BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Captain Francis Charters, Complainer. [1711] 4 Brn 860 (18 December 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Brn040860-0364.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.
Captain Francis Charters, Complainer
Date: 18 December 1711
Click here to view a pdf copy of this documet : PDF Copy
Charles, Master of Elphingston, and Mr John Campbell of Mammoir, the Duke of Argyle's uncle, gave bond to Captain Francis Charters, in the Queen's Foot-guards; and he resolving to do some diligence on it against the Master of Elphingston, gave in the bond to the register. But the clerk observing that the clause of registration run against both, and that Mr Campbell was a member of the British House of Commons, and registration being a decreet, (though of consent,) none could pass against him during the sitting of Parliament; and, therefore, lest they might be charged with breach of privilege, they refused to registrate the same. Whereon, Charters gave in a bill to the Lords, complaining of the clerk, and declared, he craved only an extract against the master of Elphingston, and pro tempore past from Mammoir, and craved out his extract with this restriction.
It was argued among the Lords, that the privilege being personal, it could not cover nor protect another not privileged, even as a minor and a major granting a bond, the minor's restitution will not extend to the major; and even so with a wife and her cautioners: and so de consortibus ejusdem litis. Others argued, that the two were coprincipals, and the clause of registration one complex individual act, and could not be divided so as to be registrate against one and not against both: and to registrate it simply against one, wanted a warrant. But, quceritur, Might he not gratuitously discharge one of the correi debendi, and insist against the other; and if the passing from him pro loco et tempore may have the same effect in law.
