Scottish Court of Session Decisions

Subject_1 TRANSACTION.

Laird of Mayne
v.
Laird of Innes

1598. November.
Case No. No. 1.

Found that a party may transact a contravention of law-burrows before, but not after raising the summons, that being to the King's prejudice.

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The Laird of Mayne and the King's Advocate caused summons of contravention against the Laird of Innes, and others, for coming to his barn-yard and casting his stacks, and taking away his corns. It was alleged, that there could be no process, because Mayne had submitted that action with Mr. Alexander Innes, to friends, who had pronounced their decreet-arbitral thereanent. The Advocate answered, that it could not prejudge the King's Majesty cui acquisitum fuerat jus ipso facto, by the violent deed committed against the act of law-burrows, which the parties by the proved transactions could not invert. It was answered, that the King had no interest without concurrence of the party whose discharge or transaction might free the defender. The Lords found, that the allegeance of transaction ante litem intentatam, and before the raising of the summons might relieve the defender, but the summons being once raised and executed, that the parties could not transact in prejudice of the King.

Haddington MS. No. 627.