Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Corbet v. William Cochran of Kilmaronock
Date: 8 January 1706
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James Corbet, merchant in Glasgow, charges Mr William Cochran of Kil-maronock, on a bond of £300 sterling, as the price of his twelfth part of a ship sent with a cargo to Guinea, and for £30 sterling as the premium of insurance.
Alleged,—The obligement was conditional, payable only in case the ship should arrive safe in any harbour of Scotland or England; which it never did.
Answered,—That though the obligement was simple, yet he offered to prove, by the communers present at the bargain and communing, that the obligement was in place of the policy of insurance; and though the ship never returned, yet the condition was implemented by the equipollent, in so far as Kilmaronock's supercargo sold the ship in some of the West India plantations, and remitted the price and effects to Scotland; which succeeding loco rei, the ship, in construction of law, returned, and so, the condition being purified, the obligement takes effect.
Replied,—Whatever the Lords may do ex officio nobili, in examining the writer and instrumentaly witnesses present at the time of perfecting and signing of the bargain, yet it is against the known principles of law to take away writ by extrinsic witnesses; which can allenarly be convelled scripto lel juramento of the party in whose favour the writ is conceived: upon which principles stand the greatest securities in the nation; for, estos at some merchants in Glasgow heard a transient communing betwixt the parties some weeks before the closing of the bargain by entering into writ, what can that import? seeing many projects of commerce are contrived amongst merchants which never take effect, but by posterior treaties and communings are cast into new shapes; so that to prove loose talkings and projects may be dangerous, they never proceeding on that foot, but come afterwards to be wholly altered. And as to the insurance, whatever it might operate against sea-hazard, by storm and shipwreck, fire or piracy, yet it can never extend to insure against the infidelity of the supercargo, who disposed on the ship and goods without warrant.
The Lords refused to examine extraneous witnesses, (for non constat they were communers,) but allowed the writer and instrumentary witnesses to be examined, before answer, as to the parties' meaning; and allowed them to prove that the ship was sold in the plantations, and that the price and effects were remitted to England or Scotland, to the effect they might the better judge, when they had the whole matter before them, whether the condition of the obligation was purified or not.
Vol. II. Page 309.
See the subsequent part of this Report, infra, 2d December 1707.
