William Hamilton and John Reid, v. The Clerks in the High Court of Admiralty
Date: 16 December 1784 Case No. No 24.
Advocation, from the High Court of Admiralty, competent, in mercantile causes, at any time before extract.
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William Hamilton and John Reid, instituted in the High Court of Admiralty, an action for the profits of a mercantile adventure, in which the Judge pronounced several interlocutors in favour of the defenders.
After the last of these had become final, the pursuers applied, by a bill of advocation to the Court of Session; but the Clerks in the Court of Admiralty refused to transmit the process until they obtained payment, or a composition for their dues of extract; and
Pleaded: Though with regard to sentences pronounced by other Judges, it has been held, that advocation is competent at any time before extract, November 1766, Wright against Taylor,* the law is different in questions depending before the Court of Admiralty. As in cases strictly maritime, which are the proper subject of that jurisdiction, the sentences of the Judge can be set aside only by reduction; so it has been found, that even in those of a mercantile nature, the parties, by voluntarily resorting to that tribunal, have subjected themselves to all the peculiarities attending it, as in the case of Cairns against Jackson; Fount. 24th January 1699:† A decision which ought to be followed to the effect, at least, of securing to the officers of that Court their just emoluments, especially where the attempt to advocate comes from the pursuer in the original action.
Answered: By submitting their cause to the decision of the Judge-Admiral, in a case like the present, parties, it is true, confer jurisdiction on a Judge other-wise incompetent. But they do not, at the same time, convert a cause purely mercantile, in which the Judge-Admiral is possessed only of the ordinary powers, into one of a maritime nature, in which his proceedings can be brought under review by reduction alone. It was from not attending to this obvious distinction,
* The case probably meant is Wright and Graham, No 20. supra.
† Fountainhall, v. 2. p. 37. See Jurisdiction.
that the determination, quoted on the other side was given, from which indeed it would not merely follow, that the clerks in the Court of Admiralty could not be compelled to deliver, without a composition, the papers lodged in actions of a commercial nature, but that the remedy, by advocation, was there altogether inadmissible.
The Lords found, ‘That the clerks in the Court of Admiralty were obliged, without any composition, to transmit the process to the Court of Session.’
Lord Reporter, Ankerville.Act. Geo. Fergusson.Alt. Solicitor-General Dundas.
Fol. Dic. v. 3. p. 20. Fac. Col. No 184. p. 289.
