Thomas et al. v. Osborn.
remained on shore, and sent the vessel upon different voyages under the command of an agent appointed by him, did not of itself displace him; he was still master of the barque, with all the powers and responsibilities which are attached to that character. And if the fact that he remained on shore did not deprive him of his official character, the circumstance that he was engaged during that time in commercial pursuits cannot alter the case. It cannot make any difference, in this respect, whether he remained idle or employed himself in any particular pursuit.
But it is said that Leach was not only absent from the barque, but he was employing her in violation of the orders of the owners, who disapproved of his conduct, and had directed him to bring the vessel home, and that Loring & Co. knew it, and yet encouraged and enabled him to go on in the violation of his duty, by large advances of money. And it is insisted, that as Loring & Co. were aiding and encouraging him in this breach of duty, and the supplies in question were furnished to enable him to persevere in it, they were furnished in bad faith to the owners; and in a court of admiralty, acting upon equitable principles, can create no obligation upon them, nor any lien upon their vessel.
If the facts assumed were established by the testimony, I should not dispute the law as above stated. But I think the fact that the owners disapproved of his remaining on shore, and engaging in mercantile pursuits, is not only not established, but, on the contrary, the weight of the testimony is on the other side, and, notwithstanding the evasive and ambiguous answers of Leach, tends strongly to prove that his conduct in this respect met their approbation.
In examining the testimony in relation to this question of fact, it is necessary, in order to see the force to which it is entitled, to state it more minutely than I have done in the preceding part of this opinion, and to note particularly the dates as given by the witness.
The disapproval of the appellants is brought out by the following question, put by the appellants, the owners:
“Was your remaining in the Pacific and trading with the Laura done with the consent and approval of the owners?”
To this question Leach simply answers, “No, sir.”
Upon the cross-examination upon behalf of the libellants, the following interrogatories were put to him, to which he gave the following answers:
Question. “When was their (the owners) dissent made known to you?”
