Where the Qualified Oath imports a Denial of the Libel.
Thomas Paden v. Andrew Govan
Date: 20 February 1751 Case No. No 15.
A ship-master being pursued by one he had engaged as second mate, and deponed, that, during the Voyage, the first mate was dismissed, and the pursuer, for some time, served in his place; and that he intended to have brought him home at such, but the pursuer himself refused, whereon he hired another. The quality was found intrinsic.
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Andrew Govan, Ship-master in Borrowstounness, hired Daniel Blair for his chief mate at L.3 : 10s. Sterling, and Thomas Paden, second mate, at L. 2: 129: 6d per month, for a voyage from Borrowstounness to Charlestown, in Carolina; thence to Borrowstounness, and thence to Rotterdam. Daniel Blair was discharged at Charlestown.
Paden pursued for wages as chief mate, before the Admiral-substitute at Borrowstounness, where the master deponed, “That the pursuer acted as chief mate from 6th or 7th September 1747, to 23d October thereafter, signed receipts, received on board the homeward-bound cargo. And being interrogated, if or not he was resolved to have gone to sea, and sailed homeward with the complainer as chief mate, till finding the ship leaky at Rebellion road, that the said ship was brought up again to Charlestown, where the complainer delivered the cargo, and hauled the ship down to a place to heave down, to make her fit for sea again? Deponed, that he was resolved to have sailed homeward with the pursuer as chief mate; and he acted as such till the ship was carried back to Charlestown to refit; and deponed, by his promise, that the pursuer was to have Daniel Blair's wages, as mentioned in the articles of agreement in process. Deponed, That after they returned to Charlestown, the pursuer refused to act in any other station aboard of the ship than what he first agreed for as second mate; and deponed, That he hired Alexander Crichton as chief mate; and that both he and the pursuer, Paden, kept journals, and navigated the ship homewards to Borrowstounness; that the pursuer acted as mate from Borrowstounness to Rotterdam, Crichton being discharged at Borrowstounness.
The Judge found it proved, “That the defender engaged the pursuer as chief mate, and that he acted as such, and was to have Daniel Blair's wages; but found that quality in the defender's deposition, that the pursuer refused to act in any other station than as second mate, to be extrinsic, and ordained him to prove it;” and, on failure thereof, pronounced decreet, which being suspended, the Lord Ordinary, 8th November 1750, “found the letters orderly proceeded.”
Pleaded, in a reclaiming bill, The agreement to serve during the voyage as second mate is proved by writ. It is only proved by oath that he served any time as first mate, or that the defender agreed to pay him as such; and the oath limits the time for which only he can have any claim.
Answered, It is proved by oath the bargain was passed from, and a new bargain concluded; the passing again from which is an extrinsic quality.
The Lords found the quality intrinsic.
Fol. Dic. v. 4. p. 203. D. Falconer, v. 2. No 202. p. 244.
