Scottish Court of Session Decisions

Subject_1 PRIZE.

Stuart
v.
The Owner of the Ship called the Seal-Fish

Date: 17 December 1673
Case No. No 45.

The Court of Session may review the Admiral's judgment by advocation.

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Captain Stuart having brought up a Danish ship called the Seal-Fish, insisted before the Admiral to have her adjudged prize upon these grounds, that the skipper acknowledgeth himself by his oath to be a sixteenth part owner, and is a born Hollander; and albeit he pretends to be a burgess of Bergen, and that by his first oath he deponed he lived the last year there, yet being re-examined, he acknowledgeth that he had not been in Bergen these three years, and that he was made burgess of Bergen, not in Bergen but at Copenhagen, and that in anno 1672 he resided in Holland with his wife, having only a hired chamber; that he removed that year from Holland, and brought his wife and plenishing with him to Denmark, and that she is now dead, and that he hath slept since in his ship; the Admiral did, before answer, appoint the strangers to prove the property of the ship and goods, and the skipper's residence. The Captain gave in a bill of advocation, alleging, That the Admiral in this had done iniquity, that he did not presently condemn; and by the general custom of nations, admirals being obliged to judge within two tides, could not protract processes by acts before answer, which are nobilis officii, and only done by the Lords when they allow a conjunct probation, which is not allowable in the ordinary form of processes, but ex nobili officio only. It was answered, That by the Danish treaty it is agreed, that when any Danish ship is brought up, there shall be no meddling with the ship or goods till it be judged in a court of admiralty, and therefore the Lords cannot advocate the cause, but the Admiral must be judge by the treaty; neither hath the Admiral done any iniquity, having only before answer granted commission to try the property, which is in arbitrio judicis.

The Lords found, that albeit the Admiral was judge in the first instance, the Lords were judges in the second instance, either by advocation or suspension, upon complaint of iniquity, in which case they are the King's Great Court of Admiralty, as well as his Consistory in matters consistorial, which they cannot begin in the first instance; they found also, that the Admiral had committed no material iniquity, and therefore refused the advocation, but with this quality, that the Admiral should proceed, either to condemn upon the reasons of adjudication, or to find the defence relevant, by eliding the presumptive grounds of adjudication by a contrary positive probation, that the skipper had actually changed his residence, and that the ship and loading belonged all to freemen, and not by an act before answer; and declared, that if the Admiral did not proceed accordingly, they would advocate the cause.

Stair, v. 2. p. 241.