Scottish Court of Session Decisions

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

Alexander Levingston
v.
The Earl of Newburgh

Date: 26 January 1677

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Alexander Levingston, having obtained a precept from the deceased Earl of Newburgh, for the payment of £30 sterling yearly out of his pay, as captain of the King's Guard; which sum was ordered to be paid by John Will, his quartermaster,-—did pursue the Earl of Newburgh, as representing his father, for payment of the yearly annuities resting before his decease, extending to 2000 merks.

It was alleged, That the precept could not be sustained; because it wanted both the writer's name, and no witnesses were inserted; and, the body not being holograph, it was null by our law. 2d. It could not be obligatory; because it was never a delivered evident to the pursuer; but, being in the hands of the Earl of Newburgh's servant, was recovered, by an incident diligence, at the instance of Balmagies, for instructing a reason of compensation against Sir John Strachan, who had charged him, as cautioner for the Earl of Newburgh, Sir John being a trustee himself.

It was replied to the first, That the subscription being true, and not denied, and granted by Newburgh when he was captain of the King's Guard, and attending that office here, and drawn upon his own quarter-master, who received. his pay, and being granted in favour of the pursuer, who was then a gentleman of the guard, and that for the entertaining of his mother, who was aunt to the Earl, the precept, being a military act, is privileged in law; and falls not within the Act of Parliament requiring solemnities in writs and obligations; the laws of all nations freeing soldiers therefrom: and if betwixt merchants, bills of exchange and precepts for payment are binding without these solemnities; and count-books being subscribed, multo magis ought the precepts of commanders to their own soldiers to be sustained. It was replied to the second, That the precept was now in the pursuer's possession, and could not be taken away but by his oath, albeit it were not; yet, being a delivered evident, by Newburgh, to one who had a trust from the pursuer, as well as Newburgh, and it being recovered by an incident diligence, and thereupon a decreet in foro founded against this same Earl, he cannot now be heard to question the same.

The Lords did seriously consider the first point, if the precept was obligatory, neither being holograph, nor having writer and witnesses, neither being subscribed when the Earl was in procinctu, or on a march to a present occasion to fight; in which case the law of nations gives them liberty to make testaments, or subscribe other writs, and sustains them without the ordinary solemnities required in law; but otherwise they have not that privilege: And, therefore, they found it necessary that the pursuer should instruct the verity thereof, by proving that sometimes payment was made; or that the precept was made use of for instructing accounts given up by the quarter-master; or some other pregnant presumption; without which they thought it hard to sustain the same as a valid and a lawful deed. And, as to the second, they found, That, it being in the pursuer's possession, to whom it was granted, and made use of in judgment against the same defender, that it could not be taken away but scripto vel juramento.

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