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: 2 December 1707
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[See the prior part of this Case, supra, page 634.]
James Corbet, merchant in Glasgow, pursues Mr William Cochran of Kilmaronock, on this ground,—That, they being partners of a ship freighted outward to Guinea, there to take in slaves and carry them to their market in America, James sells his 12th part to Kilmaronock, and insures it for the premium of 10 percent.; whereon James Corbet gets from Kilmaronock two bonds, one for £300 sterling, as the price of his 12th share, and the other for £30 sterling, as the premium of insuring. But Kilmaronock inserted this clause in his bond of £300, —That it should be payable if the ship returned to Scotland or England; but, if it returned not, the bond should be void and null, and Kilmaronock free of paying the sum. The ship went safe to Guinea, took in 70 slaves, carried them to the West Indies, and sold them there, but never returned to Britain; Pitisco the skipper, and Corse the supercargo, having sold the ship there, because it was insufficient to sail home, and was delated to the governor as an unfree ship. The price and effects were remitted to Scotland; and Kilmaronock took his own 12th share, but would not meddle with Corbet's, (though disponed to him,) because he thought his bond null, the condition never existing; whereupon Corbet pursues him to pay the £300 sterling. His defence arose from the quality of his bond, that he was only to pay it when the ship returned; but, ita est, it never came back: and so, the obligation being conditional, and not purified, he cannot be liable.
Answered for Corbet,—That the bargain being mercatorian, and of the nature of an insurance, if the ship had failed to return, on the usual events provided against by such policies of insurance, as tempests, shipwrecks, firing, rifling, reprisals, seizure by capers or buccaneers, embargos of foreign states, &c. then Kilmaronock's condition had existed, and he been free. But this accident arising from the unfaithfulness and baratry of the skipper or supercargo, that was such a casus incogitatus, and was not provided against; and they being of Kilmaronock's in-putting, he must be answerable for their deeds; nam qui per alium quidfacit, per sefacere videtur. —And all the writers on maritime law, and all the forms of insurances do never extend to such hazards and events. 2do, Though the condition of returning was not performed in the strict literal sense, and in forma specifica, yet it was virtually and equipollenter fulfilled, in so far as the price returned and Kilmaronock drew his share of it. And, if the price had been to the owner's advantage, Kilmaronock would never have proponed this defence; and therefore, though it proved to their loss, he cannot be heard to obtrude this strict and rigorous not return; for majus et minus non variant speciem, et qui habet commodum debet et sentire incommodum, otherwise it would be a societas leonina.
Replied for Kilmaronock,—That maritime contracts are optima; et uberrima; fidei; and, whatever be the style of insurances, what hinders a man to provide, by additional clauses, for his own security; as is here done. And, by the Act of Sederunt, 1613, the Lords are bound to decide precisely in the terms of clauses irritant, as the parties have agreed: and though, in some cases, equipollents are received for implements, yet, generally, equipollences are not allowed, as in the cases of premonitions, requisitions, consignations, &c.; and law is plain and precise on that head,—l. 8, § 2. D. de Condit. Institut. adimplenda est conditio in modo et forma prascriptis, alias pro defecta habebitur; I. Unic. § 4, C. de Cad. Tol.; 1. 44,45, 55. Dig. de Condit. et Demonstrat. And Kilmaronock denies any accession to the selling of the ship in the Indies, or that the skipper or supercargo were more of his in-putting than the rest of the partners, who were as much bound to answer for their deeds as he.
The Lords, by a plurality of six against five, found, the ship never having returned to Britain, the condition of Kilmaronock's bond was not purified nor fulfilled; and therefore assoilyied him from the £300 sterling bond; but found him liable in the £30 sterling of premium.
This will not hinder Corbet to get his share of the price returned; which was so inconsiderable that it will not be the tenth part of what they probably might have expected by the voyage, if it had been prosperous and successful.
