oƒ Marque. Upon the 6th and 7th of the same month, the transaction happened which gave rise to the present dispute. William Davis, a passenger on board the Patty, says that on the 7th, about ten o'clock, A.M. he heard a firing, and saw two vessels engaged in battle, and that at the time, the three brigs, the Patty, Achillas, and Hibernia, were within hail of each other. This firing, if every heard on board the Patty, or the battle seen, must have been on the sixth, and not on the seventh. He adds, that he verily believes that the two other brigs heard the firing also.
In opposition to this evidence, let us contrast the testimony of James Leach, the captain, and John Russel the mate, on board the Betsey. They both swore, that, at the time the Betsey was captured, there was no other vessel in fight but the Argo; and they add, that they verily believe, no person did see any other vessel. If they were in sight of Davis, Davis must also have been in sight of them ; and the firm belief of Leach and Russel, that no vessel was in sight, is at least equal in point of proof, to the firm belief of Davis, that the Hibernia and Achilles saw the engagement. It is remarkable too, that Davis says, thatAngus has his boat holsted out, in which he is contradicted by all the other witnesses, and appears to be under a great mistake.
But I shall wave any further observations on this point ; for, though it should be admitted that Davis, and those on board the Patty, heard the firing and saw the chase, it cannot thence be inferred, that those on boar the Hibernia did, especially as they swore that they did not. Inattention, noise and a variety of other causes, might prevent the people on board one vessel, from seeing or hearing what those on board another vessel, did see and near.
It appears to one, therefore, highly probable, from the evidence before the Court, that Angus did not on the 6th, see the taking of the Betsey. His conduct on the 7th, when he came up to the other captains, strongly confirms this idea. For no less than six witnesses out of the seven, who were present when Angus came up (that is, every witness except Davis) expressly mention, that Angus enquired what they had got ; and upon being told fhe was a good prize, he replied, if she is a good prize, so must the stoop be: and that he further asked, why one of their last-failing vessels did not chase her ; upon which they ordered him to pursue her, which he immediately did.
Now, it is in full proof, from the evidence of Captain Talbot, that the two other brigs had been up with the Betsey about an hour before Angus came up, and that their boats had frequently passed to and from the Betsey. They, therefore, had full information; but Angus had not the least knowledge, except what he received from their declaration, that she was a good prize. If then she had been a good prize, of which he had not, at that time, the least reason to doubt, well might he reply, that the other vessel,
