Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Edgar of Wedderly v. Thomas Calderwood
Date: 6 December 1692
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In the complaint pursued by Edgar of Wedderly against Thomas Calderwood, in Dalkeith, for refunding his damage sustained by giving order to a messenger to poind him after a sist, upon a bill of suspension; which was most unwarrantable, and found so by a decreet of secret council against the messenger; and whereto the said Thomas was also called, and a decreet passed against him, on a circumduction of the term, for not deponing on his giving a commission to the messenger to poind after the stop; the Lords, upon a bill of suspension, finding the informality of the said decreet, they opened it, and having turned it to a libel, they reponed him to his oath, if he employed the messenger. But the pursuer declaring he would prove it aliunde, the Lords advised the decreet of Council, whether it was res judicata or not; and found, though Thomas Calderwood was neither condemned nor assoilyied in the decerniture, yet he was convened in the process, and it was expressly libelled, that he should take the horning out of the register, and refund Wedderly's expenses for his illegal poinding; and so, though it was not res judicata, yet Calderwood had the exceptio litis contestatœ, that it was tabled before the Privy Council, by the pursuer himself, and so could not be taken away till it came to a sentence there. So Calderwood was assoilyied ab hac instantia before the Session. And in regard he could not get the suspension past without consignation of the sums, the Lords allowed him now to get up his consigned money.
