BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
The Earl of Sutherland v Arbuthnot of Knox and Sir Thomas Burnet of Leyes. [1702] 4 Brn 535 (21 November 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Brn040535-0032.html Cite as:
[1702] 4 Brn 535
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Sutherland v. Arbuthnot of Knox and Sir Thomas Burnet of Leyes
Date: 21 November 1702
Click here to view a pdf copy of this documet : PDF Copy
The Earl of Sutherland pursued Arbuthnot of Knox, as tutor to the Viscount his nephew, and Sir Thomas Burnet of Leyes, his cautioner, for some debts. Compensation was craved, in respect it was offered to be proven, That the Earl had intromitted with sundry lock-fast trunks and bundles of goods out of the house of Arbuthnot, and carried them away. The Earl acknowledged the taking the Viscountess his daughter's paraphernalia, and habiliments of her body. But they alleging farther intromission, the Earl took instruments thereon, and protested, seeing the allegeance was defamatory, if they succumbed, they should be liable to him in reparation of his honour. And they having failed in the probation, he circumduced the term, and extracted this decreet thereon some years ago; and now gives in a bill to the Lords, complaining, That, by such a base allegeance, they had done what in them lay to wound his reputation, if it had not been above all attack; and therefore craved they might be fined in a thousand pounds sterling, and what further censure the Lords should inflict upon them, as having incurred the prœmunire of scandalum magnatum.
Answered,—They were ready to purge themselves upon oath, that they did not propone it animo injuriandi, but only for preservation of their pupil's right. 2do. They were not obliged now to answer on a bill, there being no more process depending, but terminated by an extracted decreet; and, where lis est finita, parties cannot be drawn in without a new citation. 3tio, There can be no just exception taken at a legal allegeance, such as vitious intromission is; and as our law has introduced that passive title, Qui sapit delictum, and is the same with the crimen expilatœ hœreditatis in the Roman law, so no man can be censured for proponing it, though he succumb, if he was willing to give his oath of calumny, that he had reason to propone it. And there is neither law nor statute in this kingdom defining what shall be esteemed and reputed scandalum magnatum, or determining its punishment, though these cases might well be pursued before the Privy Council, who, no doubt, would give a suitable redress; lesser scandals and private verbal injuries belonging to the cognition of the commissaries.
The Lords, finding the decreet was extracted, refused to take in the Earl's bill of complaint hoc ordine, reserving action as accords.
The English have such a statute: and, besides many other instances, I remember, that, in November 1682, the Duke of York, afterwards King James, caused his attorney pursue Sheriff Pilkington on this scandalum magnatum, For calling him a Papist, and that he knew of the burning of the city of London in 1666 by the Papists; and he got him fined in £100,000 sterling of damages, for reparation of the foresaid slander.
