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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Davidson v. Leslie. [1817] ScotJCR 1_Murray_281 (17 December 1817) URL: http://www.bailii.org/scot/cases/ScotJCR/1817/1_Murray_281.html Cite as: [1817] ScotJCR 1_Murray_281 |
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Page: 281↓
(1817) 1 Murray 281
CASES TRIED IN THE JURY COURT.
No. 27
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.
Page: 282↓
“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,
Page: 283↓
Act Sed. 9th July 1817, § 7.
Page: 284↓
Jeffrey wished to give in a minute stating the fact that the defender was dead; but
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.
Page: 285↓
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.)
