Scottish Court of Session Decisions

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

Calderwood
v.
Angus

Date: 14 February 1678

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By charter-party, James Angus became obliged to carry a loading from Leith to Burdeaux, for David Calderwood, with all convenient diligence: whereupon Calderwood pursues Angus before the Admiral for damage upon his delay, and failing in implement of his contract; offering to prove, that he had loaded the ship, by the 20th day of December, with herring and other goods;—that he had often desired the skipper to sail, the wind being fair; and that he came from his own house, from Edinburgh to Leith, and staid in the defender's house, being to go aboard himself: and that, upon the 2d day of January, he took protest against the skipper for damage, by the loss of his market, especially the herring; which, if they were not landed before Lent, would lose the market.

The defender answered, That, after the protest, he had used all diligence, and made sail the next day, but was stopped by storm until the 13th day of January, when the pursuer left him, and cited him before the Admiral. Which defence the Admiral thought relevant.

Whereupon the pursuer raised advocation on these reasons: first, That the Admiral did wrong, in not sustaining the libel upon the delay before the protest; for though protest may be taken ad majorem evidentiam, yet the defender was in mora et culpa in not using diligence, when he was first required and when other ships went out. 2do. That he ought to prefer the pursuer to the probation that the wind was fair; at least given a conjunct probation as to the wind and weather.

The defender answered, that, in this contract, there being no term nor lydays, ubi dies interpellat pro homine, he was not in mora until interpellation; which overly words cannot infer, but must be solemn by instrument. Neither was it competent to the Admiral to give a conjunct probation, which was only ex nobili officio. And that there was a storm, is much more positive and pregnant than the being of fair weather.

The Lords found, that interpellation was requisite by instrument, and found no delay till then: and found that the Admiral did no wrong therein, or in sustaining the defence: And therefore remitted the cause.

Vol. II, Page 613.