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James Cunningham v The Bakers of the Canongate. [1694] 4 Brn 175 (26 June 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040175-0397.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Cunningham v. The Bakers of the Canongate
Date: 26 June 1694
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The reason of advocation was, That it was a competition of heritable rights, and so not competent before any inferior judge. Answered,—1mo. That it was below 200 merks; and so, by the Act of Parliament, belonged to the inferior courts. 2do. They had compeared and proponed peremptory defences, without declining the judge; et primus actus judicii est judicis approbatorius.
Replied to thejirst,—Though the yearly duty acclaimed was within the Act of Parliament 1672, being but £5 Scots; yet, being sought for forty years bygone, the whole exceeded it.—But, in such cases, quot articuli tot libelli. And, to the second,—The compearance was officious, by a procurator without a mandate.
But the Lords found he was producing their writs, which imported his being employed; therefore, they repelled the reasons of advocation, and remitted the cause.
