Page:United States Reports, Volume 2.djvu/146

 I ago Cases ruled and adjudged iu the a [ t79a. If they do, it muft be, either beeaufe the departure was without P1`! his owner’s knowled, _or becaufe it was made with a view to his own private bench`;. It was not much urged at the bar, that every deviationwithout orders, amounted_ to bamatry; yet, as this was the very point, upon which I have reafon to think the jury divided in opinion, l will notice it. It is true, thatin many of the commercial cities of Europe, a deviation without the owa
 * ner’s confent will not difchar the infurers. It is fogftablifhed

in Frau: (a)..l1¢¢rdam    (1:) and Rotterdam But this is the operation of pofitive ordinances. Nojuch re e lation is known among us. On the contrary, Lo_rd Mmjgd lays down the rule in r Bur. 347, inthefe words: Elf voyq age is altered, or thc chance varied, by the fault of _the infured, or gf tb: mq,/fer, the owner ceafes to be liable.” Park inp.336, is clear, that •*it makes no difference whether the infured were or were notconfenting to the deviation." If the term iryimd is thought equivocal, Wg/but is more exprefs, and in p. tg says ; “ it makes no difference whether the owner gftl~:_/lu), or e pro· prietor of the goods, were or were not privy to the ‘deviation." In Elton {9 Bragdqw (e) the deviation was againft theexptefh and pofitivc orders of the owners, yet.it_ was nct barratry. Cafes might be multiplied; but the point will not bear further com- ment. · But the mafter‘s intention was relied on by both  It was admitted, that if the mafter had deviated withaview to his private advantage alone, and without intending any benefit to bis owners, it would have been barratry. The law is fo, and the xeafon is plain: Such condu& imports fraud on the face ofit. It is a cheat upon the owners and _/écretb putting in his pocket, what belongs to them, On the other hand it was agreed, that. if it had been for the exclufive benefit of his owners, it would not have been barratry: And why not? Becaufe it is impoflible to impure fraud to fuch difinrerefted conduél. The cafe before us is a middle cafe between the two I have mentioned. The maf- ter did intend the profit he might have gained, fhould be for the benefit of his owners and himfclf ; and, while the defendants urge, that his attention to his owner’s benefit renders it a mere deviation, the plaintiffs contend, that the private views poifon the whole tranf`at‘.`tion, and make ir barratry. Inconveniences appear to refult from either conftruéiion, and I think it would he mifchievous to give the captain’s condu£t,f·:m rbi: circum- jauu alone, a definite name. It does not ig,G#' fuflicientlyim- port either fraud or fairnefs, to acquit or condemn the tranfac- tion. Cafes may be put, where an attention to hisownintereft may not he inconfiftent with the general purity of the mafter’s vgwi. uc t fu) a Magens 174. (6) a Mag. (r) 15,73. (cl) I5.g1. (z) 2. Stru. :264.

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