Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.
Subject_2 The following CASE, and those in the preceding pages, marked as taken from 2d MS. are not found in the MS. followed by Mr Morison, while printing in his Dictionary the Cases from Auchinleck referred to in the Folio Dictionary by Lord Kames.

King Charles I
v.
The Earl of Monteith

Date: 21 March 1633

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William, Earl of Monteith, in May 1629, is served heir, by a general service, to Malise Grahame, Earl of Strathern; and at the same time, by another service, he is served general heir to Eupham Stewart, mother to the said Malise, and Patrick Grahame, her spouse, as Earl and Countess of Strathern; and, by a third service, he is served general heir to David, Earl of Strathern, son lawful to Robert the Second, King of Scotland; which David is alleged to have been father to the said Eupham, Countess of Strathern. Thir retours are sought to be reduced at the instance of Charles, King of Great Britain, &c.; by reason nothing was produced to the inquest bearing Malise to be son to Eupham, nor Eupham to be daughter to David; and, if any such writ were, the King's Advocate offered to improve the same; and, in that process, did call for all writs that anyways designed Eupham to be mother to Malise, or daughter to David, to hear and see them improven. And insisting first in the improbation, nothing being produced, certification is granted in favours of the king. Then it was excepted, by the Earl of Monteith's advocates, (himself being present at the bar,) That the retour ought not to be reduced; because he offered him to prove, by charters under the Great Seal, or extracts furth of the register, That Malise Grahame was son to Eupham, and Eupham was daughter lawful to David, Earl of Strathern. Against the which exception the King's Advocate proponed an emergent reply, That, although the exception was relevant, yet, in respect of the former certification, against all writs that were not produced in the improbation, the same could not be proven by these writs that were not produced therein; seeing certification was already granted against them, and the writs produced in the cause did not prove the exception. The Lords found the exception relevant, but not proven; 21 st March 1633;—and therefore reduced the retours, and the other writs called for to be produced and reduced; and found the King's Majesty undoubted heir of blood to the said David, Earl of Strathern, and descended from King Robert the Third, who was eldest brother to the said David; which David had no children; neither is there any succession extant descended from him or any of his brethren.

And, because the said summons concluded not only reduction of the said retours, but, per consequentiam, wilful, at the least ignorant error, against the inquest, for the which they had incurred pænam termere jurantum super assysam, it was alleged for the inquest, That no such pain could be decerned against them; neither could the king nor his advocate pursue them for error; because his majesty's advocate, compearing the time of the service, produced a renunciation made by the Earl of Monteith, of the earldom of Strathern, as apparent and undoubted heir of blood to the deceased David, Earl of Strathern, son lawful to King Robert the Second; and protested that this service should be for corroborating of the said renunciation; so the assize did no wrong, nor deserved any punishment, in serving the Earl of Monteith heir to the said David, whom the king, in accepting of the said renunciation, acknowledged to be heir to the said David. And if they committed any error, it was not wilful, seeing there was nothing produced or alleged in the contrary; but the most that could be objected was ignorance, and that not wilful, which deserved no punishment. Which exception the Lords found relevant and proven; and therefore absolved the assize from the pain concluded in the summons.—26th March 1633.

2d MS. Page 221.