Scottish Court of Session Decisions

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 Balfour of Broadmeadows
v.
Alexander Forbes of Ballogy and Alexander Forbes, Goldsmith

Date: 27 January 1703

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On report of the Lord Haleraig, the Lords decided the cause betwixt John Balfour of Broadmeadows and Alexander Forbes of Ballogy and Alexander Forbes, goldsmith in Edinburgh. Broadmeadows having obtained a decreet against Mr George Forbes, late minister at Traquair, for £2310 Scots, as the balance of his tutory-accounts, and having arrested his stipends in the parishioners' hands, the same was loosed on Ballogy and Alexander Forbes's becoming cautioners in the loosing. And Broadmeadows thereafter obtaining a decreet of forthcoming, wherein the parishioners were assoilyied, in regard they had bona fide made payment by virtue of the loosing, he now pursues the foresaid two cautioners; who repeat a reduction and suspension of the decreet of forthcoming, on thir grounds;

1mo, That it was null; Because, a sight of the process having been demanded by Mr George's procurators,—the commissary of Peebles, before whom the pursuit was, did refuse the same.

Answered,—Mr George was only called pro interesse; and, though out of the kingdom, yet no mandate was produced for him; and the decreet bears he was appointed a sight of the process.

Replied,—The debtor in a forthcoming has an interest to compear, and propone defences if he please; and a mandate was produced at the second diet; and though the judge allowed him a sight, yet the clerk refused the same; which he durst not have done, had it not been by the commissary's connivance; and his refusal is instructed by an instrument of requisition taken against the clerk.

The Lords found this no nullity, in regard he should have complained, to the judge, of the clerk's contumacy; which he did not.

2do, alleged,—The decreet is still null; because pronounced on the 5th of August, in vacance-time, and does not bear a dispensation.

Answered,—All the interlocutors and probation were in session-time; and there is nothing done in vacance-time but only the advising their oaths; and, by the custom, they need no dispensation till the 20th of August, as appears by the deliverances commonly given by the Lords on their dispensation-bills.

The Lords also repelled this nullity.

3tio, alleged,—The commissary committed iniquity in assoilyieing the defenders, in whose hands the arrestments were laid on, upon their oaths asserting they had paid, without producing the parties' discharges.

Answered,—The debtors' oaths are the habile means of probation, in order to recourse against the cautioners in the loosing; as was found by the Lords, 22d of February 1627, Lord Balmerino against Lochinvar; and Stair is of the same opinion, lib. 1. tit. 17. sec. 8.

4to, alleged,—The decreet was still null in sustaining debts against the cautioners, which were not due at the time of laying on the arrestments, which was in March, and so could reach and affect nothing but the current term to Whitsunday 1691, and yet the Martinmas thereafter is decerned for; which term could not fall under an arrestment laid on in March before,—it not being then begun, much less current.

Answered,—The letters bore warrant to loose all arrestments laid, or to be laid, on Mr George Forbes's goods or debts; which was warrant enough for the commissary's decerniture.

The Lords sustained the nullity, and turned the decreet to a libel.

Vol. II. Page 176.