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 Turner v. Ross of Tillisnaught
Date: 14 November 1710
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[See the prior part of the report of this case, Dictionary, page 11802.]
Ross of Tillisnaught having obtained a decreet inforo, against William Turner, notary in Birse, for exhibition and delivery of some bonds that were a part of Robert Middleton's executry; and Turner being incarcerated thereon, he gave in a bill of suspension and charge to set at liberty, on thir reasons: 1mo, That, having appealed from the sentence of the Lords of Session to the British Parliament, he went to London to prosecute the same, when Mr James Ferguson, advocate for Tillisnaught, prevailed with him to forbear tabling of his cause for that time, and enter into a submission, wherein Mr James took burden for Tillisnaught, and an arbiter was filled up for either party, and a blank left for the names of other two; which four were to concur, and, in case of discrepance, to name an oversman, and to take in the claims before the 1st of August 1710, and to give out their decreet-arbitral betwixt and the 1st of September thereafter. It seems, on this prospect, Turner returned to Scotland; but the two blank arbiters were not filled up, nor condescended on, before the 1st of August; nor were the claims given in; so that Tillisnaught, looking upon himself as at liberty, and the submission expired, executed his caption against Turner about the 20th August, and put him into Brechin prison. Against which procedure, as wholly unjust, unwarrantable, and illegal, Turner reclaimed, as being first wheedled and decoyed into a submission, when he was just ready to table his affair, and then imprisoned during the dependence and currency of the submission, which did not expire till the 1st of September. 2do, He was charged to deliver up bonds from which he was assoilyied, as being given up already.
Answered for Tillisnaught,—That Mr Ferguson had no warrant nor commission to propose any such overtures or submission; and, though he believes he undertook for him with a good design, yet his subscription can never bind him, unless he show either his mandate or ratihabition. But, 2do, Let it be as valid a submission as Turner pleases, it is clearly fallen and expired; for, by its precise tenor, the other two arbiters were to be named, and claims to be given in before the 1st of August; neither of which being done, it certainly determined and came to an end. Vid. 1. 32, sec. 1, D. de Recept. Besides, he is arrested by her Majesty's Advocate, for breach of prison; for, being formerly incarcerated there, he, in the night-time, put fire to the prison, and in the hurry and confusion made his escape. To the second, The messenger who apprehended him, by an express note under his hand, declared he did not insist for those papers already delivered; and he was willing to consent to his liberation on his finding caution, or consigning the papers called for. But so it is, he craved it on juratory caution, which is expressly contrary to the Act of Sederunt in November 1682, where one is in prison.
The Lords thought they might take out any man without caution or consignation, where it plainly appeared that he was illegally or unwarrantably imprisoned; but here they found no such thing; but, on the contrary, that the submission was expired and fallen before his incarceration; and so, not being current, they refused to set him at liberty. In this bill, the Lords noticed another point complained of, That there was a plain disconformity betwixt the extract taken out by Tillisnaught, and that of Turner's the suspender. The inquiry whereof was remitted to the Ordinary, that the extractor may be debarred the clerk's chamber if guilty.
Vol. II. Page 597.
1712. July 30.—William Turner, the notary, gave in an appeal and protest for remeid of law, against Ross of Tillisnaught, because the Lords did not find it wrongous imprisonment for delivering up writs which he had given in already; because the Lords found the caption restricted in the margin.
