Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Guildman v. Joshua Smieton, Skipper in Dundee
Date: 21 November 1694
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The Lords reponed the skipper against the decreet; because, though it bore compearance, yet it mentioned no mandate the procurator had; in which case he could not refer to the pursuer's oath that he had received the bag of spice, seeing it was incumbent on the pursuer to have proven his intromission with it. And what moved the Lords, was, that he had been silent for several months after the entry, and had not intimated to the skipper that he wanted it, and never reclaimed till the skipper was seeking his freight: but found, he might yet prove, that, after the entry of the goods, he required the skipper, by way of instrument, to hold count to him for that bag of pepper; or else, by the skipper's oath, that it was never delivered. For, though the bill of loading did bind it on the master, yet it bore, “quality not known;” and, having delivered the goods in gross, and in cask, it might have been wrapt up therein; and, after he missed it, he should immediately have required it.
Some thought, if the parties had objected it, the bailies of Dundee were not competent judges to such a maritime cause, but only the Court of Admiralty; and others doubted if they could prorogate the jurisdiction by consent.
