Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Francis Arneill v. Jo Ker.
Date: 10 December 1663
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Francis Arneill, merchant in Edinburgh, one of the owners of the good ship called Peter of Prestonpans, inputs and constitutes Jo. Ker, in Pans, their skipper and master thereof, to carry over in it some soldiers to Hamburg. At Leith, he (Arneill) buys 2000 weight of white biscuit for L.220 Scots; 500 lbs. weight of butter, L.135; 5 tons of drinking beer, with cask, L.150; 2 barrels of beef, L.26; 2 barrels of Lews herring, L.24; 104 lbs. weight of tobacco, L.52; 3 bolls oat meal, L.15; 22 pints of strong waters, L.24; amounting in all to L.546; and puts it therein. In anno, 1656, (which was the time of Cromwell's war with the Hollanders,) this ship, coming back from Hamburgh, is taken by Captain Adrian Coats, and sold by him to Robert Fyfe and Jo. Delang, indwellers in Stravanger, and David Davidsone, in Copperwick, in Norway. Jo. Ker, skipper, coming home, by his ticket grants all these provisions to have been undisposed of, in the said ship (the 22 pints of strong waters only excepted,) even at their coming from Hamburgh, and of their taking; and binds and obliges him, betwixt the date of thir presents and August 1658, to procure and purchase testificates under the hand of the said Captain Adrian, or his lieutenant or skipper, or some inferior officer of the said ship, or under the hands of those above mentioned that bought it, that the said victual and goods were in the said ship the time of her taking; or else, in case of failyie, to refund to the said Francis the prices mentioned in the particular account above written. This the skipper failyied to do: whereupon the merchant pursues him for to make payment to him of the prices of the said goods, conform to his ticket.
Alleged for the defender,—No process can be granted at this pursuer's instance, against the defender, for the 22 pints of strong waters, because the defender's bond or ticket libelled upon does not acknowledge the same.
Replied,—That he was content to restrict his summons to the goods contained in the said ticket.
Alleges, 2do,— No process yet; because [the defender] offers to prove that the goods above written were taken out of the said ship, as she was coming from Hamburgh; and that by testificates under the hands of the parties mentioned in the ticket. Which allegeance the Lords found relevant, and assigned him a day for proving the same. At which day, he failyieing, the term is circumduced against him, and decreet given forth, ordaining the said Jo. Ker to make payment of the prices of the said good, as is contained in the pursuer's account homologated by him.
Act. Mr. William Hog.Alt. Mr. Robert Deans.
Signet MS. No. 30, folio 10.
