1786.
or not; and that they concluded to fecure her as a prize, as they difbelieved what has been faid by Weʃt and Church about ther being prize to the Argo or if fhe was, yet, as they had been in fight at the time of the capture, they were intitled to a fhare. Thefe facts are alfo confirmed by the depofition of John Grover.
On behalf of the Refpondent, the depofitions of John Brice, firft Mate of the Hibernia, John Magill, George Stout, George Eldridge and Aaron Aʃbbridge, mariners on board, and of Doctor Wilʃon Waters, Surgeon of the Hiberna, prove, that they did not fee this Argo and Betʃey, nor hear any firing of cannon, on the 6th of September, and that neither Captains Prole nor Thompʃon were on board the Hibernia on the 7th, nor was the Refpondent on board of either of their veffels. In which laft particular Davis and Groves concur. Thefe witneffes alfo differ with Davis and Groves, about the hour that the Hibernia failed in purfuit of the Argo, the duration of the chafe, and the time of her return and rejoining the other Brigs.
It has alfo been given in evidence, that a fuit had been inftituted in the Admiralty by Captain Sillas Talbot qultam &c. againft the owners of the three Brigantines, for the fpoliation of the Betʃey and her cargo, who, upon an Appeal to this Court were decreed to pay Ł. 11, 141. 5. 4 damages to the Libellant, befides the cofts, of which fum the prefent Appellants, as owners of the Hibernia, paid Ł. 3, 795. 3.6. and towards cofts on the 22d January 1765.[♦]
Upon this ftate of the cafe, two Queftions arife:–The 1ft oƒ ƒact; the 2d of law.
1. With refpect to the ƒact, there are two points, 1fr. Whether the Refpondent did willingly join the two other Captains Prole and Thompʃon, in the tortious capture of the Betʃey from the Argo, knowing her to have been a prize to the Argo, and that the Argo was a friend? This would undoubtedly have been a tata culpa, an evident trefpafs, to call it by no harfher name.
If he did not, then 2dly, Whether he was guilty of fuch groʃe negligence "(craʃʃa negligentia) as by law will make him refponfible to the Appellants, confidering the relation between them as owners and matter of a veffel ?
As to the 1ft point, the evidence is not fo fatisfactory as might be wifhed in a cafe of fuch confequence to the parties. Had there been evidence given refpecting the credit of the feveral witneffes, the matter would have been clearer. It Davis and Groves are to be credited, in addition to the other evidence, there is a very ftrong prefumption indeed, that the Refpondent is guilty of a great wrong, of a clear trefpafs ; for if he faw the fight on the 6rh as he next day found that the Betʃey, which had been captured, was an enemy, he muft have concluded, that the Argo was a ƒriend. And in all that the other witneffes fwear in behalf of the Refpondent, is true, yet I do not think, that the evidence of Davis and Groves is thereby invalidated. With refpect to hours or times, in which particular occurrences or tranfactions happened, witneffes or the greateft in-
[♦]See Ant. 95.
