Scottish Court of Session Decisions

Subject_1 FORUM COMPETENS.

Fitzgerald and Egar
v.
Bontein

Date: 20 February 1752
Case No. No. 4.

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Fitzgerald and Egar's ship being seized and condemned in Jamaica, the decreet was on appeal to the King and Council reversed, and the ship or value ordered to be restored, “whereof the Governor or Commander in Chief of Jamaica for the time being, and all others concerned, were to take notice and govern themselves accordingly.” Bontein, the naval officer who seized the ship, coming to Scotland, the owners sued him for the value of the ship and L.3000 damages, and on a summary warrant, committed him to prison till he should find caution, where he lay till the process was finished; when the Judge-Admiral found that the naval officer acted bona fide, and agreeably to the duty of his office, and that by the decreet he was not liable in any damages; and that the said decreet could only receive execution as to restitution of the ship or value in Jamaica; and awarded L.5 of expenses, and L.25 14s. 4d. for extracting the decreet. Bontein brought a process of damages against the owners, and the Judge awarded L.100 sterling damages, and L.5. 7s. 8d. for extracting decreet. The owners presented a bill of suspension of both decreets, and we agreed, that as to the absolvitor a suspension of it was not competent, as we found 24th February 1741, Danish Asiatic Company against Earl of Morton, (vide Suspension.) 2do, As to the merits of the decreet, we agreed that no Court in Britain was bound to execute the decreets of the Privy Council by the act 16th Char. I. (as we found 2d December 1736, Eveleigh against Sir John Bruce, vide Jurisdiction;) but we thought the Judge-Admiral competent to try the lawfulness of the seizure of the ship, as was found in the case of Hamilton against the Dutch East India Company, and that the condemnation in Jamaica could not be pleaded in defence, because reversed upon appeal by the proper Court, as in the other case we must have repelled the defence on the condemnation there pleaded, had it been reversed in Batavia or in Holland; therefore we passed the bill as to the expenses in the first decreet, and as to both damages and expenses in the second.

See Commissaries of Edinburgh against Commissaries of Dunkeld, 21st July 1747, voce Jurisdiction.

See Creditors of Murray Kenninmond, 17th June 1742, voce Service and Confirmation.