Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

William Auld
v.
Patrick Jack

1627. July 19 and 25; and 1628, Feb. 3.

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William Auld, executor dative ad omissa, to his mother, pursued Patrick Jack to make him payment of 33 barrels of salmon, or £20 for the price of ilk one of them, alleged resting owing by the said Patrick to umquhile James Jack, grandfather to the complainer. Alleged, Absolvitor, because the ground of his debate is only a judicial act, made 1584, before the commissary of Aberdeen, which is null in law, and can produce no action in favours of the complainer, it being neither contract, bond, decreet, nor sentence of a judge ordinary, and so cannot oblige the party alleged bound thereby: Likeas, by Act of Parliament, 1574, all writs of importance should be subscribed by the parties, or two notaries, at their command, before four witnesses. Replied, That the allegeance ought to be repelled, in respect of the act produced, which was at the time the ordinary form of that court, as can be verified by great numbers of acts yet extant: And further, the excipient has in effect homologated the said act, by his compearance thereafter before the said commissary, and acknowledging the said debt, and so cannot quarrel it. Duplied, That the custom of the court cannot be respected, being contrary to law and the Act of Parliament, 1579. 2do. The homologation not relevant, quia laborat eodem vitio, it being only done by another judicial act, without his having subscribed any act of ratification of it. The Lords repelled the exception, and sustained process upon the said judicial act.

The reason why this judicial Act was sustained, was in respect of a decreet of transferring of the same Act, given against the excipient, 1590; which decreet of transferring stood unreduced. Upon the 25th July following, some nullities being proponed by way of exception against the decreet of transferring, viz. That it had not the Act transferred ingrossed therein, according to the custom of all transferrings; 2do. That it was given without any probation, or any cause insert therein; for, it being founded upon a testament, which was the pursuer's title at the time, (for he sought that Act to be transferred in him active as executor to his mother Catharin Chalmers, to whom the debt was owing,) there was no mention made of the production of the said testament in the decreet of transferring. The Lords, notwithstanding of these nullities, would sustain the decreet of transferring ad hunc effectum, to make the first judicial Act subsist.

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