Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Cavers, Elder,
v.
Cavers, Younger; and Dr Sinclair and Cavers Punished for Insolence

Date: 4 July 1707

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The Lord Jedburgh having divided and tailyied his estate, part of it to my Lord Lothian's eldest son, and the rest to Cavers's eldest son, and, failing him, to his brother ordine successivo: —Cavers, elder, gives in this tailyie to be regis-trate in the record appointed by the Act of Parliament 1685, anent tailyies, and craves it may be, per expressum, burdened with the composition he had paid to the Duke of Douglas, superior, for changing the holding from ward to feu, and with the casualties which had fallen off before. Doctor Sinclair, as factor for young Cavers, now out of the country, gives in a counter bill, alleging none had interest to crave its registration but himself, and craving it might be given up to him as his own evident, and that he may be decerned to denude, seeing he has taken the new charter in favours of himself, without regard to the terms and irritancies of the tailyie.

The Lords remembered that they had several times registrate tailyies, at the desire and application of the remoter branches and substitutes, though the first institute did not insist; and thought a father, as administrator to his children, might meliorate their condition without their knowledge, by changing the holding; but that his claim for the composition came not in properly to be considered here.

Then the question arose, Whether it should be registrate at the instance of the father, who first applied, for the behoof of all his children, or on the son's bill, who was the first institute, or if it should proceed upon both their applications. And while the Lords are reasoning on this, Cavers and Dr Sinclair, standing together at the bar, fell to hard words: Cavers calling the Doctor an incendiary, who blew the coal betwixt his son and him; and the Doctor calling him a liar,—he, in a passion, told him he was a rascal, villain, and rogue. The Doctor retorting, that none would say so but he that was a rascal himself; whereon Cavers threatened, if he had him elsewhere, he would spit in his face. This rude and disrespectful behaviour being observed by the Lords, and that in-solencies of that kind might grow to a greater height, if not punished; and that, in such cases, principiis obstandum, and the honour and dignity of the bench, the supreme judicatory of the nation, must be maintained, they removed the parties; and having examined the bystanders, and found the expressions sufficiently proven, and which were not much denied by the parties themselves, they sent them both to prison; but declared that, seeing Cavers was the first provoker, and causam dedit rixce, they would consider what farther censure to inflict upon him.

This proves how necessary the Act 219, Parliament 1594, was, That whoever assaulted another, pendente lite, should, ipso facto, lose the cause; which exactly quadrates to the genius of the nation, as characterised by Barclay, in his Icon Animorum:—prafervidum Scotorum ingenium: quicquid volunt id valde volunt. Some moved to send them to the Castle; but it was thought that was the prison more proper for the nobility, and the governor might demur: though the Lords may open all the prisons in Scotland in such cases: And, in 1688, the Laird of Caddel having affronted the Lord Boyn, then a Lord of the Session, they sent him to the Castle. But the Lords this day committed thir two gentlemen to the tolbooth. See the 68th Act 1537, anent such as dishonour the Lords, that they may send them to the Castle of Edinburgh, or any other they please. Some of the Lords were against imprisoning Dr Sinclair, as having got the provocation, in being called an incendiary; and that jus retortionis in these verbal injuries is tolerated, as appears from Gayl and Minsinger's Observations. But the Lords found, that the honour and reputation of the bench required they should be both sent to prison; and as what would less widen the breach and alienation of mind that had fallen out bewixt Cavers and his son. The sending the father alone to prison would have irritated more, and made the rupture more incurable and irreconcilable. It was remitted to my Lord Chancellor to take them before him, and require their parole of honour to keep the peace; and, in case of refusal, to put them under caution of lawburrows, in the terms of law.

The Lords have been in use not only to censure irreverent carriage to the bench, but even injuries done to advocates. I remember Sir James Keith of Cadham was fined and imprisoned for threatening and abusing Sir David Falcc-ner of Newton, his contrary party's advocate. Then insolent deportment in the Lords' presence deserves a deeper censure and resentment.

Vol. II. Page 378.