Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1684.
Lockhart, Menzies, &c v. John Elies of Elieston
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January 8.—Mr John Elies's action of relief against the Co-tutors of William Lockhart, mentioned 16th March 1683, is again reported by Kemnay; and the Lords decern them to relieve him pro ratis portionibus of what he shall be decerned in, upon the event of his count and reckoning with William Lockhart: and decern them to concur with Mr John in defending against the said William. Vide 24th January 1684.
Vol. 1. Page 257.
January 24.—Mr John Elies of Elieston's cause against Menzies of Culterallers, Lochart of Lee, Robert Chiesly, and the other Co-tutors, (mentioned 8th January current,) being reported by Kemnay; the Lords repel the allegeance proponed for Culterallers, and find him liable as tutor; and decern him to-concur with the pursuer in the count and reckoning at William Lockhart's instance; and find he is liable pro rata to relieve the pursuer for what shall be decerned against him therein; reserving to his procurators to be heard in the said count and reckoning, upon this point, If he can be liable to relieve Mr John Elies the pursuer of what shall be decerned against the said Mr John, upon any ground arising from his own dole and fraud: and repel the allegeance proponed for the said Robert Chiesley, and decern him to concur in the said count and reckoning; and find him liable to relieve the pursuer pro rata of what shall be decerned against him therein: as also decern against the Laird of Lee; and find him liable to concur with the pursuer, and to relieve him pro rata. But, if the Laird of Lee his procurators shall apply to my Lord Kemnay, recommend to him to hear them upon any special defences for him not proponed already. Vide 16th December 1684.
Vol. I. Page 263.
December 16.—Mr John Elies's action of relief against Lockhart of Lee, &c. mentioned 24th January 1684, is reported by Kemnay; and the Lords repel the special defence proponed by the Laird of Lee, and likewise the special defences proponed for Culterallers and Robert Chiesly, in respect of the answers made thereto; and repel the condescendence given in by the said defenders, of Mr John Elies his fraud and dole, in respect of the answers made thereto; and decern the defenders to concur with the pursuer, in defence of the process of count and reckoning at William Lockhart's instance against the pursuer; and declare they shall be liable to relieve the pursuer proportionally of what he shall be found liable in to the said William Lockhart, at the event of the count and reckoning betwixt them.
Lee's defence was, that he acted not as tutor, but by virtue of a separate right, viz. the disposition in trust, granted by John Lockhart to him.
Culterallers' and Chiesly's defences were, 1mo, The warrants whereon Elieston was found tutor, wanted witnesses, and so they denied Bailie Chiesly's subscription. 2do, Elieston was the sole contriver and carrier on of that disposition of trust, and declarator of liege poustie, by which the lesion and damage arose to William Lockhart the pupil; et nemo debet ex suo dolo lucrari, vel actionem mandati contra contutores habere.
Answered,—1mo, There are four parties subscribing; which supplies the want of witnesses, each being witness to one another: as was found on the 22d July 1676, Forret, &c. against Maxwell of Pollock; and on the 20th of February 1680, Nisbet against Bruntfield. (But these were in re mercatoria; And see a contrary decision in Dury, 14th Feb. 1633, Rankine.) 2do, The other warrant has witnesses, and ob indivisibilitatem actus it must sustain; as if I subscribe a submission before witnesses, and the blank on the other side for the decreet-arbitral without witnesses; as was found in Dury, 26th January 1625, Ferry against Johnston. 3tio, As to the fraudulent contrivance, it is denied. Et dolus non præsumitur, et qaævis causa probabilis excusat. And Elieston truly thought that disposition a valid deed; and, esto it had been a fraud, the co-tutors were as deeply engaged in it as he; and so can never liberate themselves from relieving him, on that pretence.
There being bills given in against this, and the parties of new heard in presence; the Lords, on the 28th January 1685, notwithstanding of what is alleged for Culterallers and Robert Chiesly, adhered to the former interlocutor; and ordained them to concur with Mr John Elies in the defence of the process pursued against him by William Lockhart. And find and declare that they are liable to relieve Mr John pro rata, of what shall be decerned against him in the count and reckoning at the said William's instance; and particularly of any damage arising to the said William, upon account of the disposition of trust granted by the deceased John Lockhart, and of the decreet of declarator of liege poustie thereafter obtained.
Vol. I. Page 320.
See prior, intermediate, and posterior parts of the Report of this case, in the Index to the Decisions.
