Page:United States Reports, Volume 1.djvu/194

Rh 

1786.

may and often do differ :  This has happened in the caufe before us. But as to other matters, the witneffes on board the Hibernia only fwear, ‘‘ that they did not fee nor hear, what the others fay, they did.’’ The rule in fuch a cafe is, ‘‘ that one affirmative witnefs countervails the proofs of many negative, becaufe both may fwear true, ’’  and fuch interpretation fhould be put on the whole teftimony, as to reconcile it ; for, one may fee and hear what another does not. ''Gilb. Law oƒ Evidence'' 157. However, it does not appear neceffary to determine this firft point, as the fecond queftion admits of little difficulty, viz. Whether the Refpondent has been guilty of fuch groʃs negligence as fhould make him refponfible?

The Refpondent was near to the Betʃley, as well as the two other Letters oƒ Marque : he might have gone on board her, and made every neceffary and proper inquiry ; he fent two of his crew on board her, to get her if poffible into Delaware &c.  he figned the order to M‘Neil  the Prize-mafter, which muft have fhewn, to perfect conviction, that the Betʃey  had been captured by the Argos, and that fhe was a ƒriend.  But it is faid, that he confided in Prole, whom they had made Commodors, and and in Thompʃon that they deceived him ; and that he figned the orders to the Prize-mafter without reading them ; and, in fhort, that he implicity obeyed, and did whatever he was told to do. The Refpondent fhould have reflected, that the feizing a valuable veffel and cargo was a ferious piece of bufinefs, if belonging to a friend ; he fhould therefore have weighed the confequences of his credulity in others ; he could have inquired for himfelf, and had the fame evidence with Prole and Thompʃon ;  he fhould have confidered, that his owners placed their confidence in him,  and in no other ;  he fhould have acted for himfelt, and taken care that he did not injury to any one. But he does not appear, by the defence made for him, to have exercifed his own judgment at all. Was this ufing proper care and diligence, or was it inexcufable conduct, and grofs negligence?

Let us now confider the law upon this evidence ; for, ex ƒacto oritur lex. It is agreed, that every one of the parties to a trefpafs, who participates in it, is a trefpaffer, and an action will lie againft him as a principal ; for, there can be no acceffary to a trefpafs :  ''Bro. treʃpaʃs, pl.'' 113. 1 Lev. 124. that a trefpafs was committed in taking and carrying away the Betʃey from the Commander of the Argo ; that the Refpondent was prefent, aiding and affifting in the taking and carrying her away : and that Captain Silas Talbot  could have maintained his fuit againft the Refpondent, as well as againft his owners, for the wrong and injury they have done to him. But, it is contended, that though he might be refponfible to Captain Talbot, he is not fo to his owners, for that his relation with them was by contract, and the contract between a fervant and his mafter, or between a Captain of a fhip and his Owners, points out the meafure of the Servant's or Captain's refponfibility ; that he ought not to be accountable in damages for an error in judgment,  but only for the ƒault oƒ the heart,  and that he acted according to the beft