Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Mr James Deas, Advocate,
v.
James Hay, Writer to the Signet

Date: 5 July 1694

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The Lords found, As to the 500 merks of fine that he paid, there could be no process for restitution of it sustained here; seeing, by the rescissory Act of Parliament 1690, that case is expressly referred to the Commission. But, as to his conclusion that the 2000 merks bond should be redelivered to him, if he insisted on that ground of the common law that it was for the discharge of his fine, which he never got, and so was causa data et non secuta; that he could have the privilege of summary discussing, that being indulged to those within the compass of the act: but, if he insisted on the claim of right and Act of Parliament 1690, it behoved first to be instructed that he was in one of the cases there mentioned; though he argued, the case being as favourable, was the same. And here the decreet, not being recorded in the Privy Council books, (which should make the clerks liable on their omission,) the question occurred how it shall be proven what was the cause of his fining. Some proposed to take his own oath upon it; but the Lords ordained James Hay, upon oath, to produce the bond; and if it did not bear its cause, also to depone anent his knowledge of the cause of it, and for what the fine was imposed.

Vol. I. Page 627.