Scottish Court of Session Decisions

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.

George Home of Wedderburn
v.
Joseph Home of Nynewells

1710. December SO.

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Mr Joseph Home of Nynewells, holding some lands of George Home of Wedderburn, by a very strict reddendo, viz. £80 Scots of yearly feu-duty, under irritances in case of not punctual payment, suit and presence at his three head-courts, astriction to his mill of Hutton, &c. then follows this clause,—“et prce-dictus Josephus Home serviet mild et hteredibus meis tempore proclamationum regiarum, idque suis propriis expensis; sed in aliis meis privatis servitiis, impensis meis, cum ad id requiretur.” In 1709, the Queen's proclamation requiring all the heritors and freeholders to attend the criminal Lords of Justiciary, at their respective circuit courts, (from which they are now freed by a posterior British Act of Parliament;) Wedderburn did, in May that year, send a letter to Joseph Home of Nynewells, to attend him to Jedburgh, to wait on the Lords of Justiciary there, conform to the tenor of his charter; who did not obey, but went alongst with the shire of Berwick to the said circuit-court: for which contempt and disobedience Wedderburn sent his baron officer to cite Nynewells, his vassal, to compear at his baron-court to be held at Hutton; and, in regard of his absence, he fines him in £50 Scots for his contumacy. Nynewells, being-charged on this decreet, suspends on thir reasons: Imo, That it was in absence, and is null, the citation being unwarrantable at his house of Nynewells, which is not within Wedderburn's barony nor jurisdiction, but holds of the Queen, and so is plainly extra territorium; and his baron-officer might as well come to Lothian, and cite any of his master's vassals dwelling there; and so extra territorium jus dicenti impune non paretur. 2do, The sentence being pronounced in his own court, he was both judge and party; et nemo potest jus sibi dicere. 3tio, Nynewells being the Queen's vassal as well as Wedderburn's, and called out by the proclamation to attend the Sheriff, his duty to the supreme superior superseded and dissolved his obligation to Wedderburn; even as his marriage in ward-holding falls to the Queen, and not to any subaltern superior. Likeas, the demand was contrary to law; which requires all persons to come to courts in a quiet and sober manner, and to bring no more with them but their daily household and familiars,—Act 82d, 1457; and that they shall be guilty of the convocation of the lieges who do it,—Act 140th, 1584. 4to, Though the charter oblige him to attend his superior, yet it has no penalty annexed in case of failyie; so they might as well have fined in £500 as £50: and the most can be acclaimed is damage and intezest; which is none at all, but a mere punctilio of honour.

Answered,—That though the citation given him was not within the feu-lands which Nynewells holds of him, yet it was sufficient; because, by his charter, he is bound to attend his courts any where within the shire of Berwick, when required; so it does not import whether he dwelt on the lands holden of Wedder-burn or elsewhere.

Replied,—That clause only relates to personal suit or presence, and to decern for his feu-duties, but noways for extrinsic services; and as his baron-officer could not legally poind for that fine, except within the ground of the barony, so neither could he cite him, not dwelling on Wedderburn's lands; and the laws of Regiam Majestatem discharge any freeman to be called to his over-lord's court, without the King's brief.

Wedderburn answered to the second reason of suspension,—That he may very well judge his vassals by his depute; and our Acts of Parliament declare, that where the principal sheriff) steward, or bailie, is pursuer, they may hold a court and name a depute,—which he did; and he may as well fine him for his contempt as decern him in his feu-duties, the law making no distinction, nee nos distingucrc debemus. To the third,—That Nynewells' duty to his sovereign, and to him as his immediate superior, were very consistent and compatible; for, by attending him to the circuit, he obeyed the Queen's proclamation; and by neglecting the requisition he plainly contravened the clause in his charter. And the Lords, in 1G80, decided the parallel case at this same Wedderburn's instance, against Park of Foulfordlees, another of his vassals, who being required to wait on him to the King's host at Bothwelbridge, in June 1679, the Lords fined him, though he founded on the 31st Act 1491, that he was only to attend the sheriff or the King's Captain, as is marked by Sir George Mackenzie, in his observations on that act. If a charter bore a clause, that he should follow his superior contra, omnes mortales, that would be repudiated as contrary to law and the allegeance he owes his prince; but this clause, of going alongst with his superior to the circuit, noways interferes with his duty as a subject.

Replied,—That Foulfoordlies was justly fined, for he had no lands holden of the crown, but was solely Wedderburn's vassal; but Nynewells having lands holden of the Queen, he cannot both serve God and mammon; and the 31st Act 1491 imposes only forty shillings Scots for absence from weapon-shawings, and yet he would exact £50.

But in King Charles the Second's reign, I remember absence from the host was fined in a half or third of a year's valued rent of their lands. See Act 82d, 1587. It is true, when the demands of ward superiors were in observance conform to the old feudal law, these services were strictly required; but these rude Longobardic customs are now exceedingly mitigated. Superiorities now are more substantial, and only considered as they afford profit and money; the shadowy part are flown away, feus being no more gratuitous, but acquired for onerous adequate causes, and their slavish dependencies much laid aside, unless in the Highland clans. And the Lords, in this case, thought Nynewells, in attending the sheriff, did no wrong to Wedderburn, his superior.

However, they decided nothing but the first objection against the execution; and found the baron could not cite extra territorium; and therefore found his decreet null, and would not so much as sustain it as a libel, but that he behoved to commence a process of new; whereas in favourable cases they only turn the decreet into a libel, and allow them to debate, tanquam in libello, without a new summons or citation.

Vol. II. Page 617.