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 Carruthers v. Patrick Crawfurd
Date: 29 December 1709
Click here to view a pdf copy of this documet : PDF Copy
Andrew Crawfurd, merchant in London, being debtor in considerable sums to sundry persons, flies with his effects to Scotland; whereupon his creditors apply to the Privy Council, and, without a caption or any other diligence, get a warrant summarily to apprehend him, as a bankrupt stranger, seeking to defraud his creditors, till he should find caution judicio sisti; whereupon, to prevent his imprisonment, he finds Patrick Crawfurd, merchant in Edinburgh, cautioner for him; who, after some trial, obtains an absolvitor, and an order to give him his bond of cautionry. The Scots Council being now dissolved, William Carruthers, one of the creditors, raises a reduction of that Council-decreet before the Lords of Session, as contrary to law.
Alleged for Patrick Crawfurd,—That the Privy Council being a supreme coordinate court, the Lords were not competent judges to the reviewing or reducing their decreets, no more than they could meddle or cognosce on the Ses-sion-decreets; for though, in questions dipping on civil rights, the Lords have reviewed Council processes, yet in cases of extraordinary remeids, such as the arresting and attaching of strangers, the Lords never used to interpose, except once in Street and Jackson's case against Mason the bankrupt; and therefore none can judge of this attachment and bond of presentation now, but only the Council of Britain, into which the Scots Privy Council is absorbed and incorporated, especially seeing you have neglected to seek redress from the Scots Council, it being several years before their dissolution; and l. 43, sect. 1, D. de Verb. Obligat. says, Si quis, arbitratu Lucii Titti, restitui sibi stipulatus est, deinde stipulator moram fecerit quo minus arbitretar Titius, promissor quia moram fecit ideo non tenetur; and so you having acquiesced in the sentence by so many years' silence, you cannot be heard to quarrel it now.
The Lords thought the case properly fell under the Privy Council's jurisdiction, and therefore refused to sustain themselves judges to the reducing thereof.
