[Minutes in the process of the earl of Home and Mr James Home of Ayton, his son, against Sir Patrick Home, advocate]

The pursuers Dalrymple and Hamilton of Bangour, either of them

Dalrymple for the pursuers repeated his libel and craved that Sir Patrick Home might proceed in discussing his protest for remedy of law, with certification that if he fails, the protest may fall and become null, it being taken after extending of the pursuer's decreet.

Home alleged that the pursuer's process is not seen and returned, as is appointed by the act of parliament of 1695 regulating the procedure of process before the parliament, and that no party is bound to answer until he first sees and returns the process.

Dalrymple answered that he opposes his process bearing an outgiving, and the same was accordingly given in to Sir Patrick's lodging, but his servants had so much art as to give it back without a written return, albeit Sir Patrick or some in his name cannot give their oath of calumny, but they truly saw it and gave it back without a return, and returns are only necessary before the session where enrolments are required. Secondly, Sir Patrick having cited the earl and his son on his protest for remedy of law in order to discuss it, and the day of compearance being elapsed, he ought presently to proceed in his process, otherwise the earl and his son ought to have protestation against him for not proceeding. Likewise Sir Patrick is a member of the house and knew his process was to be called the first diet for private business.

Home replied that by the act of parliament of 1695 all processes before the parliament must be seen and returned in common form before they can be proceeded in, and it is most slanderous to allege that Sir Patrick or any in his name did ever see the process, nor can his being a member of the house preclude him from legal agreements, which allows him to see the process in common form; and as to the second allegiance, answered that albeit the pursuer has raised his process on his protest, yet the same not being done until he was cited by the earl and his son to proceed, he cannot proceed in his process until first the earl and his son give out that process to see and answer, and that Sir Patrick will proceed in his or not as he shall find convenient.

7 September 1703

Her majesty's high commissioner and the estates of parliament, having advised the debate, they ordain Sir Patrick Home to be ready to proceed in his process against [Charles Home], earl of Home and his son upon his protest for remedy of law, or to answer at the instance of the said earl and Mr James, his son, in their process against the said Sir Patrick, and that upon the next diet of parliament for private affairs peremptorily, and in the meantime allow Sir Patrick to see Mr James' and the earl's process in the clerk's hands.

[James Ogilvy, earl of] Seafield, chancellor, in the presence of the lords of parliament

  1. NAS. PA6/35, 'September 7 1703', f.1-2. Back