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Captain Gordon, a privateer, having taken a ship named the Wine-Grape, and brought the same to Leith, it was found a free ship, and not a prize, by a decreet absolvitor of the Admiral; in respect it appeared, by the pass and other documents, and the declaration of the company and skipper, that it was a Swedish ship; and albeit the skipper was a Hollander, yet he was received burgess of Stockholm, and, since the war, he had transported his domicile there. This decreet being questioned by a reduction before the Lords, upon that reason, that the Admiral had committed iniquity in giving the said absolvitor, in regard the said ship was not a free ship; and it did appear, from the declarations of the skipper and company, that the skipper was a Hollander, and a partner of an eighth part of the said ship. And, after a long debate, the Lords granted a commission to the Magistrates of Stockholm in Sweden to examine such witnesses as either party should desire, for clearing the point of fact, and to examine the Swedes that were alleged to have interest in the said ship and loading, and the skipper's wife, who was then at Stockholm; and divers persons and witnesses being examined upon the said commission, at the instance of the skipper and defenders in the reduction; and a report being returned, and advised; the Lords, in July last, did find, That the said report was a sufficient presumptive probation that the skipper had fixed his domicile at Stockholm, and that the ship and goods were free, and did not belong to the King's enemies; the Swedes, by the treaty betwixt Sweden and our King, being allowed to make use of Hollanders to be naucleri and skippers, dummodo sint cives et incolæ; and therefore decerned; superseding the extracting of the decreet until September; and if the pursuers should shew that they had done diligence upon the said commission, the Lords declared they would grant a new commission.
And thereafter, an agent, Matthew Colvil, having gone to Stockholm, in behalf of and for the pursuer the privateer, and having urged, that some witnesses should be examined by the Magistrates there upon the points contained in the former commission, upon that consideration, that no person, was present for the privateer when the witnesses were examined at the instance of the defenders, and it was not the pursuer's fault that he was not there himself, or his procurator, seeing the said Mr Colvil going there, and pursuing the said commission, had made shipwreck by the way, and was forced to return back;
The said Magistrates did refuse to proceed upon the said commission to examine the said witnesses, that had been formerly examined, or others, pretending that the commission was executed, and that they had examined both parties and witnesses upon the same; and did write a letter to the Lords, shewing the reasons whereupon they had refused.
This Session, the cause being called in præsentia, the pursuers did object against the said report whereupon the foresaid interlocutor had proceeded; and in special, that the depositions of the witnesses examined at Stockholm were not transmitted, and that they were not so much as named in the report; and that the owners had refused to declare upon that interrogatory, viz. whether their name was only borrowed for the use of the King's enemies, to colour and continue their trade? pretending that they had given their oaths already to that purpose, upon their obtaining of the pass; and it was desired for the pursuers, that the Lords would proceed, without respect to the report and interlocutor foresaid, and advise and give their sentence, whether, upon what was before them, the reason of reduction was proved.
Upon debate among the Lords it was urged, That they had given a decreet already, but the extracting was superseded, (as said is) conditionally, in order to the granting a new commission; and the most that the pursuer could desire, in reason, was, that a new commission should be granted; and all that was before the Lords formerly being advised, and a decreet given thereupon, and the same standing, there was nothing now to be advised; but the decreet ought to be extracted, or, at the most, a new commission should be given to the pursuer.
The Lords, notwithstanding, without respect to the said former decreet, did proceed to advise and vote, whether there was as much proved as to condemn the said ship.
It was urged by some of the Lords, That though res were integra, and there were no decreet, there is no ground to adjudge the said ship upon the pretences foresaid; seeing the skipper's oath, being a party, had been taken upon the same, and he had declared, upon oath, that he had changed his domicile, and his residence was at Stockholm; and his oath being taken, they needed no other probation, specially seeing his oath is adminiculated with the depositions of his wife, and others, taken upon the commission foresaid, at Stockholm, being positive, that he had transported his domicile there, and no other probation is adduced to the contrary.
It was farther urged, That the skipper, being a burgess, and being for the time in Sweden, with his wife and his child, the Swedish owners were in bona fide to think, that he was such a person as, by the treaty, they might make use of as skipper; and whatever could be pretended against him for his own interest, ought not to militate against them.
It was also urged, That his Majesty had written a letter in favours of the strangers, recommending them to the Lords' favour and justice; and it would be thought a strange return, that the Lords should condemn both the said ship, and the Admiral's decreet-absolvitor, and their own former decreet.
It was nevertheless voted, and found by plurality, that the ship ought to be adjudged upon the said pretences, that the king's enemy had the interest foresaid, both as skipper and as owner; divers of the Lords dissenting.
1674, December 23.—The Swedes having given in a bill, desiring that, seeing they offered to prove positive, that the skipper had changed his domicile, they might have a commission to what judges the Lords pleased, for proving the said allegeance, some of the Lords were of opinion, That the allegeance, being unquestionally relevant, was yet competent, in respect the Lords had by their interlocutor found, that they had already proved, presumptively, that the ship in question did not belong to the King's enemies; and as long as that interlocutor stood, they needed not prove any farther, the onus probandi of the contrary lying upon the skipper; and the said interlocutor being since reversed and taken away, (as said is) it was neither needful nor competent until now, to offer to prove positive the said allegeance.
The Lords, notwithstanding, found, by plurality, and by one vote only, That the allegeance not competent; the President being of a contrary opinion, but being carried by one vote before it came to him, he could not vote.
Je me suis estendu trop sur cet arrest, a cause que les plus habiles et scavans des Senateurs opinoyent pour les estrangers, et maistre du navire; et aucuns des ceux qui estoyent de l'autre coste, estoyent parens ou aliez de Luthquharne, qui estoyt partie; et gagnoit par l'arrest 2000 livres Sterl. ou environ; et l'emportoit par une voix seulement.
