they act in conjunction with others on a cruising voyage. I perceive neither crassa negligentia, nor lata culpa in his behaviour ; and I take the law to be, as stated in 4 Burr. 2060, that he is not answerable unless in those two cases. It is preposterous to say, that he ought not to have credited Prole and Thompson, when he was ordered to join with them on a cruise. Hard is the doctrine, that a servant, who apparently acts in the best manner for the interests of his master, should be liable for unavoidable failures, especially when they originate, not in himself, but in others : It is sufficient to deter all men from accepting a trust.
This authority to cruise with Prole and Thompson, certainly means something : but, if it will not justify Angus's conduct on this occasion, it is totally insignificant and void ; and an authority to cruise with others, is an authority to do nothing ; that is, no authority at all.
However dispofed to concur with my Brethren in this cause, I have not been able to do. Unanimity in Courts of Justice, though a very desireable object, ought never to be attained at the expence of sacrificing the judgment.
Upon the whole, as it appears to me, that Angus did not combine with the other Captains to take the Betʃey out of the possession of the Argo ; and that he acted such a part, as he thought would promote the interests of his owners; my opinion is, that the decree of the lower Court should be affirmed: But a majority of this Court entertaining different sentiments, it must nevertheless be reversed.
THE END.
