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SCOTTISH_HoL_JURY_COURT

Page: 281↓

(1817) 1 Murray 281

CASES TRIED IN THE JURY COURT.

No. 27

Davidson

v.

Leslie.

1817. Dec. 17.

Present, Lords Chief Commissioner and Gillies.

An action for the price of a cargo of herrings lost on the coast of Caithness, though not all on board at the time the vessel was wrecked.

This was an action in the Admiralty Court to recover the price of 600 barrels of herrings, under the following circumstances:

The pursuer sold to the defender 500 barrels of herrings, to be shipped at Pultney, the harbour of Wick, in Caithness. He had 600 barrels more lying in his stores at Lybster and Dunbeath, in Caithness, which, in the course of two days, he also sold to the defender. The bargain for the 600 barrels was written on the same paper with that for the former quantity, and they were to be delivered free on board; but nothing was said of the place of shipment. Five hundred and fifty-seven barrels were put on board, when a storm came on, and the vessel was wrecked off Dunbeath.

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ISSUES.

“Whether the defender, Alexander Leslie, upon the 1st September 1814, or about that time, purchased from the pursuer 600 barrels of herrings, at the rate of 37s. per barrel, then lying in the pursuer's stores of Lybster and Dunbeath, to be shipped free on board at the said places, for Peterhead, for behoof of the defender? And whether the whole, or if not the whole, what number of the said 600 barrels of herrings were so shipped, in terms of said bargain, on board the brigantine Amity when she was lost, together with her cargo, on 24th October 1814?

Or whether, by the terms of the bargain, the said herrings were to be delivered at Pultney harbour, and to remain at the risk of the pursuer until delivered there?”

The death of the defender is not a sufficient reason for putting off a trial, if appearance is made for the trustee or his sequestrated estate.

When the case was called on for trial, it was stated by the pursuer, that the defender was not only bankrupt but dead; accounts of his being drowned having just reached town.

The Court having suggested that the trustee appearing as defender was sufficient,

Forsyth and Jeffrey, for the pursuer, contended,

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That they were entitled to have the case delayed till the representatives were called; that there might be a reversion to the bankrupt; that if he was alive, and put in prison, his friends might come forward, or, being dead, his representatives may incur a passive title.

Act Sed. 9th July 1817, § 7.

Lord Chief Commissioner.—By the act of sederunt, notice ought to be given of a motion for putting off a trial, though that, perhaps, might be got over in the present case, from the recency of the intelligence of the death; but there must be an affidavit by the agent that he believes him dead. By Act of Sederunt, the trustee appearing is sufficient. Consent would have gone a great way in this case, but the trustee is ready to go on. Unless some great injustice can be pointed out, it appears that the case can be as well tried now as at any subsequent period.

Lord Gillies.—What possible interest has the party to object to this? What can he get by a decree against the trustee and bankrupt together, which he will not get by one against the trustee? What evidence is there of the death? In this Court, it is not sufficient to state it; there must be an affidavit that the agent believes it true. If this is not done, I

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am clear we ought to proceed, as I can conceive no possible interest they have to delay. It is vain to think the representatives will incur a passive title, and the advantage sought by putting him in prison is an unfair one.

Jeffrey wished to give in a minute stating the fact that the defender was dead; but Lord Gillies observed, This cannot appear on record, unless an affidavit is put in.

The defender contended, that the bargain for the herrings being on the same paper, and having reference to a bargain for herrings to be shipped at Pultney, they must be brought to that port before they were at his risk. He farther contended, that it was the general practice to ship herrings at that port, not at Lybster and Dunbeath; and that they were not free on board till the whole were on board.

The witnesses, however, on both sides, swore that more herrings were shipped on the coast than at Pultney, and that they considered free on board to mean free of expence.

Lord Chief Commissioner.—The proof for the pursuer is extremely simple; and the defender's statement as to the place of loading, and the meaning of free on board, being contradicted

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by his own witnesses, it is only necessary to attend to the terms of the issue.

On the first, you may find that he made the purchase, and that 557 were delivered free on board, and negative the second issue.

Verdict for the pursuer on both issues.

Counsel: Forsyth and Jeffrey, for the Pursuer.
Cockburn, for the Defender.

Solicitors: (Agents, Alex. Forsyth and Arch. Duncan.)

1817