Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Brisbane of Bishopton v. Andrew Scot
Date: 5 January 1699
Click here to view a pdf copy of this documet : PDF Copy
Shaw of Bargarran, and Brisbane of Bishopton, being debtors by bond in 1000 merks to John Scot, merchant in Glasgow, and, failing of him by decease, to Andrew Scot, his brother; and the said John being three years absent out of the kingdom, a report came to Glasgow that he was dead; whereon Andrew adduced some witnesses, before the bailies there, of his being habit and repute dead, and thereon registrates the bond as substitute; and, taking out a caption against Bishopton, apprehends him: where he is kept a week or two in the jailer of the tolbooth's house, capitulating, during which time John Scot returns; whereupon he is liberated, and afterwards transacts the debt with the said John, and pursues Andrew for wrongous imprisonment, and obtains a decreet against him for £246 for his damage and expense, and £100 Scots of fine to the fiscal.
Thisdecreet was suspended on thir reasons:—1mo. He was in bonafide to believe the debt was his own, having received letters of his brother's death; and so his caption was warrantable, seeing Bargarran was lapsus, and Bishopton, a liferenter, vergens ad inopiam. 2do. Bishopton's legal method was to have suspended on this reason,—that the creditor in the bond was yet presumed to be alive nisi probetur mortuus. Stio. The bailie was precipitant and unjust in taking Bishopton's oath on so absurd and exorbitant accounts for detention for a week or two; and there was neither dolus nor lata culpa on Andrew's part, but a pure mistake.
Answered for Bishopton,—He was not obliged to suspend a charge so covetous and unjust, where one would anticipate his succession before it fell due; and he offered to pay, Andrew giving him warrandice at his brother's hands if alive; which he refused, as an instrument against him proves: and, esto his brother had been dead, yet he could not summarily charge without a service or confirmation to complete his right.
Replied,—Where a substitution runs in thir terms,—that the sum is made payable to one and his heirs; which failyieing, to such another nominatim, that person cannot have access till first there be a cognition that the heirs of the institute's body have failed; but if it run to Titius, and failyieing of him by decease to Sempronius, in that case our law neither requires service nor confirmation; but the substitute may call for the money without any other solemnity, save to prove that the first person is dead, if it be denied. See Stair, 14th January 1663, Beg against Nicolson; and 3d July 1666, Fleming.
The Lords were clear there was no need of serving or confirming in this case; but some inclined to see what documents he had to lead him to the belief that his brother was dead; others thought he was in culpa, seeing the money was offered him on his warranding against his brother, which he refused; therefore, without any farther trial, they found his detaining Bishopton unwarrantable, but reduced the bailie's modification of the expense as too high, from £246 to 100 merks, and assoilyied from the rest; as also suspended as to the fine adjudged to the procurator-fiscal, as exorbitant and oppressive.
