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The Laird of Balwhilly having seized upon a ship belonging to the Dutch, during the war, Colonel Seatoun, Governor of the Fort at Brassie-sound, meddled with the ship and loading, brevi manu, for the use of the garrison; Balwhilly pursues a spuilzie before the Admiral: Colonel Seatoun gives in a bill of advocation on this reason, that Balwhilly having no commission, albeit he did seize upon the ship, yet it belongs to the King, and the Colonel had a warrant from the Lord Commissioner to intromit therewith, for the garrison's use; and therefore, in the cause concerning the King, his Majesty's Advocate and officers were not obliged to answer before the Admiral, nor could they attend there, and therefore the advocation ought to be past. It was answered, That the reason was in causa, and not relevant, for the advocate ought to have a depute before the Admiral, which is a supreme court; and process maritime, in the first instance, ought not to be sustained before the Lords, and that whatever they pretended in the point of right, Spoliatus est ante omnia restituendus.
The Lords having heard the parties upon the bill, in præsentia, ordained the same to be past.
It was then desired, that as, before the Admiral, the Colonel behoved to find caution, not only judicio sisti, but also judicatum solvi, that he may be ordained to do the same before the Lords.
Which the Lords refused, but granted the advocation in common form.
