Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Chisholm
v.
Laidlaw

Date: 16 December 1671

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Chisholm and Laidlaw possessing a room pro indiviso, Chisholm pursued Laidlaw, before the sheriff of Roxburgh, for constituting a stent of the sums of the room, and for payment of the over-sums; whereof Laidlaw pursues reduction, on this reason, That the decreet was a non suo judice, the defender living within the Marquis of Dowglas his regality; whereupon he did not only decline, but the marquis's clerk compeared and repledged. It was answered, That the pursuer had pursued first before the regality court, but, being denied justice there, and, after probation, the cause not being advised, though often desired, the charger did justly and necessarily pursue before the sheriff; and, for the repledging, it was not till sentence was pronounced; and, though an instrument bear that the marquis's charter was produced, it is offered to be proven, per membra curiæ, it was not produced. It was answered, That the repledging was the same day the decreet was pronounced, before the court rose; so the decreet being unextracted, and in the sheriff's power, he ought to have admitted the repledging; and, though the marquis's charter had not been produced, the being of his regality was notorium in that place. The Lords would not sustain the decreet, but turned it unto a libel; and, that neither party might be preferred in the sole probation of the stent or over-sums, they granted commission to examine witnesses upon the place for either party.

Vol. II, Page 27.