Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Hog v. Geils Douglas, Relict of James Hamilton
1696 and
1697.
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1696. June 20.—John Hog, messenger, being deprived by the Lord Lyon, and the pursuivants, his brethren, and decerned to pay £ 1000 Scots to Geils Douglas, relict of James Hamilton, under-clerk, for suffering Mr George Campbell to escape, though he had accepted to execute a caption at her instance against him, on the pretence he would not break up Mr William Thomson, writer to the signet, his chamber-door, where he then lay hid;—he raised suspension and reduction of this decreet on sundry reasons;—the first whereof was, That, by the 46th Act of Parliament, 1587, the Lyon was only judge competent to messengers' malversations in their office, but not as to the civil effect of the party's damages; as was decided, 13th February 1668, Grierson against MacIlroy.
Answered, 1mo.—By the 21st Act, 1672, the Lyon's jurisdiction was now ex tended: Besides, John Hog did here prorogate, and acknowledge the Court,
by compearing and proponing other defences than a declinature.
Replied,—He did advocate the cause upon incompetency; and, it being remitted by the Lords, he behoved to enter in causa; and yet all he proponed was only against the malversation.
The Lords remitted to Lord Phesdo, who heard the cause, to call for the advocation and remit, and try the grounds thereof; and, if the whole cause was remitted; and if he defended only against the malversation, and not against the party's damages, except in so far as the same was a consequence of his prevarication; that, from these circumstances, it might appear whether it was a non suo judice, or if he had submitted to and homologated the Court.
Vol. I. Page 723.
1697. January 20.—Phesdo reported Mrs Hamilton against John Hog, messenger, mentioned 20th June 1696. The Lords now repelled the reason of reduction upon incompetency, in regard he had not declined the Lyon's jurisdiction in any part of the process; and the very advocation he raised did not run upon incompetency, but iniquity. But the Lords sustained his other reasons of reduction as sufficiently relevant to turn the Lyon's decreet into a libel, viz. That sundry of his bills and defences were not inserted in the decreet, and that it was without probation of the fact of his suffering the rebel to escape; for, though it was answered, That he all along in his defences acknowledged the same, yet, seeing this was only drawn by inferences, and not by a direct confession, therefore the Lords reponed him so far as yet to oblige the pursuer to prove her libel.
It was moved, Whether decreets in foro of inferior courts, being opened on a nullity, had the privilege introduced by the late regulations in favours of the decreets of Session, that it shall operate no farther but only to redress that nullity, and all the rest of the interlocutors to stand: It was thought they had not; —but this point was not decided.
