Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1685 and 1686.
Sir Alexander Home of Renton v. Sir Patrick Home, his Brother
Click here to view a pdf copy of this documet : PDF Copy
1685. November 21.—Sir Alexander Home of Renton pursues Sir Patrick Home, his brother, for count and reckoning of what debts he has defrayed by the tack set to him by their father, for paying those debts, and yet they were as great now as at the father's death. And the rental of the lands being admitted to Sir Alexander's probation, he had got some to swear on a very great rental, 3000 merks by year more than it was set at or paid, the time of his father's death. Sir Patrick mainly objected against one Dickson, who, in 1677 being examined, had deponed he knew not the rent; but, in 1683, being re-examined, is very clear on every article: and he urged sundry contradictions in the two oaths to infer him perjured, and that standum est priori examini in this competition, there being jus quæsitum to Sir Patrick by it; and that many famous lawyers thought neither of the two oaths ought to be credited; I. 16 D. de testibus.
Answered,—He might remember more in 1683 than in 1677, (yet the one is recenter than the other,) and he might be more fully examined the last time. 2do, Many deponed on a rental twenty or thirty yeara ago, which could not instruct what it was at Lord Renton's death, thirteen or fourteen years since. 3tio, They depone not what a roum does pay, but what it might, if it were well stocked and laboured; which can be no rule for a master: because a tenant must have his own profit and benefit (over and above what he pays to his master) to live on, otherwise he could not keep it.
Yet the President said, such witnesses were to be understood thus, that they meant the roum could pay so much deductis deducendis, and allowing to the tenant his due.
The Lords inclined to reject Dickson's testimony; but,—finding that the rental on which Sir Alexander's witnesses deponed, was, by negligence, neither subscribed by the Lord, clerk, nor witnesses, and that there had been a rental made after Renton's death, by Lanton and Sir Hary Home, chosen by both,—they ordained it to be produced; and recommended, in the mean time, to some of their number to settle the parties if they could.
Vol. I. Page 376.
1686. February 9.—Sir Alexander Home of Renton gave in a bill against Sir Patrick, his brother, complaining that he had caused loose out sundry sheets in an act of litiscontestation betwixt them, and insert new sheets therein with alterations. This being a forgery of a high nature against an advocate, Sir Patrick gave in a counter-bill, craving it might be tried, for his vindication, and the drawer of the bill censured.
