Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRIVILEGE.

Doctor John Roebuck and Company
v.
William and Alexander Stirlings

Date: 20 January 1773

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[Fac. Coll. XIII. p. 218; Dictionary, App. I.; Privil. No. 2, Note.]

Auchinleck. The Ordinary did properly in passing the bill, without stopping the works, for the cause is not clear.

Alemore. It is a rule in law that every man is entitled to continue in possession of his rights till he is put out in form of law. There is no doubt of the king's power of granting the patent. Roebuck is in possession of the patent: he must not be turned out brevi manu, which he would be in a certain degree, were Messrs Stirlings allowed to prosecute their works.

Gardenston. I cannot agree to that part of the interlocutor which allows the work to go on. The very purpose of a suspension of a novum opus is to keep matters entire. There is no hardship in this, but there would be in the contrary.

Kaimes. Admitted that he could not recollect the ground of his interlocutor.

President. If other people are de facto in possession of the same sort of work, why stop Stirling?

Monboddo. If this were not novum opus, there might be difficulty.

Justice-Clerk. The interlocutor of Lord Hailes was right as it related to the buildings. The interlocutor of Lord Kaimes was wrong as it related to the work. Roebuck and Company have done all that they could to certify and interpel: other persons who have got into possession may possibly not be stopt but by declarator; Messrs Stirling may be by suspension.

On the 10th January 1773, “the Lords remitted to the Ordinary to pass the bill,” in whole altering Lord Kaimes's interlocutor.

Act. A. Crosbie. Alt. A. Lockhart.