Scottish Court of Session Decisions

Subject_1 JURISDICTION.

Thomas Ogilvie
v.
Captain Hamilton

1746, July 31.
Case No. No. 37.

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A complaint being made of Captain Hamilton's unwarrantably forcing the possession of the petitioner's tenants cattle, furniture, &c. turning them out of possession of their farms, and setting their grass for rent, we ordered the complaint to be served, and Captain Hamilton to answer in five days after service. It was served personally the 25th in the forenoon, and no answers being put in, we found him guilty of a contempt, and granted warrant to commit him to custody until he find caution to the satisfaction of the Sheriff of the county where he shall be seized, to put in answers against the first of November, and also to pay what damages shall be awarded. I proposed to make it only judicio eisti et judicatum solvi.

*** The case is again mentioned thus:

December 16, 1746.

This was a complaint against the Captain, for spuilzieing some household furniture, cows, &c. from his tenant David Ogilvie, on pretence of his being in the Rebellion, whereby he was in hazard of losing his rent, and for first eating the grass and after setting the parks of two other tenants who had no accession to the Rebellion, for which the Captain got L.16 sterling, and publishing a roup of the then growing crop,—which was presented to us the end of July last; and as the offence required a summary and extraordinary remedy, we ordered the Captain to put in answers against a limited day, and on his failure granted warrant to apprehend him till he should answer and find caution judicatum solvi. The warrant was not executed, and this Session he put in answers excusing his contumacy and justifying all he had done, and pleading the act of indemnity. The answers which were drawn by Mr Robert Craigie, late Lord Advocate, made some noise here and at London, where I am told they were reprinted, and greatly cried out against, which is indeed one principal reason for my keeping them. The importance of the question, i. e. what acts were justified by the indemnity made us appoint a hearing in presence, and upon the hearing we unanimously found that the facts complained of did not fall under the indemnity, and therefore allowed a proof. Only Leven differed, and mentioned a defence in fact that had not been mentioned in the pleading, that the Captain did not pocket any of the money but distributed it among the soldiers, which if it had been alleged from the Bar and offered to be proved I should have had more difficulty on the indemnity, but as this was the first day that I had been in the House after the loss of my dearest dear wife, who was the joy and comfort of my whole life, I was not able to speak further than to give my vote.—27th January, On a reclaiming bill we gave an act before answer to this indemnity.