Scottish Court of Session Decisions

Subject_1 SOLIDUM ET PRO RATA.

William Hutton
v.
Alex Jamieson.

1753, July 6.
Case No. No. 2.

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A ship being taken by a French privateer, and so leaky that she sunk, the privateer kept one of the crew as hostage that an equal number of French prisoners should be released by us, and Jamieson being one of the boys on board, Hutton pointed him out to be kept, which he was, and the rest released. He now sued Hutton, who was master, for his damages on being detained there, both for his expenses there, and the wages he would have earned had he not been detained; which coming before us by suspension, Minto modified a sum, and Hutton reclaimed. We all agreed that some recompence was due; but my doubt was of Hutton's being liable for more than his own proportion with the other sailors; for as the ship and cargo perished, the contract of affreightment and for seamens wages was dissolved, and neither freighter nor owners were liable, and none but the crew were benefited; that Hutton was no more master, and pointing out this boy seemed too slender a ground to make him liable for the other sailors, since some body must be left, and none more proper than a ship-boy. But the Court adhered; and Kilkerran and Kames put it on another footing, viz. that all the crew were liable in solidum, as if all had concurred, in deputing him to stay or to be kept for them, in which case all would be liable in solidum, and on reconsidering the point, I begin to think the interlocutor right. 6th July Adhered.