Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 NOTICES of APPEALS to the BRITISH PARLIAMENT, for remeid of Law, given by Fountainhall, in addition to those printed in Morison's Dictionary and this Supplement.

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1709. February 22.—Sir Alexander Brand's son, by a commission from his father, gave in a protest, for remeid of law, to the British Parliament, against George Mackenzie of Stonehyve, anent the price of the arms due by Sir Alexander, and the tack-duty of Orkney, assigned to the said George; which he contended was paid by the debt owing to him by the public.

Vol. II. Page 496.

1710. February 25.—John Baillie of Walston gave in a protest and appeal, in the cause against Lockhart of Carnwath, mentioned supra, 23d December 1709.

Vol. II. Page 573.

1710. July 29.—Some appeals and protests were given in this day to the British Parliament. I. One by Sir William Hope of Balcomy against the interlocutors sustaining the execution of the inhibition, and repelling the nullities, mentioned supra, 25th July 1710. II. Johnston of Garmoch against the interlocutor of the 12th current, see page 8O7. III. The third was by Mr Dunbar, son to Sir G. Dunbar of Durne, against Colonel Erskine, about the furnishing advanced to the forces, of corn and straw, in that shire. IV. Marion Inglis against Jean Alexander, relict of Alexander Inglis, brewer in Edinburgh, reclaiming against the Lords' interlocutor finding that the said Jean liferented the provision left by her uncle to her.

Vol. II. Page 594.

1711. February 15.—Sundry appeals or protests were given in. I. Margaret Lesly and Andrew Johnston against William Dick of Grange, anent Sir James Lesly's tailyie, mentioned supra, 15th December 1710. II. An appeal was given in, (but it was not from them as Lords of Session, but as commissioners for plantation of kirks and valuation of teinds,) by David Denholme of Cranshaws against Mr John Campbell, minister there, and the other heritors, alleging he was grieved by overvaluing his tithes, and refusing the usual deductions.

Some asked if appeals lay from it, seeing it was a commission of Parliament. But the Parliament of England will not readily decline themselves.

Vol. II. Page 637.

1711. February 28.—Towards the end of this Session there were sundry more appeals given in to the Lords, for remeid of law, to the British Parliament. I. Milne of Balvillo against the Minister and Heritors of the Parish of Dun, see page 834. II. Grace Douglass, daughter to Mr James Douglass of Earnslaw, and one Gemmil, against the Creditors of Mr Alexander Paterson of Caver-hill, whom the Lords had preferred to her. III. John Glassels, merchant in London, against John Henry, cordiner in Edinburgh, competing for a sum in the hands of the Equivalent, to which the Lords preferred Henry, as arrester and executor-creditor, to Glassels, as his brother's assignee. IV. Forbes of Waterston against the Earl of Aberdeen his uncle, see page 834.

I have marked no less than ten protests this winter Session. They are turned more frequent and numerous since the Union than they were before, though access now is both more difficult and expensive than the discussing them before our own Parliaments were. The reason may be, first, To concuss the victor to a composition, rather than undertake a tedious uncertain journey to London. 2do, They have this advantage now, that how soon it is tabled in the House of Peers all execution is stopt; whereas with us they were not suspensive of the sentence, but only devolutive.

Vol. II. Page 643.

1712. February 29.—I Have marked, this winter Session, sundry appeals supra. Now I have reserved all the rest for this place, to put them together. I. James Dumbar, husband to Elisabeth Dick, Lady Penkill. Being separate, and having divided her jointure equally betwixt them; and, on the faith of this alimentary provision, Thomas Couts having furnished and maintained Dumbar in necessaries; a competition arose betwixt them, and James Hutchison, writer to the signet, and their factor for uplifting the jointure; and being creditor to Dumbar, the Lords preferred him to Couts, Dumbar's assignee. They protested for remeid of law; their debt being alimentary, and Hutchison's not so privileged. II; Charles Jack against Edward Laing, skipper in Leith, his son-in-law, see page 896. III. James Crawford, against Archibald Crawford, (both, of them Ardmillan's grand-children,) protested against two interlocutors; the one finding that the brocard, minor non tenetur placitare, took not place here, seeing he was quarrelled super dolo paterno; and the second, finding a sheet was cut out of the disposition, and a new one, containing a reversion, foisted into its place. Vid. 31st January 1710. IV. Gordon and Burnet, chirurgeon-apothecaries in Aberdeen, against the Dean of Guild and other Magisstrates there, protested against the interlocutor finding they are not obliged to receive them as guild-brothers, nor to allow them to trade as merchants, unless they renounce their calling as surgeon-apothecaries. Vide supra, 21st December 1711. V. Doctor Middleton and Mr William Simson, professors at Aberdeen, protest against the interlocutor, mentioned supra, 21st December 1711. VI. Campbell of Gairclach against James Farquhar of Gilmillscroft, see page 880. VII. Forbes of Ballogy against Forbes of Waterton, protests for the Lords finding him liable to relieve, though Waterton, as tutor to Tolquhon, had not counted. VIII. Waterton against Ballogy, for assoilyieing Ballogy from the penalty contained in the contract of agreement betwixt them. IX. Mr William Gordon of Balcomy against Sir William Hope, for declaring my Lord Balcomy bankrupt forty years after his death; and for sustaining Mr Mark Lermont's right; though it was offered to be proven that Mr Robert Lermont, his author, was paid by his intromissions. X. Sir James Sinclair of Dumbaith protests against two interlocutors; one in favours of Helen Monro, his brother Stempster's relict, preferring her on her contract; and the others in favours of Anna Sinclair his sister, and John Sinclair of Ulbster her assignee, on her bond of provision and. its bygone annualrent. XI. The Lady Greenock against Sir John Shaw her son, because the Lords refused her a diligence, to cause her son produce a disposition of her lands of Carnock, made by her to Patrick Houston. XII, The Lady Semple protests against Colonel John Buchan, for not sustaining the Exchequer's decreet as res judicata; but ordaining her to instruct her claim before the Lords, and reproduce her documents there. XIII. Sir Samuel Forbes of Foveran against the interlocutor supra, 14th February 1712, see page 902.

By this number of appeals we see they increase every year, to the great impoverishing and detriment of this nation.

Vol. II. Page 734.

1712. July 30.—The following appeals and protests for remeid of law were given in this day:—I. Borthwick of Hartside against his Sisters; who pursued him for their portions; and he defended on a tailyie with irritancies, and that the tochers were exorbitant, considering the estate; which allegeance the Lords had repelled. II. The Lady Ormiston against Hamilton of Bangour, see page 885. III. Sir George Weir of Blackwood against Weir of Kerse; because the Lords had found Kerse had right to a part of Sir George's burial-place in the kirk of Lismahago. IV. Charles Menzies of Kinmundy against Menzies his nieces, and John Muir, see page 900. V. Carstairs of Kinneuchar against Dick and Erskine, for finding him passive liable, supra, 8th July 1712. VI. One Hunter against Sir James Dunbar of Mochrum, about a trust and compensation. This protest was given in by the man's wife; which was thought indecent, the common law excluding women from all judicial acts, on the occasion of one Calphurnia's confidence, lit. de Postulando; and it being easy to employ her writer or agent; but it was let pass without notice. VII. The skinners and furriers of Edinburgh against M'Milian and other country fleshers, for exposing their beasts' hides to the market; vide supra, 10th July 1712. VIII. Mr William Gordon of Balcomy, and George his son, against Sir William Hope; because he is not duly ranked on the said estate as a creditor. IX. Sir Andrew Kennedy against Sir Alexander Cuming, see page 922. X. William Turner the notary against Ross of Tillisnaught, see page 812. XL Isobel Moncrieff) in Bruntisland, against William Thomson of Prior-Letham, her son; because the Lords had modified 200 merks of aliment to him out of her jointure, though she offered to prove she had not so much left behind; but she had fallen into an opulent executry by her brother Moncrieff of Sauchop's death. XII. The Lord and Lady Hawley against the Earl of Dalhousie; because he had got a decreet to remove him from the castle, yards, and parks, by the Ordinary's sentence in the Outer House; and the Lords, on the Earl's bill, had stopt it till the bill should be answered in November.

Vol. II. Page 768.