Days, how computed. - Induciæ in a charge of horning. - Baron decrees. - Citations pro confesso. - Criminal sentences. - Induciæ before inferior courts. - Reductions and improbations. - Privileged summons. - Decree-arbitral. - Citation of tutors and curators.
Balfour v. Hay
Date: 23 December 1701 Case No. No 17.
A person was cited before a Commissary, upon two or three days. The Lords refused to advocate the cause, but allowed him eight days to propone defences.
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Mr James Balfour of Randerston pursues Peter Hay of Leys before the Commissary of St Andrew's, for scandalizing and defaming him, by saying in some companies that Randerston had forged and put to his subscription to the juncture and margin of a retrocession; and therefore craves that he may stand in sackcloth at the kirk door, and sit on the repenting stool, and at the market cross crave him pardon, and pay him L. 3000 of a pecuniary mulct. Leyes advocates on this reason, that the Commissary had shown both partiality and iniquity; that he had issued out an order to cite him on two or three days time, whereas, by the 19th act of Parliament 1621, inferior judges are ordained to issue out citations on 15 days citation, and the act 72d 1540 imports the same.—Answered, The said paragraph does not seem to be an act of Parliament, but only an act of Council; but, however, it is utterly in desuetude, and the Commissaries make their days of compearance shorter or longer according to the party's distance, and here Leyes was personally apprehended within the burgh of St Andrew's.——The Lords found the act in desuetude, and therefore repelled the reason of advocation, and remitted the cause back to the Commissaries, who are judges in prima instantia to scandals. Some were for remitting it with instruction, but it was thought, if he exceeded, the Lords could rectify it upon new application to be made to them afterwards.
On a bill by Leyes, the Lords remitted it with this direction to the Commissary, to allow him a competent time to propone defences, and that it be not under eight days.
Fol. Dic. v. 1. p. 466. Fountainhall, v. 2. p. 132.
