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.
William Black, &c Tenants of Gogar, v. Hugh Macgill and Alexander Malcolm
Date: 23 July 1706
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Lord Minto reported Black against Macgill and Alexander Malcolm. Alexander, being infeft by Meldrum of Tillybodie, in an annualrent of £1000 out of the lands of Gogar, pursues a poinding of the ground against William Black, and other tenants thereof, before Hugh Macgill, bailie of the regality of Cul-ross, within which jurisdiction the lands lie.
The tenants alleged,—No poinding against us; because our master, the granter of the infeftment, nor his heirs, are not called to defend us, as they ought to be. The bailie having repelled this, the decreet goes out, and the poor tenants are poinded, and they broke; whereupon they not only raised suspension, but likewise a reduction and declarator, wherein they call the judge and clerk to be decerned to refund and pay the haill skaith and damage they have sustained through the palpable gross iniquity committed by him in the foresaid decreet, and likewise to be deprived of his office, conform to the certification of some old Acts of Parliament.
When this was called, the Lords were very clear to annul the decreet, and repone the tenants against it: But the debate arose on the conclusion against the judge and clerk. And as to the clerk, he being a passive-obedience man, there was no difficulty in assoilyieing him, who must write as he is directed.
And, quoad the bailie, it was alleged,—The error here committed was only in a punctilio of form, and the heritor's heir was unknown, the land having been so long in the hands of the creditors; and such a pursuit was wholly new and unprecedented: and the Acts of Parliament founded on were either in desuetude or only struck against judges who, by bribery and corruption, determined unjustly. And how many decreets of inferior judges are every day annulled and reduced on informalities; yea, even on natural iniquity and injustice, as directly contrary to law and Acts of Parliament! yet the judges are never made liable for the parties' damages. And, if this were once sustained, there would be infinite pursuits. And when the Lords Forret, Newtoun, and oilier criminal Lords, were pursued by the Earl of Argyle, in Parliament 1609, for their sentence of forfeiture against his father, the same was dropt and let fall.
Answered,—The Acts are very clear, viz. Act 45, 1424; Act 77, 1457; Act 26, 1469. And Act 104, 1540, declares, That judges must have sufficiency of their own, wherein they may be punished, and make up the parties' damages, in case they trespass: and if they do not justice evenly, they are to be rigorously punished at the King's sight, and be deprived totally, or for a time. And there could not be a more gross and palpable injustice than to sustain process and to refuse to call the heritors of the ground: and if a private man, wronging another, is bound to repair, much more a judge, seeing corruptio optimi est pessima. The common law indeed says, Si judex litem suam fecerit male judicando, tenetur parti in damno et interesse; but the doctors distinguish whether it be per impru-dentiam or dolo malo. If it be by corruption or gross favour, it is certainly punishable: But, if it be an error in apicibus juris, in some nice debateable points, it were a dangerous office to be a judge, if such mistakes should make them liable. It is certain, that ignorance in judges is a very great fault; but there are two sorts of it, viz. ignorantia puree negationis, et pravce dispositionis; and the last is the worst.
The Lords assoilyied the judge from this process for damages.
