Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Mr Archibald Stewart v. Wieland
Date: 5 December 1671
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Mr. Archibald Stewart, son to the Countess of Murray, alleging and suspecting one Wieland, a servant of his mother's, to be an ill instrument betwixt his mother and him, causes him at a time grant a bond obliging himself, under the pain of 1000 merks, to remove from the countess her service at Martinmas last. He being charged upon this bond to pay the penalties, the poor man deals to get a suspension; and the Ordinary hearing the parties upon the bill, Wieland craved the charge might be suspended, because he would not dip upon the way of extorting the bond from him, but offered present obedience and implement thereof.
To which it was answered, He had incurred the penalty, and could not offer obedience now; seeing he had staid in the house ten days after the term at which he obliged himself to remove, and yet haunted the house to the charger's prejudice.
Replied, Ten days was modica mora, wherein non est prejudicium; that such obligements are not to be taken judaice but
that his going to the house since deserved no censure, being a part of that freedom competent to all the lieges of going where they please, especially seeing he serves no more there.
The Ordinary inclined to find the charge calumnious. Yet the Lords in presence found he should pay the penalty of the bond, if he had contravened the tenor of it.
