Tennent, Young, and Others, v. Sandy, Procurator-Fiscal of the Regality of Ogilface
Date: 19 December 1676 Case No. No 17.
Found that a horning directed by the Secret Council, upon a decree of a court of regality, was inept.
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In a declarator of a liferent escheat, it was alleged, That there could be no escheat upon the horning libelled; because it was upon letters directed by the Secret Council, upon a decreet of a Regality court; and, by the acts of Parliament, the Lords of Session are only warranted to direct letters of horning summarily upon the decreets of Sheriffs and Bailies of Regality and other inferior judges.
The Lords thought that the Council could not direct letters of horning upon the said decreet; seeing, before the acts of Parliament, letters of horning could not be directed upon the decreets of inferior judges summarily, without a decreet conform before the Lords of Session; and statutes being stricti juris, the Council could not direct letters, unless by the same statute they had been warranted to that effect; and it appears, that the said statute was founded upon good reason and considerations, though they be not expressed, viz. That the Lords of Session are always sitting in the time of Session; and in vacance, there is some of their number appointed to receive and pass bills of suspension, if there be cause; whereas the Council sitteth but once a-week ordinarily in Session time, and in vacance but thrice; 2do, The Lords do not pass suspensions but upon good reasons, and they are to consider the said decreets, which is not proper for the Council; 3tio, As suspensions are raised of the said decreets, so oft times there is a necessity of raising reductions, and the Lords of Council are not competent judges to the reduction of the said decreets. But the Lords thought not fit that there should be a question betwixt them and the Council concerning their privilege; and therefore did forbear to give answer until some accommodation should be endeavoured. And it was proposed by some, that the decreet of the Regality court being for keeping of conventicles, and that practice concerning so much the peace of the country, that all disturbance thereby might be prevented; and, upon that account, it being recommended to the Council, by act of Parliament, that they should see the laws against conventicles put effectually in execution; the Council, as they might convene the contraveners before themselves, may commissionate the inferior courts to proceed as their delegates; and upon their decreets given by them as delegates, that they may direct letters of horning.
Reporter, Treasurer-depute.
Dirleton, No 406. p. 200.
