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.
Sir James Fleming of Rathobyres v. Hay of Drummelzier and George Caldton
Date: 24 February 1702
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Philiphaugh reported Sir James Fleming of Rathobyres, late Provost of Edinburgh, against Hay of Drummelzier and George Caldton, merchant in London. Sir James Rochead being infeft in Cockburn's estate, for security of 44,000 merks he had lent him, and having disponed it to Dame Magdalen Kinloch, his lady; and she having transferred a part of it to Sir James Fleming, and he insisting for payment against Drummelzier, who bought the lands at a roup, compearance is made for George Caldton, an English merchant, and John Plenderleith, writer, his factor; who produce a disposition to the same money, made to the said George, by James Rochead of Inverleith, as heir to his father, and an infeftment following thereon.
Against which it was alleged, for Sir James Fleming, that they offered to prove, by Plenderleith the factor's oath, that he not only received the factory, but even Caldton's disposition and seasine from Inverleith; and so, they having come back to the debtor's own hands, it was instrumentum apud debitorem repertum; and so presumed to have been solutum or retired.
Answered,—Esto it were so, (as was denied,) yet that brocard had many exceptions in law, ubi alia conjectura sumi potest; as, if the creditor trust the debtor with his bond to cause take infeftment, or when he has it from another than the creditor. That it is only prœsumptio juris, and admits of probation in the contrary; and real rights on lands are not extinct by retirement, without renunciation or discharge, though personal rights are so. 2do, Sir James craved preference to Caldton, on this ground, That, before Inverleith's disposition to him, Sir James had intented a process against Inverleith, to denude of the said right, in terms of his father's conveyance of it to his mother; and, seeing alienatio rei litigiosœ prohibitur, pendente illa lite nihil erat innovandum.
Answered,—Sir James Rochead's conveyance to his lady being only general and personal, any process against Inverleith, raised thereon, to implement and fulfil that personal obligement, can never, under the pretence of litigiosity, compete with Caldton's real right, now completed by infeftment.
The Lords having, in answer to the first, ordained Plenderleith, the factor, to be examined from whom he got the papers, and he declining to tell the person who brought them to him, they called him into their own presence; and, having examined him, he declared that Inverleith had sent them to him by one Wilson, whom he had never seen before, but thought he was David Lauder the writer's man, and that the factory was blank; and, before he would suffer his name to be filled up therein, he had taken a bond of warrandice from Inverleith; and which being produced, it bore that unusual clause to secure him, in case it were quarrelled in a reduction and improbation. And Inverleith being likewise sent for, and interrogated, he could not condescend to the person's name that brought Caldton's papers, but craved a time to recollect his memory; and declared he had letters of Caldton's, which he had received from him, lying at home in his cabinet, which the Lords ordained him to produce in the afternoon. And the young man Wilson being called for, it was found he was not the person who brought the factory to Mr Plenderleith; so, from their variation, there arose a suspicion against the verity of the factory: and, till farther inquiry, the Lords committed Mr Plenderleith to close prison, as he who had used a factory suspected of falsehood, and who gave no sufficient account how he received it and the rest of the papers.
The Lords having considered what Mr Plenderleith's malversation in this affair deserved, they fined him in 500 merks, and deprived him from being a writer to the signet.
