Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Earl of Sutherland v. The Earls of Erroll and Marshell
1671and
1672.
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1671. July 7.—There is a declarator raised at the instance of the Earl of Sutherland against the Earls of Erroll and Marshell, for declaring that the precedency both in Parliament, Council, and other places, belongs to him; together with an improbation of all such writs as any way may instruct their antiquity beyond his, &c.
Advocates' MS. No. 206, folio 103.
November 24.—The haill terms of the improbation mentioned supra at No. 206, at Sutherland's instance against Erroll and Marshell, for the precedency, being run, certification was this day granted against all patents of honour, or other writs whatsoever, granted to the said Earls, which can any ways instruct their precedency, because they were not produced; but for any other writs that could adminicle the same or collaterally speak of the said Earls, belonging to other persons, refuses certification against these. But thought the said Earls qua Constable and qua Marshell to have the place, at least will not dispute thereon, because Sutherland's summons is not against them qua tales but only as Earls: so that this contest was only for the Ladies their place; for the Constabulary and Marischalate being personal dignities, their Ladies take no place thereby; but the Countess of Sutherland (if he be an older Earl) will take the place of them. It was judged a new practique to admit certification against patents; which are in public custody, and that the surest and most noble of all others, viz. the records of Parliament.
Advocates' MS. No. 271, folio 115.
1672. January 16.—My Lord Erroll's procurators having stopped the certification granted supra at No. 271, against all patents of honour, or other writs granted immediately and directly to himself and his predecessors, Earls of Erroll, in so far as they could instruct precedency before Sutherland; and they being of new heard upon that point, it was alleged for Erroll, that no certification could be admitted, because patents of honour were not the subject matter of improbations nor certifications, unless the pursuer laid claim to the defender's title of honour, whereby he and his predecessors are created or designed Earls of Erroll, which is not the case. And in an improbation the defender's and pursuer's rights and interests must be in eodem subjecto, which is not here; the pursuer's title of honour and the defender's being things quite different, and which may both subsist as res mere disparatæ. And in an improbation the pursuer and defender must both be pretenders to dominion in the thing concerning which improbation is moved; as for instance, in improbation of rights of lands the pursuer must libel he stands infeft in these lands, and the defender's rights called for must be rignts of infeftment, or such rights as may affect the lands wherein the pursuer libels he stands infeft, else his title will not be sustained, nor any certification granted; and the only proper way to pursue precedency is by a declarator.
Replied, though the pursuer and defenders' title were different things, yet he had good interest to pursue this improbation, because precedency which consequently arose from their patents, was the subject matter of the debate.
See the answers to this and the other replies in the information.
The Lords (totis viribus obnitente præside) found such writs as patents and the like were not the subject matter of a certification, because the pursuer's and defenders' rights were not circa idem. And my Lord Advocate reasoned against the pursuer's consequential interest, that if it were enough to sustain the admitting a certification, then, by the same rule, a man only served heir to his father might crave improbation or certification against writs granted by his goodsire or others, though he is not served heir to them, there being a good consequential interest. 2do, A man infeft in a mill might upon that ground crave certification against the evidents of another mill near him, by which he finds himself hugely grieved and prejudged in the thirl or sucken of his mill. 3tio, One man having a fair might by this account improve the writs of another heritor's fair, whereby he finds his customs diminished; and yet all thir are absurd.
