Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Philip Van Portan and Sandilands
v.
Captain Andrew Dick

Date: 28 January 1680

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Philip Van Portan pursues Captain Andrew Dick, for certain merchant ware, which was robbed at sea from him by Captain Martine, and intromitted with by Captain Dick.

The defender alleged Absolvitor; because he bought the goods bona fide from Martine, and did not know that they were taken in piracy.

It was replied for the pursuer, 1mo. That stealth or robbery are vitia realia, and so give interest, to the party injured, to recover his goods, rei vindicatione, from any intromitter or haver.

It was duplied for the defender, that rei vindicatio hath only effect against the present haver, aut qui dolo desiit possidere.

It was triplied for the pursuer, That vindicatio takes not only effect against the present haver, but against any who had the same, in quantum sunt lucrati; and, therefore, Captain Dick is liable for what more he got than he gave. 2do. He is liable for the whole value, because he was accessory to the piracy, by resetting goods from a privateer, with whom he could make no bargain bona fide; because, by the law of nations, and the custom of all Admiralties, buying goods from a privateer is prohibited, till they be declared prize; and Captain Dick, by his oath, acknowledged that Martine told him these were prize-goods.

The Lords found it relevant, That these goods were robbed at sea, and were not declared prize, to make the defender liable for restitution of what he had in his possession the time of the citation, and for what he made profit of, which he had disposed of before the citation. And ordained either party to adduce evidences of the neighbouring Admiralties, for clearing the custom,—whether it be unwarrantable to buy any goods from privateers, not only that are in ships taken prize by them, but that are in their caping frigate, until the adjudication pass; to the effect, that, if that custom shall be proven, Captain Dick may be liable for the whole value: for there was produced the late treaty of Breda, in which there was an article to that purpose, but did not sufficiently instruct it to be the common custom of nations. And it was not found sufficient to prove that these goods were taken in piracy by Martine,—that both he and Captain Dick being cited before the admiral, Martine was decerned for not finding caution judicio sisti, and was fugitive; and, being apprehended at London by Van Portan, he did acknowledge the piracy, and enumerated the goods, amongst which these in question were contained: he being voluntarily dismissed by Van Portan, upon that confession.

Vol. II, Page 750.