Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Auchinleck of Balmanno v. Sir Thomas Murray of Glendoick
Date: 3 December 1697
Click here to view a pdf copy of this documet : PDF Copy
In the process, Auchinleck of Balmanno against Sir Thomas Murray of Glendoick, it was alleged,—There was a communing betwixt the late Lord Glendoick and Balmanno, where there was a greater price condescended upon for the land; and that there could not be locus pœnitentiœ here, seeing res was not integra; because, on the faith of that communing, Glendoick got up the charterchest, which made rei interventus to complete the bargain; and Glendoick's own notes, extracted out of his holograph book, acknowledge a communing; and therefore Balmanno craved the communers he should condescend on might be examined on the terms.
Answered,—Imperfect communings signify nothing; for I seeing you could not make me a right, I transacted with the apprisers, and acquired in the preferable rights, and possess by those; and you cannot examine communers to take away my right.
The question arose, Whether they could be admitted till it were first proven, scripto vel juramento of Glendoick, that they were communers, else all writ might be subverted; and to allow them to swear themselves to be communers was a singular unparalleled practice; no more than a man can swear himself to a witness by his causa scientiœ, or can be admitted to depone anent the terms of depositation till it be first proven he was depositary.
The Lords, for shunning the dangers of the preparative, ordained the pretended communers condescended on by Balmanno to be examined ex officio, and before answer, not upon the terms of the communing, but if they were communers in that affair, and who others were present, and where they met, and what evidences they can give of their having been employed as communers; and, if that be sufficient to clear the Lords, then they declare they will hear Glendoick why they should not be examined on the terms of the communing, and what they shall import to make him liable either actione quanti minoris to give a greater price, or receive his money laid out, and quit the bargain; and likewise allowed Glendoick to condescend on such as he knew to be communers in that affair, to be examined in the same manner with Balmanno's, if he thought tit.
