Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Sir Andrew Kennedy, Conservator, &c Supplicant,
v.
Sir Alexander Cuming of Culter

Date: 21 July 1711

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Sir Andrew Kennedy gave in a bill representing, that the decreet pronounced against him in favours of Sir Alexander Cuming, 9th December, 1707, was, upon the petitioner's appeal, reversed by the Lords Spiritual and Temporal in Parliament assembled: who, 19th April last, declared and adjudged, that the commission granted by her Majesty to Sir Alexander Cuming is void, and that the commission granted the petitioner and John Vere Kennedy, his son, is still subsisting in full force; and ordered the Lords of Session to direct the expenses in these suits to be taxed according to the course of their Court, and paid to the petitioner by Sir Alexander Cuming. Pursuant to which decree of the House of Peers, the petitioner, 14th of June last, caused intimation to be made under form of instrument to Sir Alexander Cuming, that he was to insist, before the Lords in Scotland, the fifth of July instant, conform to the said judgment of the Lords of Parliament. Therefore the petitioner craved, that the Lords, in compliance with the said ordinance of Parliament, would please to direct and tax the said expenses, conform to an account extending to L.1500 Sterling in gross, and decern Sir Alexander Cuming to make payment thereof to the petitioner.

Some of the Lords were of opinion, that they might proceed to tax the petitioner's expenses without citing Sir Alexander Cuming, by order of their Lordships. Because it is not left to the Lords to determine if expenses shall be modified or not; but they are ordered to tax the expenses according to the course of their Court, which is to modify expenses postquam conclusum est in causa, before extracting decreet, without any new citation to the party to be decerned: and considering the connexion of the process first intended before the session, with the appeal, judgment, and order of the Peers to tax the expenses; both parties are now before the Session in the same state as if Sir Andrew Kennedy had prevailed against Sir Alexander Cuming in that Court. Besides, Sir Alexander Cuming being present in the House of Peers at pronouncing the decree, he was warned, apud acta, that the Lords of Session were to tax the expenses; which he was farther certiorated of, by the notorial instrument. But the plurality of the Lords refused to enter upon the consideration of the petitioner's expenses, till Sir Alexander Cuming be legally cited by an order of the Session, that he may come prepared to object against the quantity of the expenses to be modified: There being no process in dependence before the Session, the same having terminated by an extracted decreet; and the order to the Lords is not to tax expenses, but according to the course of their Court, which is by process upon lawful citation. Sir Alexander's hearing the decree of the House of Peers was no legal certioration, the day of compearance not being therein prefixed. Again, the intimation by a notary was insufficient; that being only a private deed, without any authority. And Sir Alexander's private knowledge cannot be considered as equivalent to a citation. Vide June 26, 1711.

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