Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
John Hill v. Murray of Spot
Date: 10 December 1701
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Spot's father, when he acquired these lauds from Douglas of Spot, he granted him a back-bond, declaring them redeemable from him on payment of forty thousand pounds Scots. Douglas assigned this back-bond to Helenor Dawson his wife, and she in favour of Mr Hill, her second husband: and he pursuing Murray of Spot, on his father's back-bond, he proponed and raised improbation against it; and craved, 1mo. That Hill and his lady should abide at the verity of it sub periculo falsi; 2do. That they find caution, to the value of the estate, to attend all the diets of process, and undergo the punishment as an user of a false writ, if it be found so; 3tio. That he design a domicile in Edinburgh, at which he may be cited.
Answered to the first,—They are ready to bide by the verity of the writ, and have several holograph missive letters to astruct and adminiculate it; but being infirm, and unable to travel from London this winter-season, they were willing to subscribe their abiding before any commissioners whom Spot should name at London. 2do. Caution to the value is only sought to fright the pursuer, a stranger, and to force him to abandon his just claim; for it is impossible that he or any man can find such caution. To the third,—The pier and shore of Leith is the legal domicile of strangers out of the country; but if the Lords require a special one to be designed at Edinburgh, as his lawyer's or agent's house, he shall do it.
It was replied,—That biding by a writ that was quarrelled of falsehood was of that moment and importance that it could not be taken on a commission, but the user's personal presence was necessary; for, when the Lords found presumptions of the forgery, they used to send them to prison; as they did to Barclay of Tome's Witnesses, Captain Rutherford, and others. As to the second,—Caution for a small sum was no sufficient check against forgery.
The Lords found the parties might abide at the verity of this back-bond on a commission, and directed one to the secretaries of state; and found the caution needed not be equivalent, and therefore modified it to £200 sterling; and ordained him to design a special domicile within the Town of Edinburgh.
