Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION VI.

Admiral Court.
Subject_3 SECT. IV.

Dispensation to hold courts during vacation.

Mr Alexander Higgens, Advocate, and Procurator-Fiscal in the High Court of Admiralty
v.
Sir Alexander Brand of Brandfield

Date: 26 June 1705
Case No. No 223.

A person bought goods which were exposed to public auction by decree of the Admiral. One of the articles was, that the price should be paid to the Clerk of Admiralty under a penalty. The jurisdiction of the Admiral, in a process for payment of the penalty, was sustained.

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The Catharine of Rotterdam and its cargo being adjudged as prize by sentence of the Admiral, and the wines aboard that ship exposed by his order to a public roup, whereof it was a condition and article, that the greatest offerer should be preferred, upon giving bond and sufficient caution to pay the price offered the Clerk of Admiralty within ten days, under the penalty of L. 2000 Scots; Sir Alexander Brand was preferred as the highest offerer, and signed the articles and conditions of roup; who having failed to perform, was pursued before the Admiral Court at the instance of Mr Alexander Higgens, procurator-fiscal there, for payment of the L. 2000 of penalty.

Sir Alexander raised advocation of the process upon the head of incompetency, alleging, 1mo, That albeit the Admiral was the only proper judge in the first instance to the roup of the wines declared prize; yet after the roup was over, he was not competent to determine how far the defender had incurred the penalty, which is a liquid sum of money, and no maritime subject.

2do, The pursuit being at the Procurator-fiscal's instance, for the behoof of himself and the Admiral Court, if the Judge Admiral should determine therein, he would be both judge and party.

Answered, If the Admiral had not power to judge of penalties incurred through not fulfilling of the articles of roup, his jurisdiction would be altogether elusory, and insignificant; et concessa jurisdictione, omnia concessa videntur, sine quibus explicari non potest. 'Tis ridiculous to allege, that the Judge Admiral cannot determine in penalties consisting of liquid sums; for then he could not judge of penalties in charter parties. 2do, He is most competent to judge as to the penalty, though some part of it be to come to his own use; for what is more ordinary, than for sheriffs and bailies of regality to decern for payment of fines in processes at their procurator fiscal's instance, albeit these fines belong to themselves? And this holds in the contravention of all penal statutes. And here there is a jus quæsitum to the Court of Admiralty, by the defender's obliging himself to give bond and caution to the clerk, for payment of the price of the wines bought by him under the foresaid penalty; and he having failed to perform, the Admiral is only Judge competent to cognosce how far the penalty is incurred.

The Lords repelled the reason of advocation, and remitted the cause.

Fol. Dic. v. 1. p. 502. Forbes, p. 11.