Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Heriot of Ramorney v. -
Date: 21 November 1671
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It being controverted betwixt Heriot of Ramorney and, where a man who sells land, is obliged to give to the buyer a transumpt of the evidents before the Judge Ordinary, whether they might be transumed before the sheriff of the shire wherein the lands lie, or rather before the Lords;
It was alleged,—The sheriff being a pedaneous judge, the Officers of State (who must of necessity be called, where transuming is intended of his Majesty's charters and other writs under the great seal,) are not obliged to compear before him.
It was answered,—The calling of them was only dicis causa, and signified nothing. 2do, If there were necessity for calling them, then it might be done even before the sheriff by letters of supplement.
It was replied,—Since I had paid the full price and worth of the land, it is very just I should be pleased with the security; and, therefore, ne quid scrupuli insit, it should be done before the Lords; where, if any difficulty occur, the advice of men of law is at hand.
It was duplied,—That electio est debitoris, and, therefore, he has the choice of the judge before whom the same should be done. Next, if they will have it before the Lords, then that the charger may bear what farther expense they will be at in transuming them before the Lords than they would be if they did it before the sheriff. They added, it was most ordinary to transume before inferior judges.
This being taken to the Inner House, the Lords found thir evidents behoved to be transumed before themselves: not because the Officers of State must be called, (for they would not dip on that at this time,) but because the buyer behoved to be satisfied with the security, and this made it more firm and uncontroverted: only they recommended to the clerks not to exact the full rigour of the regulation, (viz. L.3 for the sheet,) but to be gentle.
Sir G. Lockhart said the Lords were like to the miller of Carstairs, drew all to themselves. And truly this decision has no shadow of reason but the clerks' advantage.
