[1696] 4 Brn 308
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir John Gordon of Park, and Gordon of Rothemay,
v.
Abernethies of Mayen and Isobel Hacket
1694 ,1695 , and1696 .Click here to view a pdf copy of this documet : PDF Copy
1694. July 13.—John Gordon of Park, and Gordon of Rothemay, against Abernethies of Mayen, and Isobel Hacket the relict, anent repairing the damage and expense they had been put to by a false and treacherous act of James and Alexander Abernethies, in cutting out of the public registers of the nation the decreet loosing the interdiction on my Lord Salton, by which wicked contrivance they suffered a vast loss; and their guilt and accession thereto was inferred from sundry pregnant qualifications and presumptions.
Alleged,—They were but the representatives and successors of the alleged fraudulent contrivers; and, by the Roman law, hœres non tenetur ob delictum defuncti, nisi lis fuerat cum eo in ejus vita contestata; because reason presumes he might have had several defences for purging the crime, which his heirs neither can, nor are obliged to know; even as in vitious intromissions, where it is not constituted against the party in his own life, it is only restricted quoad his heir, to an actual intromission, and is not a universal passive title.
Answered,—Even by the Roman law, in condictione furtiva, the heir is liable in quantum ad eum pervenit, and if he was locupletior factus; and this lucrum was not restricted to the profit redounding and arising from the delict, but was the advantage they had by their succession to the delinquent; and the distinction of lis contestata cum defuncto was a mere subtilty and nicety of that law, which other nations had not admitted. 2do. It was contended, that the Parliament 1690 refused to sustain process at my Lord Argyle's instance against the heirs of Lord Newton and Forrest, for condemning his father, and refunding his damages; the Parliament thinking it hard to question judges for their opinions in law, though mistaken therein, and much less their heirs after their decease. But the Parliament did not decide this, but only stopped process at Argyle's instance, because he had no title established in his person, as heir or executor, to claim thir damages: though such actions were sustained at Venice, and at the Parliament of England. And Thomas Robertson's Heirs were reached in 1687, by a decreet of the Lords, for their father's undermining the walls of a house in the Kirk-heugh, near the Parliament-house, by seeking a foundation to his own houses.
The Lords generally thought it a new and unpathed road to make heirs liable in such cases, and which might be a dangerous preparative; therefore some were for remitting it to the Parliament, as altioris indaginis, and above the Lords' jurisdiction; and others proposed, before answer, to take a probation anent all the qualifications of the Abernethies' accession to that false contrivance,—reserving the consideration how far the relict and heir shall be liable to refund and repair the pursuer's damage sustained by that fraudulent cheat. But the plurality carried to determine the relevancy first, ere any probation should be received; and, because it was a momentous point, to hear them further thereupon in their own presence.
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