Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Henderson of Fordell v. Monteith of Caribber
1676, 1677, and 1678.
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1676. December 5.—Fordell Henderson, as heir of tailyie to Monteith of Randifoord, obtained, at Secret-Council, the charter-kist to be given up to him, and Monteith of Carybber to be dispossessed, and himself put in possession; because the beginning of Carybber's possession was precarious, as a factor, and the disposition by which he acclaimed the estate was suspected of falsehood, and improbation of it depending before the Lords of Session. It was wondered how the Council could find this a competent business for them, it neither being a riot nor metas majoris tumultus, but merely civil. When the improbation came to be tried in February 1677, there being only two subscribing witnesses in the disposition, one of them, who had been Randyford's servant, and who was mightily suspected to be bribed, disowned his subscription; which tells us that frequent error of taking the subscriber's own men-servants or sons, to be witnesses in the writs granted by them. Mr George Norvell ever advised that writs, especially if of moment, should be subscribed before famous and honest witnesses; and yet it is little looked to. Which draws many writs in hazard, mean fellows being easily corrupted to deny their subscriptions.
Advocates' MS. No. 513, folio 267.
1677.November 8. We have showed supra, No. 513, 5th December 1676, that, in the improbation raised by Fordell against Carybber, of the disposition made by Randifurd to Carybber, one of the subscribing witnesses to the disposition, whose name was Gumming, had, upon oath, denied and disowned the same. Thereafter, one Alvas, servitor to Mr Robert Colt, advocate, was dealing with the said Cuming, the witness, to pass from his first disposition, and to acknowledge the subscription; and thereupon drew up the draught of a bill, which he desired him to subscribe, and give in to the Lords. It bore, that he had been practised and influenced to deny his subscription; and therefore craved the Lords would allow him to mend his former deposition. He desired some time to advise upon the bill, and kept it till the Session met, and then gave in a bill showing how he had been dealt with (suborned) to resile from his former testimony; and gave in the draught he had received from Alvas. However, there being great presumptions against him of his prevarication, both he and Alvas are confronted. Alvas denies, at least says he gave him warrant to draw that bill; the other asserted the contrary. The Lords sent them both to prison. At last they were bailed and let out, upon caution to reproduce them, when called for, under the pain of 1000 merks,
Caribber has raised a summons of astruction of his disposition from Randi-furd, upon missive letters written by Randifurd to him, showing he would leave him his estate. This is a new sort of summons. Item, quæritur if one's first deposition is more to be trusted, or his retractory one. See thir parties, infra, No. 708. See the decision of this cause, where Caribber gains it, at the 9th of July 1678, [below.] See Lanfrancus Balbus, Decisione 509; Julius Clams, in Praxi Criminali, quæstione 53, § finails, per totum, where he shows it is communis opinio, if a witness contradict his first deposition, statur priori examini seu depositioni.
The Lords, in another case, have ordained this point to be debated in their own presence,—How far a witness, ex intervallo, (for incontinenti he may,) may seek to rectify and alter his deposition, to the prejudice of him in whose favours he deponed formerly, to whom there is a jus quæsitum, which ought not to be taken away from him without his own consent; L. 11 D. de Regalis Juris; and whether the first or second deposition is most prevalent; and if the second derogates, as in laws, testaments, contracts, &c. See Cavalcanus de Testibus. For a reprobator, it does not always convel the testimonies to this effect, to rescind the decreet founded on those testimonies, as its probation. See Mackenzie's Pleadings, Sir John whytfoord of Milneton and the Lady.
Advocates' MS. No. 650, § 6, folio 305.
I678. January 12.—Monteath of Caribber and his son are pannelled before the Criminal Court, by Henderson of Fordell, (see of this, supra, [No. 650,] sect. 6.) for suborning Cuming, by the aid of one Alves, to depone falsely. The Justices laid it over till the civil prejudicial action betwixt them, depending before the Lords, were discussed.
Advocates' MS. No. 708, folio 316.
July 9.—The Lords advised the improbation pursued by Fordell Henderson, against Monteith of Caribber, of the disposition made by Randiford, of his estate to Caribber. (See 8th November 1677.) The Lords assoilyied from falsehood, and sustained the disposition, and found it probative, unless Fordell would offer to prove, that, at the time of Randiford's death, it was an undelivered evident, and lying among his papers; for it contained no clause dispensing with the not delivery. Fordell was so confident, that he hoped the Lords would find the disposition false, upon Cumming denying his subscription; (but the Lords were persuaded that Cumming did prevaricate;) and the least he promised himself was that it should be found a writ null of the law, as only standing upon the testimony of a single witness. This made him bestow very liberally; which he was the better enabled to do, that the Secret Council had given him the possession medio tempore; and the Lords had not ordained any restitution of the bygone fruits, reputing them as bona fide percepti et consumpti, on the Council's warrant. This interlocutor surprised many as unexpected. See the full case in the Informations.
