Page:United States Reports, Volume 1.djvu/195

184 

1786.

beft of his judgment ; and his error in this bufinefs arofe from the mifinformation and deception of Prole and Thompʃon.  In fupport of this doctrine were cited 1 ''Blackʃt. Com.'' 422. 389. 3 Bl. Com. 163. 3. ''Bac. Abr.'' 544. 564. 4 Co. 83. 10 Mod. 109. 4. Burr. 2060. 11 Mod. 135.

In reply to this, it has been agreed, that the mafter or commander of a Privateer or Letter of Marque may lawƒully ftop the fhip pf a ƒriend, examine her papers, the people on board, the cargo &c. in order to difcover, whether fhe belonging to a Friend, or an Enemy; and if upon the whole it fhould be doubtful, to bring her into port, for further infpection and trial, without breaking bulk, or imbezzlement of the lading. But if the captor imbezzled the cargo, difpofed of or ufed any part of it, fent away the captured mariners, or did any other acts, which fhew he could have no reaƒonable doubt, in fuch cafe he is liable for damages and cofts. Lee on Captures 202. 240. Beawes L. M. 207. 1 Rolls Abr. 530.

It is infifted upon, that a mafter of a fhip is one, who for his knowledge in navigation, fidelity and difcretion, hath the government of the fhip committed to his care and management ; that he muft given an account for the whole charge, and, upon failure, render fatisfaction : And, therefore, if misfortunes happen, if they are either through the negligence, wilƒulneƒs  or ignorance of himfelf, or mariners, he muft be refponfible ; and his owners may fue him for reparation of damages, jointly or feparately, both according to the common law, and marine law. See I Vol. Laws oƒ Admiralty 186. Beawes L. M. 49. ''Bath. Niʃs Prius'' 24. 3 Keeble 444. 3. ''Bac. Abr.'' 564. 3 Black. 163.

A great loft then has been fuftained by the injury done in the feizure of the Betʃey ; it will be heavy, and muft finally fall upon the owners or mafter. If the bringing of the Betʃey too, for the purpofe of enquiring whether fhe belonged to a friend or an enemy, was lawful, the fubfequent conduct was unlawful, and the feizors became thereby treʃpaʃʃers ab initio.

This was a lata culpa in Prole  and Thompʃon at leaft, the Refpondent was prefent aiding and affifting in carrying her away from the Argo.  If one does a trefpafs, and others do  nothing but come in aid, yet all are principal trefpaffers. ''Bro. treʃpaʃs. pl.'' 232. 20. ''Vin. Abr.'' 460. title treʃpaʃs.pl. 3. and ʃo. 466. Letter U. If A comes in aid of  B, who beats me, yet he is a trefpaffer as well as B.  22 Aʃʃ. 43. If the conduct of the Refpondent was not wilƒul and with ƒull knowledge,  yet it appears to us to have been a craʃʃa negligentia  and that any reafonable man, upon inquiry, and the leaft reflection, upon reading the orders given to the Prize-mafter M‘Neil,  (and he ought to have read them) or upon the circumftances attending the whole, muft have been fatified, that the Betʃey  was a prize to the Argo.  It is a wrong pofition, that a mafter of a fhip is not anfwerable for an error in judgment  but only for the fault oƒ the hear  in civil matters. In criminal cafes, as well in others as in a mafter of a fhip, it is true. One non compos mentis is anfwerable civilly for