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.
Cochran of Priestgill, and Dykes of Halburn, v. James Urquhart of Knockleith
Date: 12 June 1705
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Cochran of Priestgill, and Dykes of Halburn, pursue James Urquhart of Knockleith, on this ground, That he was donatar to the forfeiture of Halburn, as having been at the insurrection of Bothwell Bridge: And having componed the forfeiture for a sum of money, and transmitted the gift to Priestgill; and the Parliament having rescinded all these forfeitures in 1690, and ordained restitution of the compositions,—they pursued Knockleith for repetition of £50 sterling, as the sum paid on the transaction, with its annualrent from the date of the payment.
And he (whose name was only borrowed to the gift, for the Earl of Airlie's behoof,) denying the sum received, they contended,—That the disposition of the gift, bearing onerous causes in the general, presupposes that it was near adequate to the value of the lands, and which is worth 6000 merks; and Dykes's oath should be taken on the composition.
Answered,—When the heritors bought back their own forfeited lands, or their friends to their behoof, they ever got an easy bargain; and none ought to depone anent it but the donatar who received it, unless the writ had bore the particular sum.
The Lords found the pursuers behoved to prove the quantity of the sum given for the composition; and that it could only be proven by Knockleith's oath. And he being craved to be holden as confessed, it was found, by looking into the execution, that he had absconded of purpose, that he might not be personally apprehended; whereon the Lords granted a diligence to cite him edictally at the market-cross of the head burgh of the shire, and at the church-door of the parish, on dissolving the congregation. On which warrant, the messengers, searching narrowly for him, at last, by accident, found him, and gave him a copy, personally apprehended. And the pursuers now craving he might be holden as confessed, it was answered he could not; because there was no warrant for a personal citation, but only an edictal.
Replied,—Though the warrant proceeded on a supposition of his latitation, yet the pursuer had done more, in apprehending him personally.
The Lords held him as confessed; but declared, If he came in and deponed, the 3d of June, he should be received. And he having given in a bill, craving a commission, the same was refused: but the Lords superseded extract for eight days, that, if he came and deponed within that space, he should be reponed to his oath. And on this the Lords were divided, six against six; and it carried, “Supersede extract for eight days,” by my Lord Chancellor's vote: for the generality of the Lords thought Knockleith had used much shifting and tergiversation in this cause, and had made the poor man expend near the whole sum in seeking.
