Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Wemyss of Unthank v. Patrick Duncan and Andrew Byres
Date: 13 January 1705
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Sir Alexander Erskine of Cambo, Lyon King at Arms, being debtor to Wemyss of Unthank, by a bond of 1000 merks; and he having raised caption thereon, and first required Patrick Duncan, messenger in Falkland, and then Andrew Byres, messenger in Coupar, to take him, they refused, at least declined the same, as unwilling to offend their master; whereupon he had taken instruments against them; and, having no other remedy left, gave in a bill to the Lords, representing the foresaid matter of fact, and that it was of dangerous consequence to all the lieges if the execution of justice were this way stopt; therefore craving a summary warrant to cite them, that they and their cautioners may be decerned to pay him his damage, being the sum charged for, because of their contempt and disobedience, and that the Lords may deprive them of their offices for their malversation.
The thing was looked upon as an ill preparative and example; and it being suggested, that, though we deprived, yet he would admit and license them of new; but it was thought he would subject himself to farther censure if he thus attempted to evacuate the Lords' sentence of deprivation. The next inspection that occurred was, How this sentence could be so intimated and published that it might come to the lieges' knowledge, for, without that, they were in bona fide to employ them still; and their executions, though deprived, would subsist as valid, being holden and reputed by the law; Barbarius Philippus, D. de Offic. Prœtor. where a slave being elected praetor, his actions and edicts were sustained ob bonum publicum. Some thought the deprivation behoved to be published at the market-cross where they officiate, and likewise recorded in the Lyon's books.
