Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Hendry Fairbairne, and The Jailor of Cannongate,
v.
Bartill Kello

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Hendry Fairbairne being warded, at the instance of Bartill Kello, in the tolbooth of the Cannongate, for not paying of the sum of 1000 merks, contained in the said Hendry his bond made to him, he escapes cut of ward, and leaves the country. Bartill obtains decreet against the bailies for payment of the said sum. The bailies recover decreet, for their relief, against Thomas Robertson, their jailor, and his cautioner. For both their reliefs, a summons is raised, at the instance of the said Hendry, for reduction of the said bond granted by him to the said Bartill, which was the ground of the said action, ex capite minoritatis. After citation made to the said Bartill by the said summons of reduction, Bartill raised summons against the said Hendry, to give his oath de calumnia, whether he had just cause to insist; with certification he should get no process. Bartill proponed, likewise, an exception, that the said Hendry was major, and summoned the said Hendry to give his oath de calumnia, if he had just cause to delay his execution. After this, the jailor,—for his own relief, and finding that the said Bartill thought to take advantage of the said Hendry his absence, and by getting him holden pro confesso, for not giving his oath de calumnia, should thereby free himself of the said action of reduction, and of proving his exception of minority, —he intents a new summons against the said Bartill, desiring the said action intented by the said Hendry to be transferred in his person active; in respect the first action was intented by the Lords' ordinance, and pursued for his relief and behoof. It was alleged by Bartill, That it was a novelty to transfer but at the instance of heirs, executors, or assignees; and, ante omnia, Hendry must give his oath de calumnia. The Lords granted transferring and found no certification could be granted against Hendry that could be prejudicial to Thomas Robertson, at whose instance the transferring was sustained.

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