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Scottish Court of Session Decisions >>
Helen Wishart v Robert Bowie and John Plenderleith. [1698] 4 Brn 409 (10 June 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040409-0820.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Helen Wishart v. Robert Bowie and John Plenderleith
Date: 10 June 1698
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Whitelaw reported the complaint given in by Helen Wishart, relict of James Smeton, merchant in Edinburgh, against Robert Bowie, and Mr John Plenderleith, writer to the signet, bearing, That Bowie had taken a decreet against her, stante matrimonio, for goods given to her tanquam prœposita negotiis; which, in law, only bound her husband; yet, on this illegal decreet of the Sheriff's, they had taken her with caption;—therefore craved they might refund her damages by their wrongous imprisonment.
It was alleged,—That the Sheriff's decreet was a good enough warrant, both to the party and the writer, to raise horning and caption thereon; for it is not their province to consider the justice or legality of decreets; and, by the 10th Act of Parliament, 1606, horning is ordained summarily to pass on Sheriffs' decreets; and testifioates were produced by both parties, under the hands of writers to the signet, some affirming the horning and caption warrantable, and others declaring them illegal.
The Lords thought there was a probable ground to excuse them from fining and censure; yet, the woman being palpably wronged, her expenses behoved to be landed somewhere; and the Sheriff-clerk was most to blame, who gave out so unwarrantable a decreet; and therefore remitted it to the Lord Reporter to adjust and proportion her damage amongst them all.
