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.
Sir John Riddle of that ilk v. George Drummond of Blair
Date: 22 February 1699
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Philiphaugh reported Sir John Riddle of that ilk against George Drummond of Blair. The Laird of Riddle being fined, in the late times, for his own and his lady's conventicles, in £52,000 Scots, at last a transaction was entered into, whereby he was to get a discharge of his fine, and a remission; and Blair Drummond was to use his favour and interest with the Earl of Melfort, secretary:— and for this 9000 merks was paid to Blair Drummond upon his giving them the foresaid discharge of the fine. They now raise a pursuit for restitution of that sum, with annualrent, founded on the 18th Act, 1690, and the 25th Act, 1695.
Blair alleged,—He was not in the case of these acts, which concerned only donatars to fines or forfeitures, which he was not, but only employed to do them a favour in procuring so easy a composition; and that he was no further concerned than as a factor or trustee for Melfort, and might take a gratification for his pains; as was sustained to Cambo, Lord Lyon, against Welsh of Scaron, on the 28th of January 1696.
Answered,—The act not only reaches donatars, but all other intromitters: and he who had the power and influence to obtain a discharge and remission could as easily have got the gift of this fine; so he is all one with a donatar: and it was plain concussion to give the discharge and remission with the one hand, and receive the £500 sterling with the other, or threaten him with executing the full decreet. And the case of Welsh differs; for he had an express contract, whereby they allowed him 1900 merks if he should procure a remission, and that as a remuneration of his pains, which was but like a factor's salary; which is not so here.
Some of the Lords thought Blair's case not comprehended in the Acts of Parliament, especially considering the great probability that the money went to Melfort's behoof. But the plurality agreed, That trial should be taken, before answer, who received the money; and, if Blair got it, then that he may condescend and give what evidences he can to whose use the money went; but did not require a strict probation of the same.
On a bill given in by Blair Drummond, and answers by the Laird of Riddle, the Lords, 29th June 1699, found, This case fell not within the compass of the Act of Parliament; and therefore assoilyied.
