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Scottish Court of Session Decisions >>
Captain Cairns, &c. v Isaac Jackson, &c. [1699] Mor 7506 (24 January 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Mor1807506-222.html Cite as:
[1699] Mor 7506
Afterwards it was found, in such a case, that the jurisdiction of the Admiral being prorogated by bringing the cause before him, it could not be advocated.
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Whitelaw reported a bill of advocation from the Admiral, at the instance of Captain Cairns, and Patrick Don, his factor, against Isaac Jackson, merchant in London, and Robert Innes, his factor, in an action of forthcoming on bills of exchange. The reason of advocation was, manifest iniquity committed by the Judge Admiral, in sundry particulars. Answered, By the act 16th Parliament 1681, the Admiral Court is declared sovereign, and all advocations discharged from it in prima instantia, and no remedy left but suspension and reduction. Replied, That holds in cases maritime and competent to that judicatory, so that advocations upon incompetency may yet pass; and every day we have advocations where the Admiral sustains himself to cases noways maritime; and this action is such. Replied, You can never obtrude that, because you elected this judicatory yourself, and provoked to judgment, by citing the defender before this Court, and so, of consent, having given him jurisdictio prorogata, you can never reclaim nor quarrel the power given him by law. Duplied, Though I submitted to the Admiral's jurisdiction, by tabling my cause before him, yet the same being noways maritime, and he no otherwise Judge competent to it, but by my consent and prorogation, if he injure me by iniquitous interlocutors, I may advocate, as any other might do. The Lords, by their plurality, thought he who elected a Judge, took him with all the qualifications and extent of his power, as it is explained by law; and, therefore, advocations on iniquity being prohibited by that act of Parliament, (which well deserves a review,) and you having made him competent, they refused the bill of advocation quoad him.
Fol. Dic. v. 1. p. 503. Fountainhall, v. 2. p. 37.
