Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Henry Fairbairn
v.
Bartilmo Kello

Date: 22 January 1629

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Henry Fairbairn being addebted in 1000 merks to Bartilmo Kello, by virtue of letters of caption, was apprehended and incarcerated, by Bartilmo, in the tolbooth of the Canongate; out of which he having escaped, Bartilmo obtained a decreet against the bailies and jailer for suffering him to escape. They, to free themselves of the debt, intent an action of reduction and restitution, in integrum, in name of the said Henry Fairbairn, against Bartilmo, ex capite minoritatis. In which action there was an exception proponed by Bartilmo, that he offered him to prove that the said Henry was major the time of the subscribing of the bond. For proving of the which exception there was a day assigned to the excipient. Before the day, the defender raiseth a summons against the said Henry, to give his oath de calumnia, that he had just cause to pursue the libel. The day taken by the defender to prove his exception being come, and he having produced nothing for proving thereof, the pursuer extracts an act, and craves the term to be circumduced. Answered, He ought not to produce any diligence before the pursuer gives his oath de calumnia. Replied, That the action being pursued to the behoof of the bailies and jailer, and for their relief, although they used Henry's name, his contumacy could not prejudge them; yea, albeit he were present and would depone, yet he could not do it in their prejudice, he being bankrupt, and bearing ill will at them for detaining him in ward. The Lords would not hold Henry as confessed, to work any thing in prejudice of the bailies and jailer. Further, the said bailies and jailer craved that the said action of restitution, in integrum, might be transferred in their persons. Answered, The action could not be transferred, seeing there can be no transferring but in the person of an heir or successor, &c. The Lords sustained the transferring.

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