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.

Thomas Fleming
v.
Stewart of Blackhall's Tenants

Date: 24 July 1707

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Sir John Shaw of Greenock being nominated by the Privy-Council, with Colonel Ogilvie and others, to execute the laws against importing Irish victual, butter, cheese, horses, and other goods, and to prevent and punish the same; he constitutes one Mr Thomas Fleming his depute, for pursuing the transgressors; whereupon he pursues, before Semple of Fulwood, sheriff-depute of Renfrew, above 200 persons dwelling in the lands of Inverkip, and others belonging to Stewart of Blackhall, libelling, That there are sundry creeks in that bounds lying towards the coast of Ireland, where boats land privately in the night-time, and that thir defenders resetted these Irish goods, and dispersed them through the country, to the prejudice of the native product of Scotland; and so are liable in the penalties contained in our Acts of Parliament; and thereon takes a decreet against a whole country-side, holding them as confessed, for not compearing to depone as to their guilt and accession in harbouring these prohibited goods. This decreet being suspended, the reasons were:—1mo, The decreet is in absence, pronounced in seed-time, without a dispensation, without any lawful citation: a copy not being given to every one; but a single one to serve for a whole family, summoning the man and his wife, children and servants: and under no less certification than all the men under 50 to be sentenced to deportation, and being delivered up to Flanders officers to serve in the wars abroad; and all above that age, with the women and bairns, to pay pecunial mulcts, the value of the goods extending to many thousand pounds sterling; besides corporal punishment, with the confiscation of all their boats: which is no less than forfeiture to these poor people, and beggaring that part of the country, and turning it to a hunting field. 2do, They have not the legal inducia, but are sentenced within 48 hours after the citation. 3tio, It is not. holden at the ordinary place, but upon the pursuer's lands of Greenock. 4to, The decreet is not subscribed by the clerk, but by the judge himself; whereas, these officers being distinct in every court, they cannot be confounded, nor be both exercised by one person.

Answered,—In such commissions as holding out of Irish victual, all the special formalities of law required in other judicatories need not be precisely observed; for this is more a point of government than private interest; and these laws are most useful, and cannot be executed in the common way of solemnities: And yet here they were all personally apprehended, and both the time and place was contrived for their ease; Greenock being sundry miles nearer to the defenders than Renfrew, the sheriff's ordinary place for holding his court: and the clerk being lately dead, and none put in his place, he only supplied that defect; the design of a clerk being only to see if the decreet be extracted conform to the minutes which he had attested; and he was not to take advantage of them, but was willing to repone them yet to their oaths, and to insist only against those that were most notoriously guilty.

The Lords thought this decreet had not so much as the visage and scelet of a decreet; and that it was given without Sir John Shaw's knowledge, he being then out of the country, and who would have no accession to what looked like oppression: Therefore they turned the decreet to a libel, and reponed such of the defenders as he now insisted against, not only to their oaths, but to all their other defences in causa.

Vol. II. Page 386.