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.
Colonel Erskine and Preston of Valleyfield v. The Earl of Kincardine
Date: 17 June 1712
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Colonel Erskine and Preston of Valleyfield pursuing the Earl of Kincardine, for extinguishing, at least restricting, a right he had; and referring it to his oath, and he claiming his privilege as a peer, that he ought only to give his word of honour, refused to depone: the Lords repelled this, and over-ruled him. But then, he still declining, and the Colonel craving a caption to bring him in, the Lords found, by the Articles of the Union, that he had the privilege of an English peer, not to be liable to personal diligence by caption; but considered our law must not be defective in such cases; and, if one compulsitor fail, then another must be introduced to make it effectual; which can be no less than the value and import of the cause, which you make me lose by refusing to depone. But, because that damage cannot be instantly liquidated, therefore the Lords, as an interim remedy, granted letters of diligence to charge the Earl to depone; and that under the penalty of £50 sterling in case of his contumacy; but prejudice to the Colonel to constitute and liquidate his farther damage as accords. And it being asked how that certification should be made effectual? it was said, when that existed, it behoved to be by poinding and arresting in the tenant's hands, and putting the creditors summarily in possession of his estate by sequestration.
