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Scottish Court of Session Decisions >>
Mr Thomas Lutwidge v John and James Murray. [1706] 4 Brn 652 (23 July)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Brn040652-0147.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Mr Thomas Lutwidge v. John and James Murray
17O6.
July23.
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The Lord Forglan, as probationer, reported Mr Thomas Lutwidge, merchant in Whitehaven, in England, against John and James Murrays, merchants in Dumfries. Mr Lutwidge having brought 35 hogsheads of tobacco to Annan, he enters into a bargain for some of it with Mr Murray; who apprehending he was going to sell it to another, he applies to the sheriff of Dumfries, craving a warrant to arrest him till he found caution; which is granted: And there the bargain is referred to oath, which he acknowledges. And Murray's oath is taken, which of them was to pay the Scots duty: And Mr Murray depones, It was Mr Lutwidge; whereon he is decerned to deliver the tobacco, and they only to pay threepence-halfpenny the pound free of duty.
Of this decreet he raised suspension and reduction on thir grounds:—1mo, It is null, being in time of vacance, without a dispensation; 2do, His compearance was by force of arrestment and concussion, being brought obtorlo collo; 3tio, It was ultra petila, the warrant being only sought to secure him till he found caution; and yet, he is decerned to fulfil the bargain; and he is decerned to fulfil to John and James Murrays, and yet the complaint is only given in by James; 4to, He adjected several qualities to his oath, anent their being liable to pay the Scots duty, which the judge refused to insert; whereas, the price he decerns, deducing the duty, is cheaper than the prime cost it stands at the Plantations.
Answered,—Mr Lutwidge being a stranger, who might retire where he pleased, it was just and necessary to arrest him, and make him answer, though in vacance time: and, seeing he found not caution judicio sisti et judicatum solvi, the sheriff might very well put him to depone anent the bargain. And he mentioning John Murray as a partner, why might not the judge decern for him as well as James, it resulting from his own oath? And that the bargain was cheap, was never sustained in Scotland to repone any. And the tie of an oath is so inviolable and sacred, that he ought not to be heard to impugn it postquam jura-turn est
The Lords thought this case stronger than that of the 18th February 1680, Burnet against Ewing; where one being arrested at London, and giving a bond to be free, the bond was reduced; therefore, the Lords here turned the decreet to a libel, and reponed the stranger thereagainst.
