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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Paul v. Old Shipping Company. [1816] ScotJCR 1_Murray_64 (10 June 1816) URL: http://www.bailii.org/scot/cases/ScotJCR/1816/1_Murray_64.html Cite as: [1816] ScotJCR 1_Murray_64 |
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Page: 64↓
(1816) 1 Murray 64
CASES TRIED IN THE JURY COURT.
No. 9
Present, Lords Chief Commissioner and Pitmilly.
The owners of a vessel found liable for the loss sustained by the shippers, having concealed that she was under detention for payment of duties, and the market price of goods having fallen.
This was an action to recover the loss sustained on flax-seed by the detention of a vessel belonging to the defenders.
The Defence was, That no loss was suffered: That the application to take the seed on board was not made till after the day on which the vessel should have sailed: That the defenders did not engage that their vessels should sail on any particular day, and were not put on their guard that this was an indispensable condition of the shipment.
Mr Paul, merchant in Leith, wrote to Messrs Hewitson of London, to send him a
Page: 65↓
“Whether, on or about the 27th day of April 1814, certain goods, viz. one hundred barrels of flax-seed were shipped on board a certain vessel belonging to the defenders, called the Lord Melville, then lying in the port of London, taking in goods on freight for the port of Leith? And,
Page: 66↓
Whether, at the time of receiving said flaxseed on board, or at sometime before, the defenders, by themselves, or others acting in their name and by their authority, did undertake to the shipper or shippers of the said flax-seed, that the said vessel should set sail from the said port of London, with the said flax-seed on board, on or before the 29th day of April 1814? And,
Whether, as the said vessel did not sail on the voyage aforesaid, on the day last aforesaid, the pursuer has thereby suffered loss and damage, by losing the opportunity of disposing of the aforesaid flax-seed to the best advantage; for which loss and damage the defenders are liable?”
“The damages are laid at L. 500.”
By lodging an affidavit that a witness who cannot attend is a material witness, the Jury may be dismissed by the parties consenting to withdraw a Juryman.
After the Jury were sworn, a certificate that a witness could not attend was produced.
Jeffrey for the pursuer.—The Jury are charged with the case, and can only be relieved by a verdict.
Page: 67↓
Clerk, for the defenders.—He was taken ill this morning. The party will go on without him.
When two commissions are granted, the examination by the defender is to be considered as his evidence, and not cross to that for the pursuer.
Evidence in this case had been taken on commission in London; and one of the counsel stated, that the evidence for the defenders could not be considered as cross to that of the pursuer, to which the opposite counsel assented.
Hewitson in his deposition stated, that he or his partner sent to inquire the time of sailing.
Page: 68↓
Jeffrey.—I only wish to establish, that he sent, and acted in consequence of the answer returned.
The bill of lading was then read.
objections to the competency of a witness examined on commission are open for discussion when his evidence is produced.
Clerk stated, That if he had known in time, there was a material objection to this witness: he is brother-in-law to the pursuer, and, therefore, incompetent.
Jeffrey denied that he was, and Mr Clerk did not insist in his objection.
Jeffrey, for the pursuer.—Sunday and Thursday are regular days of sailing, and the flaxseed was bought on the faith of the Lord Melville sailing on Thursday the 28th April. The defenders concealed the fact that she was under detention. They substituted another vessel in her place, but did not put the seed into
_________________ Footnote _________________ * See
infra,
Downie v. Burgan, 24th Feb. 1817.
Page: 69↓
Clerk, for the defender.—There is no evidence of either culpable negligence, or substantial breach of contract. The vessels do not sail on the days specified, if any thing renders it inconvenient. The company did not engage that the ship should sail on the 28th April, and the nature of the cargo was not explained to them.
Page: 70↓
Concealment of truth is as good a ground of action, as assertion of falsehood; and in this case, though there is no proof of falsehood, there is something of concealment, and this is one of the most proper subjects for the determination of a Jury. If you think he ought to have informed Hewitson of the detention, or that he had reason to believe the duties would not be paid before the 28th, you will find damages. There is no evidence that Lawrie was informed of the nature of the cargo; and this concealment must be kept in view in considering that on the other side. The proposed change from one vessel to another would have been hazardous; for if Haig had paid the duties on the 28th, the Queen Charlotte would not have been the first vessel.
Verdict for the pursuer, damages L. 100.
Counsel:
G. J. Bell and
Jeffrey, for the Pursuer.
Clerk and
Cuninghame, for the Defenders.
Solicitors: (Agents, Brodie and Imlach, w. s. and Tweedie and Welsh, w. s.)
