Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Geoiige Young v. John Hay and Andrew Ker
Date: 23 January 1679
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In the wrongous imprisonment and oppression pursued by George Young, late bailie in Winchburgh, against Mr John Hay, sheriff-depute of Linlithgow, and Mr Andrew Ker his clerk; the Lords found the libel relevant, and proven by the defender's own answers, as much as might infer an arbitrary punishment; in so far as Woodcockdale confessed there was such an act in their shire, discharging any of the inhabitants of the sheriffdom to pursue before any other court, except themselves and the commissaries. And they found it an absurd act, and prejudicial to regalities; (yet it is known that several courts and judicatories in Scotland make such acts;) and that he justified and defended the fining of George Young in fifty pounds Scots, and his imprisoning him on that act. Therefore they rebuked him publicly, and ordained him, so soon as he went home, to raze said act out of the sheriff-court books. And fined him in L.100 Scots, to be given to George Young for his charges and expenses. Sub velamine et prætextu officii judicem crimen committere is a greater crime than in another, says Bartolus. Sub umbra juris sciential scope perniciose erratur, l.91, § 3, D. de V. O.
The libel concluded deprivations against the clerk, upon the 81st Act, Parl. 1540, imposing that penalty on clerks that refuse an extract of instruments taken in their hands. In this cause the Council was displeased with George Young; because, in purging the witnesses of partial counsel, it appeared they had got money; whereas it is allowed to give witnesses nothing till after they have deponed: and, though a party may lawfully bear his witnesses' expenses, yet here George had given some of them two dollars, which was thought exorbitant; albeit they had attended several Council days, and refused to come in without it; yet a caption could have forced them. See of witnesses' expenses, June 1672.
Vol. I. Page 36.
Anent the Iniquity of Inferior Judges.
The Lords have found, that where the iniquity and partiality of an inferior judge, or clerk, is very gross and palpable, so that it looks like dolus or lata culpa, that they will sustain action, and will find such a judge or clerk liable for repayment of the sum so unjustly decerned. Si dolo litem suam fecerit judex, tenetur parti læsæ in damnum et inter esse, I. ult. de Extr. Cognit. See Gayl. de Arrestis Imper. c. 14, lib. 1, obs, 153, et lib. 2, obs. 76. And I hear that the Lords lately found a sheriff liable to a debt for pronouncing an unjust decreet. Vide tit. Dig. de Mag. Conveniendis.
The Lords have lately permitted a pursuer to advocate his own cause upon iniquity done him. See July 1672, Bell.
