Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Lowrie
v.
Angus

Date: 5 December 1676

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[See page 208.]

The process betwixt the parties being discussed, and observed upon the 14th day of November last, yet being heard and reported again, the charger Alleged that it was the custom of all provident skippers to have a pump-stelling covered with pitched canvas, to guard against the spouting of the pump; which was wanting in this ship, and therefore the damage sustained by the charger was through his fault: neither is there any cause condescended upon, whereby the ship or pump became leaky, which could not be foreseen at the loosing, conform to the former interlocutor; and, therefore, the charger craved his allegeance to be admitted to his probation; specially seeing the skipper's witnesses were to be his own seamen, and it would be of dangerous consequence if the spoiling of merchants' goods might be evacuated by such probations.

The Lords would prefer neither party to the probation; but, before answer to the relevancy, allowed either party to adduce witnesses, what the custom of skippers to secure their pumps was, and what was the cause of this pump's becoming leaky or spouting, or if there was any storm or stress of weather in the voyage.

Vol. II, Page 471.