after stating the case particularly, delivered his opinion as follows:
I told the jury that the ship having been driven out of her course by stress of weather, the charge of the cargo devolved upon the master, whose duty it was to take proper care of it. In such case, the master has power to sell goods which are damaged or of a perishable nature. But those which are in good condition and not perishable, he has no right to sell without the order of the owners, to whom he is bound to give immediate information. This is a principle, which it is of great importance to support, because it would be of ruinous consequence, if the captain might at his pleasure sacrifice valuable goods, by exposing them to sale at an improper market, especially as there will never be wanting persons, whose interest it is to advise a sale, by which they will be sure to reap considerable profit. But whether the saltpetre in this case, was so much damaged as to render a sale expedient, was a matter which I submitted to the jury, as the turning point of the cause. That it was damaged is certain. So say all the witnesses, both for the plaintiffs and defendant. It is certain also, that after being thrown into bulk and exposed to the sun and air, about ten kegs out of the 230 were lost, and the remainder proved good and merchantable. But the trouble of restoring it to good condition, was taken by the purchaser at St. Thomas, who resold it at a great advance. There is every reason to suppose, that the defendant acted fairly and to the best of his judgment, aided by the advice of respectable persons whom he consulted. It is of some consequence too, that Mr. Per it wrote to his constituents after his arrival at St. Thomas, that the conduct of the defendant had been correct scad judicious. I have no doubt, bpt it would have been more for the plaintiffs’ interest, if the saltpetre had not been sold; but it must be confessed that the defendant stood, in a criti*266cal situation; for if he had stored it, after the report of the surveyors, and the opinion of other intelligent persons in favour of a sale, and then it had been lost by fire or other a9cident, he might have found it difficult to justify his conduct. At any rate the jury having found, that the state of the saltpetre rendered a sale (expedient, it is notone of those cases in which they were so clearly mistaken as to induce the Court to order a new trial. Whether the acceptance of the proceeds of sale -by the plaintiffs was such an affirmance of the defendant’s conduct as would be a bar to this action, even supposing the sale to have been illegally made, it is unnecessary to determine. I am of opinion, that the plaintiffs’ motion for a rule to shew cause, should not be granted.
• Yeates J. and Bb.ackenb.idge J. concurred.Rule refused.