Sir Andrew Kennedy, Conservator, v. William Gordon, Merchant
Date: 28 June 1705 Case No. No 224.
An action raised before the Admiral, at the instance of the conservator of Campvere, against a factor abroad, for money expended in negotiating his affairs in Holland, advocated in jure as not being maritime.
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Sir Andrew Kennedy having pursued William Gordon before the Judge of Admiralty for sums of money which he alleged were spent by him, his son, and servants, at the Hague, and other places in Holland, in defending William Gordon in a plea betwixt him and his wife, a Dutch woman; a bill of advocation was expede, and coming in to be discussed before the Lords, this reason was proponed, That the cause was not maritime, and therefore not competent to be judged by the Admiral.
Answered for the pursuer, He being a foreign Minister, and the defender a factor abroad, where the money pursued was expended at his desire and order, and so a foreign debt; the Admiral was most competent to decide therein. For it was found in the case of Van Rixel and his factor against Black, That a foreign bill of exchange fell properly within the Admiral's cognisance.
Replied for the defender, No cause can be called maritime, except what relates to vendition or freighting of ships, differences betwixt masters and seamen, masters and owners, masters and freighters, bills of bottomry, and the like, in the terms of the act 16th Parliament 1681. Therefore, to pretend that a foreign debt is a maritime cause, is a jest. As for the cited decision, it has certainly concerned a bill of bottomry, and not a bill of exchange.
Duplied for the pursuer, That he (who is in effect general factor for the Royal Boroughs, and the preservation of trade) had, in discharge of his commission from Gordon, been put to several necessary voyages at sea, in order to exempt him from the Dutch jurisdicion, when he was at the point of being run down by the eviction and seizure of all his effects, bills, compt-books, &c. And therefore an action for refunding expenses and repairing damages by such an employment relating to trade, is precisely in the terms of the act of Parliament.
The Lord found the case not maritime, and therefore advocated the cause in jure.
Fol. Dic. v. 1. p. 502. Forbes, p. 18.*** Fountainhall reports this case.
Sir Andrew Kennedy pursues William Gordon, merchant in Campvere, before the High Court of Admiralty, for his expenses and damages in managing his business against his wife at the Hague, and other affairs, being employed to secure him against these pursuits, as being under his jurisdiction as Conservator. Of this process, Gordon procures an advocation; which being called and debated, Mr Gordon contended the affair was nowise maritime, and so the Admiral was incompetent. Answered for Sir Andrew, That he was precisely in the terms of the act 16th Parliament 1681, anent the Admiral's jurisdiction; for it had occasioned him to make several voyages by sea, from one province of the Netherlands to another; likeas the subject matter was also maritime, being to preserve a factor's goods sent from Scotland from Dutch arrests. Replied, This cause has no relation to sea-affairs, being neither for freight, seamen's wages, bills of bottomry, or the like; and therefore the Admiral was nowise competent judge thereto. The Lords found the case not maritime, and therefore advocated the cause.
