MefT. William Alexander and Sons, Merchants in
February
28. 1771 .
F O R
MefT. William Alexander and Sons, Merchants in Edin burgh, Defenders, A G A I N S T
James Scrimgeour and Son, Merchants in Borrowftounnefs, Purfuers. H A T in the queftion between thefe parties, about the freight of the fhip the Duke of Athol, your Lordfhips, of this date, pronounced the following interlocutor. “ Find Mar. 2.1769 the purfuers intitled to the fum ofL. 5, $ s. Sterling for each cabin-pafienger, and L. 2, 2 s. for each fleerage-pafTenger, and two thirds of port-charges, conform to the defenders letter o f date the 23d March 1765: Find the purfuers intitled to the freight of the (hip the Duke of Athol from Granada to North Carolina; and find them intitled to the freight of the faid (hip from North Carolina to Leith, according to the rate that was to have been paid by the faid letter from Virginia to the frith of Edinburgh : Find the purfuers intitled to two guineas demurrage per day, from the 8th July 1765, when the fhip arrived at Granada, to the 30th March 1766, that fhe left Cape Fear; dedu cing from the 29th of Augufl 1765 to the 18th October there' after, being the time fhe took in failing from Granada to Cape Fear in North Carolina, and deducing like wife feventy lie-days which, the defenders were intitled to while the fhip refled either at Granada or Cape Fear; and find, that after faid deduc* tions, there remain 143 lie-days for which demurrage is to be paid : And allow the defenders, on 01 before Monday next, to anA “ fwer
“ fwer the condefcendence given in by the purfuers of the freight “ ought to be paid from Granada to Gape Fear.” And upon advifing a reclaiming petition for the memorialifts, with anfwers for MefT. Scrimgeours, your Lordfhips were pleafed, by inJunei7.i769. terlocutor of this date, to “ refufe the defire of the petition, pray“ ing to find, That the purfuers have no claim for demurrage, or “ other fpecies of indemnification,' for the time the lhip lay at Ca“ rolina ; and as to thefe points, adhere to their former interlocu11 tor reclaimed againft, and remit the caufe to the Lord Oi dinary “ to proceed accordingly : but as to the burden of the fhip, and “ number of lie-days at Carolina, remit to the Lord Ordinary to “ hear parties further thereon, and alfo to proceed in the whole caufe as he fhall fee juft.” When the caufe came back to the Ordinary, it appears from the minutes, that the counfel for Me IT. Scrimgeours “ repeated the in“ terlocutor of the inner houfe ad March 1769; whereby the pur“ fuers were found intitled to a freight for their fhip the Duke “ of Athol from Granada to North Carolina; and reprefented, “ That in order to afcertain the extent of this freight, the purfuers had procured, and produced, the affidavits ot James Smart “ ffiipbuilder, and Hercules Angus fhipmafter, with refped to the “ dimenfions of the fhip, bearing, that her whole burden a“ mounts to 174 tuns, and fixty ninety-fourths of a tun. They “ have likewife procured, and produced, the opinion of James “ Grinlay, James Drummond, and Robert Grinlay fhipmafters, “ bearing, That, in their opinion, a veffel of the dimenfions de“ fcribed in the forefaid affidavits, will deliver at the King’s beam, “ from the ifland of Granada, 170 tuns neat fugars. They have “ alfo procured, and produced, certificates under the hands of “ William Miller, Thomas Johnfton, John Forbes, and James “ Taylor, bearing, That, in their opinion, the purfuers fhip the « Duke of Athol ought to be allowed L. 3, 10 s. Sterling per tun *• of fugar, as freight from the ifland of Granada to Cape Fear. “ From which they contended, That the burden of the fhip, and the “ number of tuns of fugar lire would deliver at the King’s beam, “ and likeivife the freight of each tun from Granada to Cape “ Fear, was fufficiently inftrudled ; and- infilled, That the Lord “ Ordinary would find the defenders liable to the purfuers in “ L. 3, 10 s. Sterling per tun of 170 tuns fugar, as freight from ■“ Granada to Cape Fear, amounting to L. 595 Sterling, and would “ decern
€C decern accordingly : And farther refamed that part of the inter“ locutor of the Lords in prefence, of the 2d March 1769, find u ing, That after the deductions therein mentioned, there remain a 143 lie-days for which demurrage is to be paid, which amounts it to L. 300, 6 s. ; for which fum alfo craved decreet.” It was anfwered by4the counfel for the defenders, fo far as con cerned the burden of the fhip, “ That the extrajudicial affidavits “ by perfons totally unknown, produced for the purfuers, are falfe H in fad. The defenders maintain, with the utmoft confidence, it that no fhip ever built of the dimenfions of the Duke of Athol, a can or will carry nigh 174 tuns of neat fugar, or indeed more it than 100 tuns; and that the fhip in queflion will not carry fo ct much, the defenders offer to prove, if neceffary : and they opu pone to thefe affidavits, thofe of Captain Henry Steel and Cap u tain Robert Moodie, gentlemen whofe characters and abilities “ are well known. Thefe affidavits were taken upon an applica a tion made to the bailies of Edinburgh, becaufe the gentlemen a were both going abroad. But the defenders are ready (till to u corroborate them by the mod fatisfadory proof from mafler-carit penters at Leith, and fliipmafters of experience in the Weft-Ina dia and American trade, if required. The defenders, however, a apprehend, that the burden of the fhip (lands eflablifhed by fads u liable to no exception, and free from the uncertainty which at tt tends every matter of opinion. The defenders do fay, That the Duke of Athol was fully loaded in Cape Fear ; and that a confitt derable quantity of tar and turpentine fent down to the fhip by it Mr William Purveyance, their correfpondent, was returned by it Captain Cowan, becaufe the fhip could carry no more. It is deit fired Mr Scrymgeour will confefs or deny this f a d ; or whether tt Captain Cowan, by letter, converfation, or otherwife, ever alledged a the fhip was not f u l l ; or whether Mr Scrimgeour ever did, or doth tt now believe, floe was not fu ll. If Mr Scrimgeour is fo uncandid it as to deny the fad, the defenders undertake to produce the mofl a fatisfadory evidence of it, by fuch of the crew as can be got, a and by the officers of cultoms wTho vifited the (hip on her ar it rival at I,eith: but as they are certain Mr Sciimgeour has no tc fhadow of reafon for faying the (hip was not full, if the defen a ders are put to the trouble of proving a f a d fo notorious, it is not “ (low fo well as the other fliips which are flat built, or full built. “ Depones, That the fhip the Duke of Athol would not carry the fame 4* quantity of lugar that (he would do of rice, owing to the rice 44 being in fmaller calks and half-calks : befides, lugar, in the co“ mingjiome, lofes in the weight, owing to leakage; whereas rice 4‘ lofes nothing, if the calks be tight; and the deponent has known 4; a fugar-fhip half a foot lighter on her arrival, than lhe had been 4i when loaded; and this he thinks is owing to the leakage of the u fugars, and the water-calks of the fhip being expended ; but the u far greatefl: part owing to the leakage of the fhip.” Several other witnefles have been examined on the part of the memorialifts; who fwear to different circumftances corroborative'of Mr Waddefs depofition. But it is needlefs to trouble your Lord fhips with them, as the matter is put out of all doubt, by a writing recovered out of the hands of Mefl. Scrimgeours themfelves, viz. the letter from John Cowan, who had the command of the fhip when loaded with tar at Cape Fear; which is as follows. 44 North 44 Carolina, Cape-Fear river, [January 27. 1766. Gentlemen, I take 44 this opportunity of writing to you, by a fhip from Portfmouth, 44 to let you know that I am now here, clear for fea, this four 44 weeks; but cannot get out for want of a proper clearance. There 14 is nine or ten fail lying here upon the lame account; but we 44 expecR relief from England every day. I have got now on board 44 of the fhip 1010 barrels of tar, which fills the fhip,” &c. After what has been ftated above, it would be improper to trou ble your Lordfhips with any further argument. The evidence is complete and irreiift.ible; and the memorialifls are perfuaded your Lordfhips will find them intitled to the expence of proof, which was entirely occafioned by a difingenuity on the part of MelT. Scrimgeours, when called upon to confefs or deny the fact as to the fhip’s being fully loaded at Cape Fear. Your Lordfhips have heard their anfwer was, That they had not been at Cape Fear, and could not fay whether the (hip was fully loaded there, or not. But though it is true, that they were not at Cape Fear; yet it is not true, rhat they could not have (aid, whether the fhip was fully loaded there, or not : for they had been long before informed, by a letter from Mr Cowan, the commander of the fhip, that lhe had been fully loaded at that place. In rcfpetl whereof.\ & c. JO. M A C L A U R I N .
28. 1771 .
F O R
MefT. William Alexander and Sons, Merchants in Edin burgh, Defenders, A G A I N S T
James Scrimgeour and Son, Merchants in Borrowftounnefs, Purfuers. H A T in the queftion between thefe parties, about the freight of the fhip the Duke of Athol, your Lordfhips, of this date, pronounced the following interlocutor. “ Find Mar. 2.1769 the purfuers intitled to the fum ofL. 5, $ s. Sterling for each cabin-pafienger, and L. 2, 2 s. for each fleerage-pafTenger, and two thirds of port-charges, conform to the defenders letter o f date the 23d March 1765: Find the purfuers intitled to the freight of the (hip the Duke of Athol from Granada to North Carolina; and find them intitled to the freight of the faid (hip from North Carolina to Leith, according to the rate that was to have been paid by the faid letter from Virginia to the frith of Edinburgh : Find the purfuers intitled to two guineas demurrage per day, from the 8th July 1765, when the fhip arrived at Granada, to the 30th March 1766, that fhe left Cape Fear; dedu cing from the 29th of Augufl 1765 to the 18th October there' after, being the time fhe took in failing from Granada to Cape Fear in North Carolina, and deducing like wife feventy lie-days which, the defenders were intitled to while the fhip refled either at Granada or Cape Fear; and find, that after faid deduc* tions, there remain 143 lie-days for which demurrage is to be paid : And allow the defenders, on 01 before Monday next, to anA “ fwer
“ fwer the condefcendence given in by the purfuers of the freight “ ought to be paid from Granada to Gape Fear.” And upon advifing a reclaiming petition for the memorialifts, with anfwers for MefT. Scrimgeours, your Lordfhips were pleafed, by inJunei7.i769. terlocutor of this date, to “ refufe the defire of the petition, pray“ ing to find, That the purfuers have no claim for demurrage, or “ other fpecies of indemnification,' for the time the lhip lay at Ca“ rolina ; and as to thefe points, adhere to their former interlocu11 tor reclaimed againft, and remit the caufe to the Lord Oi dinary “ to proceed accordingly : but as to the burden of the fhip, and “ number of lie-days at Carolina, remit to the Lord Ordinary to “ hear parties further thereon, and alfo to proceed in the whole caufe as he fhall fee juft.” When the caufe came back to the Ordinary, it appears from the minutes, that the counfel for Me IT. Scrimgeours “ repeated the in“ terlocutor of the inner houfe ad March 1769; whereby the pur“ fuers were found intitled to a freight for their fhip the Duke “ of Athol from Granada to North Carolina; and reprefented, “ That in order to afcertain the extent of this freight, the purfuers had procured, and produced, the affidavits ot James Smart “ ffiipbuilder, and Hercules Angus fhipmafter, with refped to the “ dimenfions of the fhip, bearing, that her whole burden a“ mounts to 174 tuns, and fixty ninety-fourths of a tun. They “ have likewife procured, and produced, the opinion of James “ Grinlay, James Drummond, and Robert Grinlay fhipmafters, “ bearing, That, in their opinion, a veffel of the dimenfions de“ fcribed in the forefaid affidavits, will deliver at the King’s beam, “ from the ifland of Granada, 170 tuns neat fugars. They have “ alfo procured, and produced, certificates under the hands of “ William Miller, Thomas Johnfton, John Forbes, and James “ Taylor, bearing, That, in their opinion, the purfuers fhip the « Duke of Athol ought to be allowed L. 3, 10 s. Sterling per tun *• of fugar, as freight from the ifland of Granada to Cape Fear. “ From which they contended, That the burden of the fhip, and the “ number of tuns of fugar lire would deliver at the King’s beam, “ and likeivife the freight of each tun from Granada to Cape “ Fear, was fufficiently inftrudled ; and- infilled, That the Lord “ Ordinary would find the defenders liable to the purfuers in “ L. 3, 10 s. Sterling per tun of 170 tuns fugar, as freight from ■“ Granada to Cape Fear, amounting to L. 595 Sterling, and would “ decern
€C decern accordingly : And farther refamed that part of the inter“ locutor of the Lords in prefence, of the 2d March 1769, find u ing, That after the deductions therein mentioned, there remain a 143 lie-days for which demurrage is to be paid, which amounts it to L. 300, 6 s. ; for which fum alfo craved decreet.” It was anfwered by4the counfel for the defenders, fo far as con cerned the burden of the fhip, “ That the extrajudicial affidavits “ by perfons totally unknown, produced for the purfuers, are falfe H in fad. The defenders maintain, with the utmoft confidence, it that no fhip ever built of the dimenfions of the Duke of Athol, a can or will carry nigh 174 tuns of neat fugar, or indeed more it than 100 tuns; and that the fhip in queflion will not carry fo ct much, the defenders offer to prove, if neceffary : and they opu pone to thefe affidavits, thofe of Captain Henry Steel and Cap u tain Robert Moodie, gentlemen whofe characters and abilities “ are well known. Thefe affidavits were taken upon an applica a tion made to the bailies of Edinburgh, becaufe the gentlemen a were both going abroad. But the defenders are ready (till to u corroborate them by the mod fatisfadory proof from mafler-carit penters at Leith, and fliipmafters of experience in the Weft-Ina dia and American trade, if required. The defenders, however, a apprehend, that the burden of the fhip (lands eflablifhed by fads u liable to no exception, and free from the uncertainty which at tt tends every matter of opinion. The defenders do fay, That the Duke of Athol was fully loaded in Cape Fear ; and that a confitt derable quantity of tar and turpentine fent down to the fhip by it Mr William Purveyance, their correfpondent, was returned by it Captain Cowan, becaufe the fhip could carry no more. It is deit fired Mr Scrymgeour will confefs or deny this f a d ; or whether tt Captain Cowan, by letter, converfation, or otherwife, ever alledged a the fhip was not f u l l ; or whether Mr Scrimgeour ever did, or doth tt now believe, floe was not fu ll. If Mr Scrimgeour is fo uncandid it as to deny the fad, the defenders undertake to produce the mofl a fatisfadory evidence of it, by fuch of the crew as can be got, a and by the officers of cultoms wTho vifited the (hip on her ar it rival at I,eith: but as they are certain Mr Sciimgeour has no tc fhadow of reafon for faying the (hip was not full, if the defen a ders are put to the trouble of proving a f a d fo notorious, it is not “ (low fo well as the other fliips which are flat built, or full built. “ Depones, That the fhip the Duke of Athol would not carry the fame 4* quantity of lugar that (he would do of rice, owing to the rice 44 being in fmaller calks and half-calks : befides, lugar, in the co“ mingjiome, lofes in the weight, owing to leakage; whereas rice 4‘ lofes nothing, if the calks be tight; and the deponent has known 4; a fugar-fhip half a foot lighter on her arrival, than lhe had been 4i when loaded; and this he thinks is owing to the leakage of the u fugars, and the water-calks of the fhip being expended ; but the u far greatefl: part owing to the leakage of the fhip.” Several other witnefles have been examined on the part of the memorialifts; who fwear to different circumftances corroborative'of Mr Waddefs depofition. But it is needlefs to trouble your Lord fhips with them, as the matter is put out of all doubt, by a writing recovered out of the hands of Mefl. Scrimgeours themfelves, viz. the letter from John Cowan, who had the command of the fhip when loaded with tar at Cape Fear; which is as follows. 44 North 44 Carolina, Cape-Fear river, [January 27. 1766. Gentlemen, I take 44 this opportunity of writing to you, by a fhip from Portfmouth, 44 to let you know that I am now here, clear for fea, this four 44 weeks; but cannot get out for want of a proper clearance. There 14 is nine or ten fail lying here upon the lame account; but we 44 expecR relief from England every day. I have got now on board 44 of the fhip 1010 barrels of tar, which fills the fhip,” &c. After what has been ftated above, it would be improper to trou ble your Lordfhips with any further argument. The evidence is complete and irreiift.ible; and the memorialifls are perfuaded your Lordfhips will find them intitled to the expence of proof, which was entirely occafioned by a difingenuity on the part of MelT. Scrimgeours, when called upon to confefs or deny the fact as to the fhip’s being fully loaded at Cape Fear. Your Lordfhips have heard their anfwer was, That they had not been at Cape Fear, and could not fay whether the (hip was fully loaded there, or not. But though it is true, that they were not at Cape Fear; yet it is not true, rhat they could not have (aid, whether the fhip was fully loaded there, or not : for they had been long before informed, by a letter from Mr Cowan, the commander of the fhip, that lhe had been fully loaded at that place. In rcfpetl whereof.\ & c. JO. M A C L A U R I N .
