# Purviance v. Angus

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HIGH COURT of ERRORS and
APPEALS of Pennʃylvania :
PURVIANCE et al. verʃus ANGUS.
T
M‘KEAN, Chieƒ Juʃtice.– I will ftate the cafe as it appear before the Court from the proceedings, and the evidence, which are not controverted on either fide ; and fhall then taken notice of thofe points which have been difputed.
The Appellants on the 28th day of Auguʃt 1779, were owners of a Brigantine, called the Hibernia, then riding at anchor in the port of Philadelphia, and appointed the Refpondent mafter and commander, on a voyage from thence to Oratavia in the ifland of Tenefiƒƒe having a commiffion as a Letter of Mart and Reprifal. The owners, in the failing orders then delivered to the Refpondent, (among other things) ‘‘ advifed him to keep company with the armed veffels bond to the Eaftward as far as he ʃhould think it prudent ; and that fhould they agree to cruize two or three weeks on the coaft, he had their approbation in joining with them.’’ The Refpondent failed on his intended voyage, and in the river Delaware joined ​
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the Brigantine Achilles, whereof George Thompʃon was mafter, and the Patty ; whereof John Prole was mafter, each having a commiffion of Letter of Marc ; and about the 1ft of September following they proceeded to fea in company, ftanding to the Eaftward.
On the 6th of September in the forenoon a firing of cannon was heard by people on board the Achilles and Patty and in the afternoon the Achilles and Patty had altered their courʃe, and, being fwifter failors than the Hibernia, left her at fome diftance ; they then waited for her, and when fhe came up, fhe inquired the reafon of their altering their courfe, and was informed, that they had feen two fail and given them chafe. At this time the two veffels were not in fight, the Achilles and Patty having waited for the Hibernia until they were loft : They are three then continued the fame courfe until the morning , when at day light two veffels were defcried, lying cloʃe together, by each of the mafters of the three Brigantines, who forthwith made towards them ; and the Achilles and Patty, after firing a few guns, took poffeffion of a Brigantine, called the Betʃey, which had been a Britiʃh veffel, bound from Montʃerrat for New-York, (which places were then poffeffed by the Enemy) and was captured the day beƒore by the Argo ʃloop oƒ war belonging to the United States, Silas Talbot, Eʃquire, Commander. At this juncture the Hibernia was a few miles aftern of the other Brigantines, and when fhe came up, the Refpondent afked, “what veffel they had brought too ?” and was anfwered, “a Brig from Montʃerrat bound for New-York ; a good prize.” In confequence of fome converfation with the Captains of the two other veffels, the Refpondent failed in purfuit of the Argo, then in fight, and did not rejoin them, until near the fun-fett, when a boat came along the Patty, and afked for men to affift in navigating the Betʃey into fome port : The Refpondent immediately put two men into the boat, and figned Orders for William M‘Neil, who had been appointed Prize-mafter, which contained thefe words, “ to get her if poffible into Delaware, Egg-harbour, or Cheʃpeak, ƒor ƒear oƒ the SLOOP Argo falling in with you, if you go to New-England ; ” and “beg of M‘Neil to ftand to the Southward this night and ftrive hard for Philadelphia.” Thefe orders are dated “the 7th September 1779, at fea on board the Brigantine Patty,” and were figned firft by John Prole and George Thompʃon. So far the facts are agreed.
Mr. William Davis, who was a paffenger on board the Patty, fwears, ‘‘ that he verily believes the firing of cannon on the 6th about ten o'clock in the forenoon, was heard on board the Hibernia, and that the people on board each of the three brigs faw two veffels engaged in fight, for that he heard and faw them diftinctly ; that the three lay becalmed within hale of each other, that the Argo and Betʃley were then about there leagues diftant from the three Brigs, and that the firing continued more than an hour. ’’ He further is pofitive, that the Refpondent and Prole and Thompʃon had a confultation, in his prefence, about the brig Betʃey, whether fhe was prize ​
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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 ​
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integrity may and often do differ : This has happened in the caufe before us. But as to other matters, the witneffes on board the Hibernia only fwear, ‘‘ that they did not fee nor hear, what the others fay, they did.’’ The rule in fuch a cafe is, ‘‘ that one affirmative witnefs countervails the proofs of many negative, becaufe both may fwear true, ’’ and fuch interpretation fhould be put on the whole teftimony, as to reconcile it ; for, one may fee and hear what another does not. Gilb. Law oƒ Evidence 157. However, it does not appear neceffary to determine this firft point, as the fecond queftion admits of little difficulty, viz. Whether the Refpondent has been guilty of fuch groʃs negligence as fhould make him refponfible?
The Refpondent was near to the Betʃley, as well as the two other Letters oƒ Marque : he might have gone on board her, and made every neceffary and proper inquiry ; he fent two of his crew on board her, to get her if poffible into Delaware &c. he figned the order to M‘Neil the Prize-mafter, which muft have fhewn, to perfect conviction, that the Betʃey had been captured by the Argos, and that fhe was a ƒriend. But it is faid, that he confided in Prole, whom they had made Commodors, and and in Thompʃon that they deceived him ; and that he figned the orders to the Prize-mafter without reading them ; and, in fhort, that he implicity obeyed, and did whatever he was told to do. The Refpondent fhould have reflected, that the feizing a valuable veffel and cargo was a ferious piece of bufinefs, if belonging to a friend ; he fhould therefore have weighed the confequences of his credulity in others ; he could have inquired for himfelf, and had the fame evidence with Prole and Thompʃon ; he fhould have confidered, that his owners placed their confidence in him, and in no other ; he fhould have acted for himfelt, and taken care that he did not injury to any one. But he does not appear, by the defence made for him, to have exercifed his own judgment at all. Was this ufing proper care and diligence, or was it inexcufable conduct, and grofs negligence?
Let us now confider the law upon this evidence ; for, ex ƒacto oritur lex. It is agreed, that every one of the parties to a trefpafs, who participates in it, is a trefpaffer, and an action will lie againft him as a principal ; for, there can be no acceffary to a trefpafs : Bro. treʃpaʃs, pl. 113. 1 Lev. 124. that a trefpafs was committed in taking and carrying away the Betʃey from the Commander of the Argo ; that the Refpondent was prefent, aiding and affifting in the taking and carrying her away : and that Captain Silas Talbot could have maintained his fuit againft the Refpondent, as well as againft his owners, for the wrong and injury they have done to him. But, it is contended, that though he might be refponfible to Captain Talbot, he is not fo to his owners, for that his relation with them was by contract, and the contract between a fervant and his mafter, or between a Captain of a fhip and his Owners, points out the meafure of the Servant's or Captain's refponfibility ; that he ought not to be accountable in damages for an error in judgment, but only for the ƒault oƒ the heart, and that he acted according to the ​
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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 (illegible text), 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 ​
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a wrong done to another. Reafonable care, attention, prudence and fidelity, are expected from the mafter of a fhip, and if any miffortune or mifchief enfues from the want of them, either in himfelf or his mariners, he is refponfible in a civil action. And it muft appear very ftrange to any underftanding, that the owners of a veffel fhould be anfwerable in damages for the mifconduct of the mafter, merely becaufe they appointed him mafter, and that the mafter, the actual malfeazor, fhould not be accountable over to them ; that the innocent fhould fuffer, and the guilty perfon go fcut-free. We know of no fuch law.
Upon the whole, THE COURT, are of opinion, that the fentence of the Court of Admiralty be reverfed ; and this Court do decree and adjudge, that the refpondent do pay to the Appellants of the Sum of Ł . 3,795. 3.6. and the intereft thereof from the 22d day of January 1785, together with the cofts by them paid in the former caufe by Siles Talbot qui tam, againft them and others, and alfo the cofts of this fuit in the Inferior Court, and that each party fhall pay their own cofts in this Court, the fame to be taxed by the Regifter, or this Court.
The Counfel for the Refpondent afterwards moved the Court for a re-hearing upon a fuggeftion of new evidence &c. and upon that occaftion, Judge SHIPPEN made the following obfervations : —
SHIIPEN, Juʃtice :– When his Court delivered their decree that the Refpondent fhould pay to the Appellants the Sum of Ł . 3,795. 3.6. they eftimated the damages by what they conceived to be the value of the Veffel and Cargo, having then, I believe, no doubt but that the lofs fuftained was the proper uncafure of damages. The conduct of the Refpondent, though certainly unjuftifiable, appeared from the evidence to be attended with fuch favorable circumftances, that if the idea had been entertained that the damages were difcretionary, and could have been legally diminfhed, I, as one of the Court, fhould certainly have given my voice for a much lefs fum. Whether the Court had, or had not, fuch a difcretionary power, was not made a queftion on the hearing, but has fince occured to me ; and having met with a cafe which goes a great way towards eftablifhing the principle, I fhould be willing to have the cafe re-heard as to this point. The cafe I allude, to, is that of Raʃel v. Palmer in 2 Wils. 325. which was a fpecial action on the cafe againft an Attorney for negligence, in not charging the Defendant in execution within two terms after the judgment, whereby the Plaintiff loft his debt, the Defendant having obtained a Superʃedeent agreeably to a rule of the Court of Kings Bench, and had been difcharged out of cuftody. On the trial of the caufe before the Land Cambden a verdict was given for the plaintiff for Ł . 3000, the whole debt, by the Chief Juftice's direction. But, afterwards, on a motion for a new trial, the Chief Juftice himfelf and the reft of the Court were of opinion, that he had mifdirected the Jury in telling him, that they ought to find a verdict for the ​
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whole debt, whereas the action, ʃounding merely in damages, the Jury ought to have been left at liberty to find what damages they thought fit. Accordingly a new trail was ordered, and on the fecond trail the Jury were told, that they might find what damages they pleafed, and, on fome favorable circumftances appearing for the Defendant, they found only Ł. 500. in damages.
The fimilarity of this cafe with that before the Court, inclines me ftrongly to admit a re-hearing of the caufe as to this point, whether, if the Court fhould be of opinion that the Refpondent is anfwerable on the point of grofs negligence, they are bound to eftimate the damages by the real lofs, or whether they may not mitigate them, according to the circumftances, and degree of negligence in the Refpondent.
the court, on confideration, directed a re-hearing as to this point only ; and, after argument, reducing the damages, they gave the following judgment:
The court do award, that the Refpondent do pay to the Appellants the fum of Ł.948. 15. 10. 1-2. and the intereft thereof from the 22d day of January 1785, together with the fourth pact of the cofts by them paid in the former caufe by Silas Talbot qui tam againft them and others ; and alfo the cofts of this fuit in the Interior Court ; and that each party pay their own cofts in this court ; the whole of the aforefaid intereft and cofts to be taxed by the Regifter, or this Court.