Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 CLERKS OF SESSION.

Feuars of Mearns Muir, Petitioners,
v.
Sir Robert Pollock, &c

1771. August

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The clerks of Session are entitled to certain dues in all processes which have depended in Court. But as these were frequently evaded by settlements and transactions between the parties, this was considered to be an act of injustice, and a remedy was provided against it, first by the regulations I672, and afterwards by the regulations 1695, Art. 5; the last giving the Clerks a hypothec, or right of retention, to the pieces produced in process.

Several years ago the Clerks were laid under the necessity of applying to the Court to recover their fees in certain causes, of which the parties or their agents meant to disappoint them. See Acts of Sederunt 20th July 1758, and other instances, against Gabriel Napier, William Russell, &c. And the complaints being served, the Lords found the Clerks entitled to their fees, as if decreet had been extracted, and also entitled to the expenses of the application. But, in fact, the chief compulsitor which the Clerks have for payment of their fees is retention of the pieces, i. e. the papers produced in process.

It is established, that papers produced in process by third parties, as havers, are not subject to this hypothec: it is confined to papers produced either by pursuer or defender; but these are subject equally. A defender, though he be assoilyied, and though he produced his papers by force of the pursuer's application and process, is no more entitled to receive them back again than if he had been condemned, or had himself been pursuer. This, at first sight, seems hard; but the regulations 1695 make no distinction between pursuer and defender. See 23d June 1762, Petition Bennet and Others, Feuars of Muthill.

The feuars of Mearns Muir brought a process of declarator against Sir Robert Pollock, Oswald of Fingleton, and Others, for having it found that the pursuers had the sole right and property of said Muir, exclusive of the defenders; but the defenders prevailed and were assoilyied, but were refused expenses.

The Feuars, vassals of Sir Michael Stewart, wanted up their papers from the Clerks, being threatened with a process of non-entry. The Clerks refused to deliver them; and, on advising petition and answers, the Lords refused the petition, (August 1771.) The Feuars allowed the force of the hypothec, but they insisted that the defenders, who were assoilyied, were bound to extract, and so to loose the hypothec. The Lords did not think so,—they did not see reason to force a defender to extract a decreet of absolvitor unless he chose it. They therefore left parties to settle with the clerks as they best could.

In this case the Clerks offered not only to accept a composition, but they offered to accept a composition from each feuar separately, as his papers were delivered up.

One extract from either side is in every case sufficient.