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 FORM OF PROCESS.

Bruce of Kinnaikd
v.
Carron Company

Date: 11 March 1778

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In the much contested process betwixt the Carron Company and Mr Bruce of Kinnaird, concerning their lease of the coal of Kinnaird; the Lords having in February last pronounced an interlocutor, Mr Bruce reclaimed against it, and his petition was ordered to be answered by the Company; and the day for giving in their answers was prorogated to the 23d April. Mr Bruce, finding it impossible to get a decision this Session, resolved if possible to carry his cause by appeal to the House of Lords; where he hoped to get a determination before the Session of Parliament came to an end. But then, he saw that, unless his reclaiming petition was taken out of the way, this would be ineffectual; as, in all such cases, the House of Peers consider the cause as still depending below, and refuse to proceed upon it, until the merits of the reclaimer is determined. He, therefore, in the last hour of the Session, presented a short petition, (11th March 1778,) craving liberty to withdraw his reclaiming petition, and avowed his intention of carrying the cause elsewhere. The petition containing some reflections on the Carron Company’s dilatory conduct of the cause, their lawyers insisted for liberty to answer it: and they said, in general, that no paper given into Court, by any of the parties in a cause, can be withdrawn without consent of the other; especially if it contains admissions either in fact or law. But whether it did so or not, they held the doctrine to be general, and therefore insisted to see the petition. The Lords were inclined to follow their ordinary course in all similar cases, never to hinder a party to answer a petition, if they insisted for it. Mr Bruce, seeing this, withdrew his written petition.

Judicial Enactment.

A Judicial enactment of a defender to appear personally at all diets of Court, may be done by a short minute, drawn and written by the clerk, and signed by the party, without any other solemnity.