That a person sold the articles of a ship belonging to another, allowed to be proved by witnesses.
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Captain Bood, Captain of one of his Majesty's frigates, pursues George Strachan, who had commanded that frigate for a time, and was sent a voyage therewith, from Brassie Sound to London, to restore a part of the out-reik of the ship, which he had not delivered, but had excepted in his discharge as being worn, stolen, or lost; and now it was offered to be proved, that he sold and disponed upon the same particulars he so reserved. The defender alleged, Absolvitor from such particulars as he condescended upon, because he did ware out a considerable sum of money for repairing the out-reik, and necessaries to the ship during the voyage, for which, in case of necessity, he might have sold a part of the out-reik. 2do, Albeit he might not have sold the same, yet he may retain, or compense the price thereof, with what he wared out necessarily and profitably for the out-reik of the ship. 3tio, He offered him to prove, that such parts of the out-reik in question as he should condescend upon, were worn and stolen, which being his defence, he ought to be preferred in the probation unto the pursuer, who ought to have no other probation against him, being a person intrusted, but his own oath, much less a contrary probation by witnesses, that they were not lost, but disposed upon by the defender.
The Lords repelled the first and second defences; and found, That albeit the Captain might have hypothecated his ship or out-reik for the necessary expenses wared upon her, yet that he could not sell the same, and that de facto he did not sell the same; because the pursuer offered to prove he sold them at Leith after his return, and found the same probable by witnesses, and preferred the pursuer in probation thereof; and in respect of so unwarrantable a way of disposing, they would neither allow retention nor compensation, but left the defender to make his application to the Exchequer for his payment.
