Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 LYON-COURT.

Forsyths
v.
Shank

1776. March.

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Maritime causes cannot be advocated from the High Court of Admiralty; but it often comes to be matter of dispute, what are maritime causes,—what not?

AN action of damages was brought before the Judge-Admiral against certain defenders. It set forth, that they, having freighted a ship belonging to the pursuer, to bring timber from Gottenburgh, &c. had under that cover imported in her prohibited goods; and that, on this account, the ship had been condemned in the Exchequer :—therefore concluding for damages. The Judge-Admiral assoilyied. The pursuer brought a bill of advocation, which, being passed, came to be discussed before Lord Covington.

The point debated was the competency of the advocation.

Against the competency was urged the Act 1681 ; the decision, 111 New (Faculty) Coll., No. , Steven against Erskine, p. 49.

Had the question been concerning the freight, the cause would undoubtedly have been acknowledged to be maritime; but, being for damages arising from the breach of a contract, it was contended not to be so. But, in answer, it was alleged that every cause arising from a maritime contract was truly maritime; as every action arising from a seizure was a revenue cause, and belonged to the Exchequer. See Martin against Watt.

On the other hand, was pleaded a decision observed by Fount., 21st February 1694, Rowan against Darling; another observed by Kilk, p. 300; and at any rate it was insisted, That, even should the advocation be thought not competent, still it was competent to remit with an instruction.

This last was disputed. It was held to be equally incompetent to remit with an instruction, as to advocate. See Fount., 7th February 1693, Robertson.

“ The Lords dismissed the advocation as not competent.”