Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Lady Towie
v.
Captain Barclay

Date: 27 January 1670

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In the process of improbation before mentioned, against Captain Barclay, being considered by the Lords, with the whole depositions of witnesses, and parties, and writs produced, for clearing of the forgery and falsehood; and, after a full hearing of the advocates for both parties, and what was competent for the Lords to do in this case, where certification being granted for non-production of the disposition and bond of 103,000 merks, whether or not the Lords might proceed, themselves, to find Barclay guilty of falsehood, and give sentence against him, as falsarius and a forger of these writs; or if all they could do was to remit the trial thereof to the justice court, to proceed therein as they should see cause; and to ordain the clerk to exhibit the whole depositions taken before the Lords, and other writs. As likewise, it was debated, whether or not, certification being granted for non-production, in law there could be sentence upon the deposition of witnesses, and their confessions, that they had forged the writs called for, which were not produced, that they might see their own subscriptions or hand writ; seeing Barclay, judicially, and being confronted several times with the witnesses, who had confessed, did constantly deny, upon oath, what the witnesses had deponed.

The Lords, after long debate among themselves, what they might and was fit for them to do ad publicam vindictam, in a case wherein they were all convinced of the forgery and falsehood: Some being of opinion, that they might proceed so far as to find Barclay and the witnesses guilty, and to inflict other punishments than capital; as they had done to several witnesses and parties, by putting of them on the pillory, and boring of their tongue and ears: And others of the Lords being of the opinion, that seeing the pursuit before them was a reduction and improbation, which, by a sentence and certification extracted, was fully determined quoad civilem effectim; all they could do was to remit the process, quoad the criminal part, to the Justice and the King's Advocate, to pursue the same criminally; and for that effect he might use the depositions of the witnesses taken, and other writs produced. At last it was resolved, by plurality of votes, that an act should be made, bearing,—That, seeing by Barclay's own advocates' confession, and the clerks of the Exchequer, and instruments produced, that he had made use of the foresaid disposition and bond, by consulting and making a resignation upon the disposition, and raising summons thereupon; that therefore they should all be declared infamous; and should be recommended to those of their number, who were upon the Privy Council, to represent the case to them, that they themselves might punish the parties and witnesses; or ordain, that they should be proceeded against criminally, as they should think fit: considering that, albeit there was never any such practice where the writs were not produced, yet, ad publicam vindictam, and to deter others who might be emboldened, upon that ground, to forge false writs, thinking to be free by abstracting the same dolose, and of purpose: the Lords found it necessary that some exemplary punishment should be inflicted, the case being of so universal importance; and that, by such contrivances, the greatest fortunes and estates in the country could not be in security.

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