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.
Mullikins v. Sharp of Hoddam and Coupland of Collaston
Date: 27 June 1706
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Lord Prestonhall reported Mullikins against Sharp of Hoddam and Couplancl of Collaston. Thir two gentlemen, as having a right to the lands of Crookmuir, warn John and Andrew Mullikins, the tenants thereof, put in by the heritor, to remove at Whitsunday 1705; and a process of removing either being intented, or feared, before Mr Macnaught, bailie of the regality of Terreigles, within which jurisdiction the lands lay, there is an advocation obtained, and produced to Thomas Martin, clerk to the said regality-court, on the 19th May 1705, and marked as judicially admitted by him in January 1706. There is a decreet of removing pronounced against the foresaid two persons; and, a suspension being given in, the Lords did pass the same without either caution or consignation, in respect of the preceding advocation produced. But the question arose, If there was any contempt of the Lords' authority in proceeding to sentence after advocation marked and admitted?
Alleged for Hoddam and Collaston,—There could be no contempt; 1mo, Because the advocation was raised several months before the process of removing was intented, and so a non ens could not be advocated; 2do, Though its production be marked by the clerk, yet that was but collusive, and can infer nothing against thir defenders, who knew nothing of it; and so their procedure can never be interpreted to have been spreto mandato judicis superioris.
Answered,—This is but a mere contrivance to palliate their guilt; for they have abstracted and withdrawn the former process depending at the time the advocation was produced, to frustrate the poor tenants of their legal remedy, and then intent a new process of removing posterior to the advocation; and hurried it through to a sentence, before the advocation could be got produced again: and that the clerk would collude with thir poor men against the judge and these con-. siderable gentlemen, contrary to his own interest, to carry away causes from himself, passes all understanding, and will never be believed.
Replied,—This is but founded on a slender presumption, and at most is but fictio fictionis, and can never burden them so as to presume their knowledge of that advocation.
The Lords thought such judicial deeds were probative; and so found there was a contempt, and fined them in 100 merks to the parties for their damage.
