Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Agnes Alexander, Relict of Thomas Mark, v. Thomas Haddoway
Date: 9 February 1665
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Agnes Alexander confirms herself executrix to Thomas Mark, wright in Wolmet, her spouse; and so pursues Thomas Haddoway before the Sheriff of Edinburgh, to redeliver to her a copper cauldron of twenty-four gallons, in as good case as the same was when he got it; or to pay 1001 merks as the price of it. The Sheriff decerns him to do it; whereupon she raises a precept, and causes charge him. He suspends the precept, 1mo, because he is most unjustly decerned, seeing that Nicoll, brother, and cedent of the said cauldron to the pursuer's husband, being addebted to the suspender in L.65, &c. he pursued him before the Baron bailie of the Canongate, for the same. They decern Nicoll to pay it; by virtue of which decreet, the suspender caused lawfully poind and apprise the said cauldron, as the instrument of poinding taken thereupon proves; after which, if Nicoll assigned the said cauldron to his brother Thomas, he knows not, but there was no intimation of any assignation made to him before the poinding. 2do, Mr. Robert Scot, Sheriff-Clerk, behaved himself most partially and maliciously in this matter, as if he had been judge, procurator, and party. Item, that he was charged, contrary to Mr. William Wallace, Sheriff-Depute, his order and express prohibition. 3tio, This decreet is null, because pronounced in time of vacance, without a dispensation; Item, because pronounced without probation, that either the said cauldron was only entrusted to the suspender by the said Nicoll, or that the said charger, his spouse, ever required this cauldron of him before his lawful poinding of it. On thir same reasons, a summons of reduction of the said decreet is intended. At the calling of this suspension, the suspender insisted on the first reason. Whereunto it was answered, that the said poinding was null, because executed extra territorium, without the privilege of the Canongate. 2do, He opponed the Sheriff's decreet, wherein that same defence is proponed and repelled, in respect of a reply made thereto.
Which the Lords having considered, they found the letters orderly proceeded; and assoilyied from the reduction.
Suspender, Mr. Thomas Learmonth.Alt. Mr. Patrick Oliphant.
Signet MS. No. 58, folio 58.
