case, professedly made ¡on the principle that no compensation could by law be allowed for such services, erred and mistook the law; and that the judgment ought to be reversed.

Judgment reversed.  