Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Earl of Tweeddale, Chancellor, v. William Erskine
1692 and
1693.
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1692. November 16.—In the competition between the Earl of Tweeddale, Lord Chancellor, as lord of the regality of Dumfermline, and admiral within that bounds, and Mr William Erskine, depute to the admiral, anent the right to a whale that ran in at the port of Limekilns; the Lords, ex officio, ordained either party to adduce what probation they pleased, for instructing who first attached the whale and attained the first possession of it. Skeen, de Verbor. Significat. voce Wreck, shows, by the English law, whales are inter regalia. And the Chancellor repeating a probation, led -before the Lords of Secret Council, that he apprehended the first possession, the President thought that it might be advised by the Lords; but others were of opinion, that such of the witnesses as are alive ought to be reexamined before the Lords. Which is true quoad probation taken by the sheriffs and other inferior courts; but not as to supreme judicatories, where the brocard, testibus et non testimoniis est credendum, takes not place.
Vol. I. Page 518.
December 6.—In the question between Mr William Erskine and the Earl of Tweeddale, about the whale, mentioned 16th November last, the Lords having considered the reference of the Privy Council, they would not premit the question of possession to the point of right, but would take them both in together; especially seeing they proponed peremptoriè on the Duke of Lenox's right of admiralty, from whom Sir William Erskine derived a deputation by progress; and that it should be found better than Tweeddale's.
Vol. I. Page 527.
1693. January 26.—The debate between the Earl of Tweeddale, Lord Chancellor, and Mr William Erskine, about the whale, mentioned 6th December 1692, was advised; and the first question was, Whether they should consider the point of right, or possession, first, or if they were to take them jointly and complexly. And the Lords considered, that they had forced them to debate the point of right; therefore, they resolved to begin with it. But then it occurred, they had not an idoneus contradictor in the field; for the Duke of Lennox being heritable admiral, and not called, they could not judge on his right, on the partial production made for him by Mr William Erskine, without his special mandate, (being out of the kingdom,)—viz. the king's letter in 1628, which was never perfected; and the ratification of Parliament in 1633, which gives no new right: therefore, all they could do was to find the Chancellor's right the best, for any thing yet seen. But this preference being of no value, they were allowed to be farther heard; and it was argued, whether such offices could have the benefit of a possessory judgment; for though such escheats occur but rarely, yet they had the daily exercise of the jurisdiction, by other acts of holding courts, judging prizes, granting passes and cockets, &c.
Vol. I. Page 551.
February 17.—In the case between the Earl of Tweeddale, Chancellor, and Mr William Erskine, about the whale, mentioned 26th January 1693, the Lords having advised the acts of possession adduced for the Chancellor, to prove he had exerced a jurisdiction of admiralty in his lordship of Dunfermling, and interrupted the high admiral's right; the Lords found his deeds of possession proven: though it was alleged they were, by his rights, as lord of the regality. For the Lords considered, where a man has two titles, the possession is always to be ascribed to that whereunto it most naturally belongs; and so found these fines and acts of Court were as admiral. This carried only by the President's vote.
Vol. I. Page 562.
February 23.—The Lords having advised the value of that whale, controverted between Mr William Erskine and the Chancellor, as mentioned 17th current, they decerned for 700 merks, as the price the Chancellor had sold it at; but with this quality, that if Mr William instructed that he got no more for it at the roup but 500 merks, they restricted it to that price.
