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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Murray v. Lylle
1669.
February.
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The suspension, Lylle contra Murray, being called before my Lord Stair, in December, 1668, Mr. Alexander Oswald, procurator for the suspender, repeated the first reason of suspension: also offered him to prove that the ship was broken vi majore, and that no mora vel culpa on his side proceeded the vis major; and so was made incapable to ply the said voyage. (See P. Peckius ad Leges Nauticas, pagin. 285, et seq.)
To the which it was answered for the charger, by Mr. John Colvill and myself,—That albeit the ship had been broken vi majore, which he denied; yet the foresaid reason ought to be repelled, in respect of the contract charged upon; whereby the suspender did input the charger, master of the said ship, and took him obliged to attend the same, and to cause repair the same in all the defects thereof upon the said suspender his charges, also to hire a company of skilful mariners for plying the said voyage. And it is offered to be proven that the charger did attend the said vessel for the space of eight weeks, and did hire sailors, and was ready to fulfil all the other parts of the said contract; likeas by the instrument produced, he made offer to do the same.
Which reason and answer the said Lord having considered, he ordained before answer the suspender to prove the ship was broken vi majore, and at what time; and also ordained the charger to prove his attendance and hiring of mariners; item, assigned the day of January. Whereupon an act being made, letters of diligence by both parties are raised thereon: who compearing and deponing, the Lords at the advising of the cause and of the deposition of the witnesses, found the letters orderly proceeded for the sum of L.13 Sterling, and suspended them for the remanent sums charged for.—28th February, 1669.
