Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

A
v.
B

Date: 28 November 1754

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“Before this case was heard, as a part of Lord Huntingdon's trial, he reported an ordinary action from the Outer-house, which was as follows :—A process was brought before the sheriff of East Lothian, and after it had depended for some time, the defender died, and his heir and executor both residing in England, the pursuer obtained letters of supplement under the signet, whereupon the heir and executor were cited at the market cross of Edinburgh, pier and shore of Leith; and when the cause came before the sheriff, the sheriff sustained the objection made to the supplement, that the same was irregular and inept, as a principal defender could not be called by a supplement; on which the pursuer brought an advocation of his own cause, at discussing whereof the question was, whether the defenders were regularly brought into Court by the supplement, which the Lord Probationer coming to report, he with great modesty expressed his diffidence of his opinion in a case of this kind, which depended on the custom and practice with respect to letters of supplement; that he had advised with the most experienced writers, who were of opinion that it was customary to obtain such letters of supplement in cases of this kind; and when he further considered the bad consequences that might attend the not sustaining them, particularly, that there is no other method of carrying the cause; that all steps of diligence, such as arrestments, or inhibitions, must fall should the letters of supplement not be sustained; he was, therefore, of opinion, that they fell to be sustained.

“When the Lords came to reason upon this case, it appeared not to be without difficulty. So far behoved to be admitted that a principal party cannot be called by a supplement regularly; yet if it were true, that unless it were admitted in this case, all the proceedings that have been had, and upon which arrestments and inhibition had been used, must fall, it were hard. On which the President suggested, that the supplement might be sustained ad effectum, to advocate the cause, which to others looked a little odd; for if it was sustained, why should the cause be advocated, but rather remit to the sheriff. But his meaning was, that there could be no advocation except there was a defender; and, therefore, he was for sustaining the supplement to that effect. Others thought that the cause might be advocated simply for that very reason, that the cause could not proceed in the Inferior Court without a defender, which could not be there had; and that for that reason it ought to be brought into this Court.

“The Lords advocated the cause, and remitted to the Ordinary to proceed accordingly.”