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

Actores Dallrymple et Hamilton of Bangowr

Alter se

Dallrymple for the persuers repeated his lybell and craved that Sir Patrick Hoome might insist in discussing his protest for remeid of law, with certificatione that if he faillie, the protest may fall and become null, it being taken after extending of the persuer's decreit.

Hoome alledged that the persuer's proces is not sein and returned, as is appoynted by the act of parliament 1695 regulating the procedor of process befor the parliament, and that no pairtie is bound to ansuer quhill he first sie and returne the proces.

Dallrymple ansuered that he oppones his proces bearing ane outgiveing, and the same was accordingly given in to Sir Patrick's lodging, bot his servants had so much airt as to give it back without a wryten returne, albeit Sir Patrick or some in his name can not give their oath of calumny, bot they truly saw it and gave it back without a returne, and returnes are only necessar befor the session where inrollments are requyred. Secundo, Sir Patrick having cited the earle and his son on his protest for remeid of law in ordour to discusse it, and the day of compearance being elapsed, he ought presently to insist in his proces, otherwayes the earle and his son ought to have protestation against him for not insisting. Lykeas Sir Patrick is a member of the house and knew his proces was to be called the first dyet for privat bussines.

Hoome replyed that by the act of parliament 1695 all process befor the parliament must be sein and returned in common forme befor they can be insisted in, and it is most calumnies that Sir Patrick or any in his name did ever sie the proces, nor can his being a member of the house preclude him from induciae legales, which allowes him to see the proces in common forme; and as to the 2nd alledgeance, ansuered that albeit the persuer has raised his proces on his protest, yet the same not being done quhill he was cited by the earle and his son to insist, he cannot proceid in his proces quhill first the earle and his son give out that proces to sie and ansuer, and that Sir Patrick will insist in his or not as he shall find convenient.

7 September 1703

Her maties high commissioner and the estates of parliament, haveing advysed the debeat, they ordaine Sir Patrick Hoome to be ready to insist in his proces against the earle of Hoome and his son upon his protest for remeid of law, or to ansuer at the instance of the said earle and Mr James, his son, in ther proces against the said Sir Patrick, and that upon the nixt dyet of parliament for privat affairs perremptorie, and in the mean tyme allowes Sir Patrick to sie Mr James and the earle's proces in the clark's hands.

Seafield, cancellar[ius], I.P.D. p[arliamenti]

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