Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1680, 1681, 1682,and
1683.
John Elies and the Earl of Southesk v. The Duke of Hamilton
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1680. June 17.—In the action for proving the tenor of a bond, pursued by Mr John Elies, elder of Elieston, against the Duke of Hamilton; the Lords having allowed Mr John to lead his old witnesses, it was objected against Sir Michal Nasmyth of Posso, that he was a bankrupt, lying in prison for debt, and not worth the King's unlaw.
This was repelled by the Lords: but this they sustained to reject him, that he had threatened to do Duke Hamilton an evil turn. Only, objections against witnesses should be instantly verified. See 24th Dec. 1680.
Vol. I. Page 102.
1680. December 24.—In Mr John Elies's action against the Duke of Hamilton for proving the tenor of a bond; alleged, The casus amissionis of the bond was not fully libelled. Answered,—The summons bore, that the bond was lost and amissing, and casus amissionis in proving tenors is inter ea notoria quæ allegari quidem debent sed non probari. Replied,—Though they be not burdened to prove the casus amissionis, (which ofttimes is latent and impossible,) yet it must be specially condescended upon, that the defender may object against it; and that, by a general, (in quibus latet dolus,) we preclude him from redarguing and convelling it.
The Register gave the Lords' answer upon this; but, in his own sentiments, he repelled the allegeance. Vide 22d Jan. 1681.
Vol. I. Page 124.
1681. January 22.—In Mr John Elies's cause against Duke Hamilton, (24th Dec. 1680,) the Lords found,—if the action for proving the tenor had come in incidenter, upon another principal action depending between the Duke and him,—they would have granted a summary enrolling and hearing thereupon, in the Inner-House, as they did lately in Lady Mary Cunningham and Sir John Maitland's case against Cardross: but here they could not; because the process, whereon the proving of the tenor depended, was only betwixt Southesk and Elieston, and therefore Elieston behoved to enrol in communi forma. Vide 26th Nov. 1680, Lockhart; and 16th June 1681, thir parties.
Vol. I. Page 127.
1681. June 16.—In Mr John Elies his action for proving the tenor of a lost bond against Duke Hamilton, (22d Jan. last;) Alexander Gelly, writer, being adduced as a witness, and it being objected against him that, by a letter written to Elieston, he had declared what he knew of that bond, which was pro-ditio testimonii:
Answered,—A witness might lawfully do this, where there was no good deed neither given nor promised.
This being reported by Nairn, the Lords found the objection amounted to this importance, that he should only be admitted cum nota.
In the same cause, upon another report of Nairn's, the Lords, on the”21st June 1681, found Alexander Gelly's letter ought to be delivered up to him, before he be obliged to depone, and ought not to be keeped over his head, as a check to curb the freedom of his testimony, or to found any pretence of perjury a-gainst him, if his deposition should happen to differ from what he had written.
Vol. I. Page 142.
1682. February 7.—Mr John Elies and Southesk's cause against the Duke of Hamilton, (22d Jan. 1681,) being advised; the Lords found the casus amissionis sufficiently instructed; and sustained the adminicles adduced. And found, by the writs and depositions produced, the tenor of the £1000 sterling bond was fully proven; and therefore decerned in the said tenor.
Duke Hamilton clamoured how dangerous this might be, to make up personal bonds which might be satisfied, retired, and cancelled, without taking a discharge, which many did not judge necessary, and that by the depositions of witnesses; and what made it the harder was, that the testes instrumentarii, viz. Robert Kennedy and Hamilton, did not remember distinctly, their subscriptions not being present to show them for refreshing their memories; but there were many adminicles in writ here. Anent non memini, see Balmano's Practiques, tit. Improbation; and Dury 1636, Lord Banff.
Vol. I. Page 171.
1681–2. Session.—In Mr John Elies his proving the tenor against Duke Hamilton, (7th Feb. 1682;) Sir Michael Nasmyth of Posso being adduced as a witness, the Duke objected that he was a bankrupt and in prison for debt. The Lords notwithstanding admitted him.
Yet I find Mascardus affirms carceratum non plene probare ut testem, sed re-cipi debase cum nota.
Vol. I. Page 182.
1683. March 2.—The Earl of Southesk and Mr John Elies against Duke Hamilton, (mentioned 7th Feb. 1682,) is reported by Saline. The Lords sustained the summons for payment, though dated before the decreet making up the tenor of the bond, seeing the debt was in being before that decreet; but allowed the Duke to propone compensation on debts either already liquidated or shortly liquidable.
The words were:—Sustain process, notwithstanding of the allegeance proponed by the defender; but declare that what the defender's procurators shall propone by way of compensation, being de proximo liquidandum, they will receive the same in this process, it being always liquidated before sentence to be obtained by the pursuers. Vide infra, 22d current.
Vol. I. Page 224.
1683. March 22. —The Earl of Southesk and Elieston against Duke Hamilton, (mentioned 1st March 1683,) being reported by Saline; the Lords,—before answer to the defence upon the order of discussing Duke William the debtor's heirs of line, viz. his daughters, before the present Duchess of Hamilton, who is but his heir of tailyie, and the condescendance on Inverwick as the subject of the discussion,—ordain Southesk to produce his contract of marriage, containing a renunciation of all that his Lady, one of Duke William's daughters, could claim, save only this legacy of Mr Livingston's bond of £1000 sterling, now pursued for; and the Duke to produce the obligement given by the heirs of line, that they shall relieve the heir of tailyie, also founded on.
