Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1683 and 1684.
Sir William Purves v. James Keith and The Earl of Marishall
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1683. December 20.—Sir William Purves, his Majesty's solicitor his action againt Mr James Keith and the E. of Marishall was advised. The case was, Sir William Purves long ago disponed a comprising of my Lord Gray and Lord Marishall their estates, to James Allan, writer to the signet, who, in the warrandice, takes him obliged not only to warrant the formality and legality of the executions of the denunciation of the apprising, but also the reality, verity, and truth thereof. Thereafter, Mr James Keith, also a writer, having acquired the right of this comprising from James Allan, not for his own behoof, (as was thought,) but for the Earl of Marshall's use, he designedly, (as is affirmed,) to come back upon Sir William Purves for his special warrandice foresaid, causes another appriser of Marishall and Gray their estates, raise a reduction and improbation of Sir William Purves's apprising against Keith himself, as now having right thereto. And though, in law, after 24 years from the date of an apprising, one is not bound to produce the executions of his comprising, seeing the same messenger who denounces the lands, is oftlimes also judge to the decreet of apprising, and that they are loose papers easily exposed to perishing; yet if they be produced, they may be improven as false. And so Mr James Keith tamely produces the executions and all. And the two witnesses therein being examined, they depone, they do not remember that they were adhibited witnesses to that execution, or knew that messenger, or were ever upon the ground of these lands. Whereon the Lords improved the execution and found it false, (which is hard:) and so, the apprising falling in totum, Mr James Keith recurs back upon Sir William Purves, on the special conception of his warrandice, which he had inadvertently given too large. On this Sir William Purves raises a reduction of that decreet of improbation, on thir three grounds:—1mo, That Mr James Keith had lost his right, because, by the 214th Act 1594, members of the Session are discharged to buy pleas; ita est, there was a depending process on this when he took a right to it from James Allan.
Answered, for Mr James Keith,—lmo, He was not then a writer, for he had deserted his employment about a year or two before. 2do, By his acquisition, non fecit conditionem adversarii deteriorem et duriorem, (which is the reason of law against these purchases;) for he had bought it from Mr Allan, another writer; and Sir William Purves, his author, was also a member of the Session; and so they were as ill with him; et privilegiatus contra privilegiatum non utitur suo privilegio. But, 3tio, Esto he were in the case of the Act of Parliament, the most that could be inferred from the Act, is not losing of the causes, but only deprivation; even as a beneficed person's tacks set for a longer time than is allowed by law, are not declared null by the act of Parliament 1617, but only the setters are declared infamous. See Dury, 16th November 1624, Hope against The Minister of Craighall.
And as the 133d Act, Parliament 1584, discharging ministers to be notaries, except in testaments, non prucedit annullando actum; even so, here, all the certification adjected to the Act is only the deprivation of the buyer; as was decided by the Lords in 1611, Maxwel of Dramcoltrain; and on the penult, of July 1635, M'Gill, observed by Dury. See Stair, tit. 10, Of Conventional Obligations, § 64; and Hope's Tractate on Reductions; as also Vinnius, lib. 1, quæst. Must. cap. 1, who is clear ubi lex procedit non annullando actum sed irrogando aliam pænam, that there the Act subsists, and the pæna is only due.
It was Answered,—Though the said Act mentions only deprivation, yet the said emption must be also null: 1mo, Because the Act is conceived in thir terms: “It shall not be leisome,” id est, erit illicitum. If so, then it is contra legem, et ergo ipso jure nullum; at least declarable to be null in a reduction. 2do, Loco pænæ succedit damnum et interesse partis; which is here the whole cause and value of the plea itself. 3tio, Vinnius, ibid, says, pæna nonnunquam adjicitur etiam annullationi actus: and so it is both null and punishable.
Yet the Lords found the said Act of Parliament proceeded non annullando actum seu emptionem, sed tantum ad irrogandam pænam; and that the tract of the Lords' decisions had hitherto expounded it so; and confessed there were great inconvenience in sustaining such sales, but they could not redress it, that being work for a Parliament; and that Judges, tied to the laws as they were, had not power to alter laws ob incommoda urged against them; and that arguments ab incommodo ought not to move Judges to recede from established laws.
Quceritur if the Acts of Parliament discharging penal statutes, or the Act of Grace in March 1674, discharges also the penalty of this Act against buying pleas. 2do, If lands in dependance be gifted, the acceptation does not seem to fall under the compass of the prohibition of this Act. 3tio, If the disposition or assignation to a res litigiosa be ex causa necessaria, as for relief of cautionry or payment of debts, it will not hinder but I may purchase them. 4to, Quæritur where lands are under plea, and one takes a disposition to them to a member of the Session in trust upon a back-bond, if this would be a violation of the Act, seeing this is not a formal buying. Yet this course would elude the Act.
Sir William Purves's second reason of reduction was, That this transaction, made and acquired in by Mr James Keith, was to the Earl of Marishal the debtor's apparent heir's behoof. This being denied, the Lords, before answer, ordained Mr James Keith, the Earl of Marishal, and any others Sir William Purves condescended on, to be examined anent the trust.
The third reason of reduction was, That nothing should take away the executions of a comprising, especially post tanti temporis intervallum as twenty-six years, except the clear liquid and positive depositions of the messenger and witnesses denying that they were ever employed in such an act: but here they are not positive, but only as to their memory, which may easily forget after so long a time; and that it is probable they were witnesses; for they dwelt in the very next land to thir lands denounced and apprised, and it is ordinary to take the witnesses from the neighbourhood.
This third point was not then decided. Vide 10th January 1684.
Vol. I. Page 252.
1684. January 10.—In the case between Mr James Keith and Sir William Purves, mentioned 20th December 1683; the Lords examined Sir George Lockhart, Sir John Dalrymple, Mr David Dewar, Mr George Bannerman, and the Earl of Marishall's other advocates, what they knew of the Earl of Mari-shall's trusting that comprising in Mr James Keith's name; yea, what they believed in their private judgment, and to whose behoof they thought it; which was to cause them depone on their fancy and opinion. But it was judged not convenient to shroud themselves under that privilege of advocates, ne teneantur secreta clientum detegere; seeing this was the detection and expiscation of a fraudulent conveyance, which it is not an advocate's credit either to advise or conceal.
Mr David Dewar discovered all, that it was for the Earl's behoof; and that he was against the acquisition of it.
