Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Thomas Wylie, Merchant in Edinburgh, v. Walter Chiesly, there
Date: 23 February 1694
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Thomas Wylie, merchant in Edinburgh, against Walter Chiesly, there, for paying his proportion of the gross averages he had, been decerned in by the Admiral Court of Roan, at the ship-master's instance, for reparations of the ship after it was disabled by a storm at sea; and Mr Chiesly being an owner, as well as he, his share came to £100 Scots.
Alleged,—You cannot recur against him, because you lost the cause ex propria culpa, in so far as you omitted to propone an obvious defence,—viz. that, by Lewis XlVth's laws of the marine, the owners are not liable, if the skipper do not pursue for his damages within four months; and this was after that time.
Answered by Thomas Wylie,—I could do no more but establish an advocate to plead for me; and, if he has omitted a defence, I am not to blame, who knew neither the French laws nor customs.
The Lords remembered, that competent and omitted is a peculiar municipal custom; and, therefore, in reclaiming of prize ships, condemned by the admiral, they never used to debar strangers by that exception of its being competent and omitted, because they might justly be ignorant of it, and were only to be judged secundum jus gentium; and, therefore, in this case, found Thomas Wylie was not to blame, and that he ought to have his relief against this defender pro tanto.
