A vessel found prize, because the King's enemies were part owners, although the society was contracted before the war.
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Captain Buchanan having taken the ship called the Golden Falcon, she was adjudged prize by the Admiral. The Strangers raise reduction. The captain insisted on these grounds, 1mo, That it was proven by the skipper's oath, that two sixteenth parts, and a half sixteenth part of the ship belonging to merchants in Amsterdam, whereby the whole ship and loading became confiscated; 2do, It is also proven by his oath, that when the captain pursued to take the ship, one of the company, with other two persons, fled out in a cock-boat with a chest to land, which is an evident presumption, that in or with the chest there were concealed documents carried away, which is much more than the burning or throwing papers overboard; and it must be presumed that there have been enemies' goods in the boat or chest, otherwise these persons would not have fled; 3tio, The ship was insured in Holland, and so the risk lay upon the King's enemies. It was answered for the Strangers, to the first, That there was a communion of this ship betwixt the Danes and some merchants in Amsterdam before the war, and that the ship loosed from Bergen in February 1672, towards Amsterdam, and loosed thence in July 1672, and was taken in the return, so that the skipper had no power or warrant from his owners in Norway to dissolve the society; and though a part of a ship belonging to enemies, by a society contracted after the war, could confiscate the whole ship, yet the society being contracted before, there is no obligation, nor was there any opportunity, to dissolve it; and as to the insurance, it doth not change the property, and state it in the insurer, but is only a personal obligement upon him to make up the hazard, upon which pretext the King cannot justly confiscate the property of his allies, because they have taken warrandice of his enemies; and that the allies remain proprietors is clear, that in case of stress of weather they might throw out the loading.
The Lords found the ship and loading prize, because a part of the ship belonged to the King's enemies, albeit before the war, seeing there was opportunity to dissolve the society, by selling or rouping of the ship, the time she was at Amsterdam, where the Holland partners lived. They found also the second ground sufficient by itself, that three persons went out of the ship in a boat with a chest therein, and went to land in the time they were pursued by the privateer; but the Lords had no need, and were not clear, to determine the ship prize upon the insurance.
