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.

The Laird of Wauchton
v.
The Laird of Aitkin

Date: 6 July 1633

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The Laird of Wauchton having set a tack of some lands to the Laird of Aitkin, he pursued him for finding caution for payment of the tack-duty, or else to remove. The defender being absent, the question was, Whether the summons should abide continuation or not? The advocate for the pursuer maintained stiffly that it needed not be continued, seeing he proved all by production of the contract betwixt the parties; and this action was of the same nature with a removing, which abides no continuation. Yet the Lords found it behoved to be continued, conform to the universal custom kept before: For although, in effect, it be a removing in case of not finding caution, yet it were hard that it should be as much privileged as removings, before which there must be a warning upon forty days, in which space tenants may provide for themselves; where here, upon six days, they might be removed, if there were no necessity of twice citation. Besides, in declarators of irritant clauses, where all is proven instantly by production of the writs, yet there is a necessity of continuation, lest a man should be put from his right too summarily.

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