Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Maxwell of Orchardtown and Maxwell of Cuil,
v.
M'Leland of Barklay

Date: 17 July 1716

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There having been a complaint given in to the Lords by Sir George Maxwell and Cuil his factor, against Barklay, as having unwarrantably ejected them from some lands whereof they were tacksmen ; in so far as, notwithstanding of a protestation scored on production of a suspension, a second was put up and extracted, and Cuil ejected; and concluding damages, &c.—the defender urged the constant form, viz. That, when there is a protestation put up in the minute-book, calling for production of a suspension or advocation, and that the same is thereafter produced and scored ; the practice is, that the suspender, or his doers, cause the keeper of the minute-book score the said second protestation, because the suspension was formerly produced.

Answered for the plaintiff,—That, if the suspension was in the charger or his doer's hands, (as here it must be presumed it was,) he can have no pretence to justify his putting up and extracting a second protestation, and using execution upon a decreet, whereof the suspension was presumed to be in his own hand undiscussed.

The Lords found the charger liable in damages and expenses.

Act. Ja. Ferguson, jun. Alt. Erskine, jun. Roberton, Clerk.

Vol. II. No. 19. page 23.