Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 11 February 1685
Daniel Nicolson v. Gilbert Fife
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Daniel Nicolson, writer in Edinburgh, against Gilbert Fife, merchant, and late bailie there, is reported by Harcus. The case was: Major Robert Johnston and Gilbert Fife having made a vendition and excambion of their shares in two frigates; and the privateer, of which Fife promised to give Johnston a 16th part, having gone to sea, and brought in a rich prize, Johnston pursued him before the Commissaries of Edinburgh, for his share of the said prize, and refers the agreement to his oath. Fife depones, That he had offered him a 16th part of that ship before it went out, but he refused it. The Commissaries found this quality of the refusing extrinsic, and therefore decerned. Fife suspending this, he Alleged,—It was never a completed bargain; and that Johnston would never have owned nor claimed the said frigate, had she not brought up that prize; and, having been at no expense on the out-reik, dolus proprius nemini debet prodesse.
The Lords found, in respect the promise was made by Gilbert Fife in favours of Johnston, that, except Daniel Nicolson, who is now Johnston's assignee, will instruct, scripto vel juramento, that Johnston did require Fife to make him a right to that part of the ship before it went out, he had no right to any share of the prize brought in; and therefore suspended the letters simpliciter. For they thought it hard that Gilbert Fife should be bound, when there was no document nor vestige whereupon Major Johnston's acceptation of the bargain could be fixed upon him; so that, if a prize had not come up, he might have refused to accept from George Fife the 16th part of that frigate; unless it could be proven to have been unicus contextus of a complex bargain.
Then the Lords, by a deliverance, on a bill of the 21st of February, ordained Fife to depone if Johnston out-reiked the frigate, or if he ever desired to do it, whereby he intimated that he looked upon it as his.
