Scottish Court of Session Decisions

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

Susanna Stewart
v.
James Sinclair

Date: 19 July 1694

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In the case of Susanna Stewart against James Sinclair, clerk to the loosing of arrestments, for paying her debt of 500 merks, owing by Hay of Park, for loosing the arrestment laid on by her upon his emoluments as one of the five commissioners of the register's office, without caution or consignation, but only upon his own bond; whereas it being on a decreet, it was not looseable: and seeing it was found, by a posterior interlocutor of the Lords, that these daily obventions and casualties were arrestable, and not precisely of the nature of an aliment, or a soldier's pay, nor in the case of Sir Robert Murray, Justice-clerk, his pension, which was found not arrestable; therefore the clerk should be liable.

He alleged, That what he did was by order and warrant of my Lord Mersington, then Ordinary, who had the advice of the President, and four or five of the Lords, it being in vacance, rather than to suffer Park to be affronted in the mean time, to loose the arrestment. This defence being acknowledged by the Lords present, they thought it unworthy to allow the clerk to suffer for what he did by their authority and warrant, though only verbal; and, therefore, the Lords present at the communing offered to pay the sum out of their own pockets. The rest of the Lords, from a generous emulation, refused to be exemed, and so it was laid upon the whole, upon an assignation to the debt against Park's heirs; though there be no hopes or expectation of relief. The sum is small; however, it is an instance of that rule of law, si judex litem suam fecerit, damnum partis lœsœ resarcire tenetur, whereof there are but few examples.

Vol. I. Page 634.