Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Captain Gordon and his Owners
v.
Cornelius Jansonskie, Skipper of the Wine-Grape

Date: 16 December 1674

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In a reduction of a decreet, pronounced by the Admiral-depute, for assoilyieing the ship called the Wine-Grape, as not being lawful prize, but did truly belong to Swedish subjects, upon these reasons, That, first, the passes and documents found aboard the ship were false, and not conform to the formula required by the Swedish treaty; in so far as, that the skipper, having been born a Hollander, and the most part of the company being Hollanders, there was found aboard of his ship a pass, bearing, that the skipper did compear and make faith that the ship and loading belong to Swedish subjects; whereas, being examined upon oath, he did acknowledge, that he was neither present nor made faith when that pass was granted and subscribed by the College of Commerce; likeas, several of the company being examined, did depone contrary to the skipper's deposition, viz. that a part of the ship did belong to Abraham Cranstoun, as owner of the half thereof; whereas the skipper had deponed that the ship did belong to one Abraham Volters; and thereby concluded, that, by his Majesty's express instructions, the pass, being simulate and false, was per se relevant to condemn the ship as lawful prize. The second reason was, that the ship was built in Holland, and, since the war, navigated by the skipper, who was a Hollander, and did contribute to the wars against the King; and did bear scot and lot with the Holland subjects, and that the most part of the company were Hollanders.

It being answered, That the admiral's decreet could not be reduced upon these grounds; because, albeit the ship was built in Holland, and the skipper a Hollander, yet they offered to prove quod muiavit domicilium, and had become a true Swedish subject before the capture, by bringing his wife and family there.

To the which it being replied, That any change or transporting of his family was only simulate, and that, albeit his wife went with him in that ship to Sweden, before he was taken, yet that she was there only as a stranger, and had no house nor family, and did come back with him from Stockholm to Elsinure, which is in Denmark:

It being answered, That albeit his wife came back to Elsinure, yet it was in order for her going to Hamburgh for craving-in her husband's debts; and so could not take from him the benefit of that allegeance that mutavit domicilium, and was a Swedish subject before he was made prize:—

The Lords, having seriously considered this debate, did grant commission to the magistrates of Stockholm to examine the matter of fact for both parties, upon such interrogatories as were then condescended upon, for clearing that the skipper had truly changed his domicile, and transported his family, before he was made prize, or if the mutation and transporting of his family was only simulate or coloured; as likewise, upon such interrogatories as might clear that the skipper was truly made a Swedish subject, or that the ship or goods did truly belong to Swedish subjects.

The report being returned, and parties heard, it was alleged, by the captain of the privateer and his owners, that no respect ought to be had to the report of the magistrates of Stockholm; because they had been most partial in executing the commission sent to them; in so far as Matthew Colvill, having a commission from the privateer and his owners, having been shipwrecked when he went to Stockholm upon that account, which kept him from being present at the day appointed, he having escaped that danger, did obtain a new commission for examining such witnesses as he should adduce to clearing the simulation and falsehood of the mutation of the skipper's domicile, and that the property of the ship and goods did belong to Swedish subjects; which commission being offered by him to the magistrates of Stockholm, they altogether refused to execute the same, by examining, de novo, the witnesses who had already deponed, or any new witnesses that he offered to adduce for clearing these allegeances of simulation and falsehood; whereupon he did take instruments, and, before a public notary, caused several witnesses depone upon oath; which he craved might be advised, and sentence accordingly pronounced; and thereupon the admiral's decreet reduced; and the ship declared lawful prize.

This debate, and state of the process, being considered by the Lords, they were much divided in their judgments and votes; many being of opinion, that, in form of process, there could be no decreet upon the report from the magistrates of Stockholm, who had been most partial in refusing to execute the last commission sent to them by Matthew Colvill, as being most just and necessary, seeing he was hindered to be present by storm of weather, and was shipbroken; and therefore, they being suspected that a new commission might be granted to Holland or Hamburgh, or any unsuspected judges, where the truth and verity of the allegeances foresaid, proponed for both parties, by the depositions of witnesses of both parties, might be tried. But many of the Lords being of another opinion, that, without any farther probation or commission, the reasons of reduction of the decreet or the admiral being sufficient in law to have made her lawful prize, seeing the skipper and company did depone upon oath contrary to the pass and documents produced—it was carried, by one vote, That the admiral's decreet should be reduced, and the ship declared lawfulprize: Which was hard, there being litiscontestation in the cause, act and commission extracted for proving the allegeances for both parties; so that, in form of process, no decreet ought to have been pronounced for either party, but upon the advising of the depositions of the witnesses; and finding, that they who had been most pregnant and fully proven ought to have had decreet pronounced in their favour.

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