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.
John Lewars v. Mr Andrew Hay of Craignetham, Sheriff-depute of Lanerk
Date: 28 February 1712
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Lewars against Hay. John Lewars being tenant to Carmichael of Mausley; and he suspecting his solvency, he pursues him before Mr Andrew Hay of Craignetham, Sheriff-depute of Lanerk, to remove, or else find caution for his rent. Against which the tenant craved, 1mo, His master's oath of calumny, if he had reason to deny but he had intromitted with as many of his goods and effects as paid him. 2do, That no such conclusion could be sustained in this process, unless there were two terms' rent run in the third unpaid; and this he could not subsume on.
Answered to the 1st, He was not obliged to give an oath of calumny; because the point being in facto proprio et recenti, by the Act of Sederunt it resolved into an oath of verity. And, as to the 2d, it is not proven; but, on the contrary, he had made a disposition omnium bonorum in defraud of his master, and was vergens ad inopiam, and the ground likely to be cast waste for want of due labouring and of seed-corn.
The Sheriff refused the oath of calumny; and repelled the defence that the master had more in his hands than would pay him; and decerned in the removing.……”
The difference betwixt Lewars and his master was, after this, submitted, and a decreet-arbitral followed, determining a sum to be paid by Mausley to his tenant; but reserving still the poor tenant's complaint against the Sheriff-depute. Whereon he raised a process against Mr Andrew Hay for repairing bis damages, founded both on the common law, where judex litem suam facit, tit. Instit. Obligat. qute ex quasi delicto nasc. and likewise on our municipal law and acts of Parliament; as Act 45, 1524; Act 26 and 27, 1469; where judges proceeding partially, wilfully, and maliciously, are not only to make up the party lesed their damages, but likewise to be punished otherwise. It is acknowledged, every wrong and erroneous sentence will not make a judge liable, where the point is in apicibus juris, and so dubious that wise and intelligent men have different sentiments; for which allowance must be given, since humanum est errare. But that is not Lewars's case: the judge has run in the very eye of the law, and contradicted its sense, words, and meaning, as clear as the sun; for I referred to Mausley's oath, that he owed me £197 Scots, and he refused it; by which partiality I lost the sum, he dying shortly after it; so my mean of probation perished.
Answered,—It is true judges are not to be permitted to be arbitrary disposers on men's fortunes; but this process is of an universal concern; for, once lay down that position,—Judges must answer in their goods and estates for all their mistakes in law and form, no wise or honest man will undertake such a dangerous post; which my Lord Stair, book 4. tit. 1. expresses very well. If this were to be their fate, no man would embrace and accept the office of a judge but a beggar, a fool, or a knave. But this specious topic is not applicable here; the Sheriff's character of integrity is established beyond suspicion. And 1mo, in this case he did no wrong in refusing the oath of calumny; for it behoved to be an oath of verity for the reason foresaid. 2do, His offer to prove paid was justly rejected; for, being bankrupt, his design was to entangle his master in a tedious count and reckoning, to stop a summary removing. 3tio, If he thought himself wronged, the wisdom of the nation has provided an easier and a readier method to redress either the unskilfulness, negligence, or partiality of judges, than those old acts did, viz. by suspension or advocation; which this pursuer neglected, and would satisfy himself with nothing else than pannelling the judge; whereas, ubi competit remedium ordinarium, non est recurrendum ad extraordinaria. 4to, Esto he had sustained damage by the judge's iniquous decreet, yet he has received full satisfaction thereof by the sum he got on the decreet-arbitral, proceeding on his own submission. So this process is an ill-founded novelty in all its branches.
Replied,—There cannot be a more wholesome remedy to stop the rapacity of judges, than to let them know they must be liable and answerable for their actings. As Aulus Gellius says, Acerbitas ulciscendi Jit medicina bene vivendi. The doctors in law do indeed make two cases here, one si judex per imperitiam male judicaverit, and the other si per sordes et dolo malo. In the 1st case, though ignorantia in judice culpee annumeratur, yet it is not so criminal as in the 2d: wilful gross iniquity is not to be covered with the soft names of error and mistake; and supra, 27th July 1711. in the cases of Scot and Eraser, and of Leitch and Fairy, the judge was put to make up the damage. And here the Sheriff's inveterate malice is more palpable; for he wrote a letter to the Queen's Advocate, craving his warrant to seize Lewars, and make him a recruit, as a thief and an ill man. And any reparation he got from Mausley did not compense the half of his damages.
The Lords, by a scrimp plurality, found there was no such iniquity in the decreet quarrelled, though unjust, as could found an action against the judge for damages; and therefore assoilyied. See the 2d of January 1667, the Earl of Murray against Home; where compensation was admitted to stop a decreet of removing. Ergo payment should do it multo magis. See, also, 3d January 1672, the Lady Binny against Sinclair. Judges are set up by God and their country to protect the lieges from oppression, but do not always answer their trust.
