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.
Drummond of Invermay v. The Marquis of Annandale
Date: 23 November 1708
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Drummond of Invermay pursues the Marquis of Annandale for £2400 owing by his predecessors to Stewart of Rosyth, whereunto he has right; and the Marquis having instructed that they were only cautioners for the Earls of Home, and alleged that the debt, in whole or in part, was paid by the principal debtor; and having got a diligence for recovery of discharges, he produced some for several years' annualrents; and these having been allowed, decreet was extracted for the remainder. But having suspended, that his case was most favourable, being the heir of a cautioner, and that there were many more discharges lying in the Earl of Home's charter-chest, if he had the persons condescended upon examined; which was granted: and a further compulsitor being craved against the Earl of Home, for searching his papers more exactly:—The Lords found, That our law knew no other compulsitory but first and second diligence by horning and caption; both which he had got often.
Then it was alleged for the Marquis,—That the cause must sist; because he was absent reipublicœ causa; in so far as, in the election of the sixteen peers, in June last, he had protested against the liability and capacity of sundry of the voters; and, if his objections be sustained by the House of Peers, then he will be found to have the most votes; and so, being a member, will not be obliged to answer in any process during the sitting of the Parliament.
Answered,—This was a plain stretch; for the privilege was personal, and due only to actual members of Parliament, and not to potential ones; for, if such possibilities were sufficient to stop the course of justice, then it were easy for peers to procure a double election, and thereby postpone their true and lawful creditors: and barons and burgesses might do the like, in the forty-five to be sent to the House of Commons; which would be a scorning of justice: and Magna Charta provides, nec differemus nec unquam denegabimus justitiam; for the discussing of objections may depend long by the intervention of greater matters of state; and it is strange that should be a protection during the dependance, especially seeing civil causes require not the party's presence, as criminal cases do: so there is no need of my Lord Marquis's attendance, seeing he either has, or may yet instruct his lawyers in all that is necessary for defence of his cause.
The Lords thought it was time enough to sustain his privilege when he carried his election; and therefore repelled it hoc loco.
