No exception will be sustained unless proponed at Litiscontestation.
Workman v. Young
Date: 12 December 1699 Case No. No 49.
Where a sailor sued his master for wages, and the master, in his oath on reference, adjected an allegation of undutiful service. This was found extrinsic. Action for damages was reserved to him.
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Robert Workman pursues John Young, skipper, on this ground, that he having hired him to be one of the sailors of his ship in a voyage to Bourdeaux, he now refused to pay him his wages; and both the service and quota of his fees being referred to the Master's oath, he acknowledged the same, but deponed he had served him most unfaithfully and undutifully, and condescended that he had embezzled the wines on board, and drawn some of them, and hid it in his bed, and had made sundry of the crew to mutiny and carry in the ship to Orkney. The question, at advising, arose, whether these qualities adjected were intrinsic, or behoved to be otherwise proved; for as to the wines, all the mariners did so, and it was the merchant's and not the skipper's loss; and as to his being rebellious and disobedient, he might have turned him off at the first port they came to: But others thought there was a difference betwixt a mariner and an apprentice, or a servant at land, who may be turned off at pleasure; but a captain of a ship may be necessitated to retain even contumacious sailors, wanting hands to navigate his ship without them. It was further alleged, That the mariners going ashore without their master's consent, and sleeping a night there, inferred the forfeiture of their wages, and sundry other penalties. The Lords decerned for the wages confessed, and found the qualities extrinsic, reserving the Master's action for liquidating his damage against this pursuer, as accords, upon his malversations.
Fol. Dic. v. 2. p. 299. Fountainhall, v. 2. p. 72.
