Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Edward Ruthven, Son to the Lord Forrester
v.
The Creditors of The Earl of Bramford

Date: 15 November 1672

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There being a bill given in, in name of the said Edward, making mention, that, by an Act of the last session of Parliament, it was ordained that his name should be inserted in the decreets to be extracted, which were obtained before the Lords of Session, at the instance of the Countess of Bramford and the Lord and Lady Forresters, against the Earl of Callender and Others.

It was alleged for the creditors of the Earl of Bramford, as likewise for the creditors of the Lord Forrester, That that Act of Parliament being only given in relation to a reduction of the Countess of Bramford's right, by virtue of a contract betwixt her and the Lady Forrester, as having right to the Earl of Bramford's debts, to which there was no person interested called but the said Countess;—it could be no warrant for extracting decreets in his name, in prejudice of any other person; and so fell under the Act salvo jure; and could not prejudge the creditors of Bramford, or the Lord Forrester, who had contracted with them in contemplation of his lady's right by the Act of Restitution.

It was replied, That special Acts of Parliament, restoring against forefaultures, can never be questioned by any person, upon pretence that they were not cited, neither can they fall under the Act salvo jure; as hath been found formerly by the Lords, in the cases of the Earl of Rothess, and of John Stewart of Coldinghame. And albeit the said decreets were against the law for the time, or informal, yet the Lords of Session are nowise competent judges, there being none that have authority to cognosce upon them but a Parliament.

The Lords having considered the Act of Parliament, that it was clear and positive that the petitioner's name should be inserted in all their decreets, as to which they were not in casu dubio, that needed interpretation, they did ordain that decreet to be so extracted. But, how far the same might import in law, and prejudge the lawful creditors of the Earl of Bramford, or the Lord Forrester, they declared they would not meddle hoc loco: but, that, by their ordinance, they intended no more but that the simple name of the petitioner should be inserted, in obedience to the Act of Parliament requiring the same; and that notwithstanding the Act of Parliament was not of the nature of an assignation to a depending process, quo casu, if the defender could allege nothing against the assignee's right, the Lords never refuse to grant extracts in his name; whereas, in this case, the Act of Parliament did not rescind the prior act of restitution in favours of the representatives of the Earl of Bramford, or declared that the petitioner had a better right; which was impossible in law; but only ordained his name to be inserted in all decreets, albeit recovered at the instance of other parties; which is against all law and custom.

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