Scottish Court of Session Decisions

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

Belshish
v.
Porterfield

Date: 22 June 1670

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In a declarator, pursued at Toft's instance against Sir Laurence Scot and Mr Alexander Spoteswood, advocate; the Laird of Crawfordland having right to a bond, wherein the Laird of Wedderburn was principal, and Tofts cautioner, he caused lead a comprising against Wedderburn, which did expire in anno 1664; as likewise did adjudge Tofts the cautioner's whole estate; but, before the expiring of the legal thereof, he did enter into a transaction with the pursuer, Tofts, who should have satisfied the debts, and thereby freed his own estate of the adjudication, and made use of the expired comprising against Wedderburn only, for his relief. Notwithstanding whereof, Mr Alexander Spoteswood, being employed for the pursuer, did induce Sir Laurence Scot to purchase the said right from Crawfordland, both to the comprising and adjudication, which was likewise expired; and therefore craved, in respect that the said Mr Alexander had prevaricated, that the right purchased in the name of Sir Laurence Scot might be declared not to affect the pursuer's lands. The second ground was, that Sir Laurence's right was purchased in the name of Sir Laurence only, for the sums advanced by him, to have been satisfied by the Laird of Wedderburn, or by the said Mr Alexander, for his behoof: which Wedderburn being the heir of the principal debtor, no right could be taken for his use in prejudice of the pursuer, who represented the cautioner; and therefore, the adjudication of his estate being purchased, as said is, ought to be declared null; whereupon they craved that the Lords might examine witnesses ex officio.

It was answered for the defender, That the right made by Crawfordland, both of the comprising and adjudication, being now in his person for an onerous cause, could not be taken away but scripto or his own oath; so that it was needless to examine witnesses ex officio. And as to any alleged prevarication of Mr Alexander Spoteswood, it could not prejudge him; unless it were proven, scripto vel juramento, that it was to the behoof of the said Mr Alexander, and that his name was only borrowed.

The Lords, before answer, did ordain the said whole defenders' oaths to be taken, ex officio, and any other to be condescended on by the pursuers, who had a hand in the said transaction; and that in respect of the importance of the cause, and that there was a near relation between Sir Laurence, Alexander Spoteswood, and the Laird of Wedderburn.

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