A partner in a ship having freighted her on a dangerous voyage without the consent of the other partner, and ship being lost, he was not found liable to his partner in her value.
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There being a bark belonging to John Swyne and William Abernethy, John pursues for the half of the value of the bark. It was alleged for Abernethy, that he had freighted the bark to Zetland five or six years ago with the Laird of Bawhillie, and in-put therein a sufficient skipper; but that the bark had never been heard of since, and that Bawhillie who was therein, was holden and reputed perished, and his son entered heir to him. It was replied, That both parties being partners in the bark, it was an unwarrantable deed for Abernethy, without consent of his party, to in-put a skipper; for, if the partner had been advised with, he might have refused, either upon the account of the danger of the voyage, or insufficiency of the skipper.
The Lords found Abernethy's defence relevant, and that albeit he could not unwarrantably freight the ship without consent, yet being done, it could not import the making up of the bark, which had perished by accident, seeing it was offered to be proven the skipper was sufficient, and had gone greater voyages.
