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 Ballantine v. Elisabeth Charteris
Date: 9 November 1705
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John Ballantine, in the Canongate, against Elisabeth Charteris, daughter and heir to Charteris of Amisfield. John Ballantine having right, by progress, to a comprising led by Thomas Rome of Clonden, against Sir John Charteris of Amis-field, in June 1638, he pursues a reduction and improbation of the rights upon that estate.
Alleged against the said John,—That his apprising was prescribed non utendo, there being nothing done upon it for the space of forty years after its date.
Answered,—That the prescription was interrupted, either by diligence on it, or the minority of Mr Thomas Rome of Clouden, the appriser. And this being sustained as relevant to elide the prescription, John Ballantine adduced probation to instruct that the said Mr Thomas, the appriser's heir, was born in May 1647; that his father Thomas died in October 1654; whereby it appears that the son was then only seven years and five months old, so he had thirteen years and seven months to run for completing his minority; and that the summons of improbation being raised in December 1690, and executed in January 1691, there are fifty-two years betwixt the leading the apprising and executing this summons; out of which, if we subduct the thirteen years and seven months of minority, there remain but thirty-eight or thirty-nine years; so it is clearly brought within the forty years of prescription.
Against this probation it was alleged for Elisabeth Charteris,—That his being born in 1647 is not sufficiently proven; because there was only one witness, viz. George Rome of Beoch, who deponed he was born that year: and the rest were only adminicles; as the contract of marriage, the father's bible bearing his age, the clerk of the kirk session's testificate of the time of his baptism, and his act of curatory, bearing him to be then sixteen years old; none of which are authentic probative writs, but mere assertions, which can make no faith. And, as to Beoch, no respect can be had to his deposition, because he was the said Mr Thomas's uncle; and, by his deposition, he makes his nephew a gainer: for, if this apprising subsist, it pays so much of his father's debt, and disburdens his estate of the same.
Answered,—This objection, whatever it might operate, if Mr Thomas Rome, his nephew, were pursuer, can never militate against John Ballantine, a singular successor and adjudger from him, who is no relation to Beoch the Avitness.
The Lords repelled the objection, and found him a habile witness. Then they fell to consider how far his single testimony, being conjoined with the other documents produced, did amount to a sufficient probation of his age ad victoriam causœ. And they found that, by the contract of marriage, his father and mother were married in 1645, and that, by the memorial in, the first leaf of his father's bible, there was a daughter born as their first child; and he is only the second, and set down as born in 1647; and not only are their two ages recorded, but all the other children's births regularly set down: And what could tempt the session-clerk, or the commissaries in the act of curatory, to insert a false date? And therefore sustained these adminicles, with Beoch's oath, as a sufficient instruction and probation of his being born in 1647. But the Lords wished that there would be an authentic register settled for baptisms, burials, and marriages, as the French King's edict at Versailles has done; which would facilitate such processes, and hold in a great expense to the lieges.
Then Charteris the defender objected,—That the time of his father's death was not fully proven; in so far as one of the witnesses deponed he was now sixty years old, which made him but nine years old in the 1654, at which time he says Clouden died; and his causa scientiœ is not, that he was at his death, lykewake, or burial, but only that the said Thomas Rome of Clouden, having made a right, in his sickness, to his heir's prejudice, he raised a reduction of it, ex capite lecti, which made him curious and inquisitive to inform himself at what time he died; which reason resolves into a mere hearsay, and makes him only a testis de auditu.
Answered,—What a man hears at nine or ten years old, he may afterwards very well depone thereupon. It is true, the common uncontroverted rule is, What we have heard or seen after fourteen is to be credited, and what we declare we saw or heard before seven, (which is the period of infancy,) is not to be credited: but law has not precisely determined a fixed time betwixt seven and fourteen, but has left it to circumstances; for our memories will be very fresh and retentive at nine or ten, and our senses capable enough of impression from things then falling under them. And though he was not at the burial, yet his concern to reduce that deed in lecto made him very nice and exact in his inquiry anent the time of his death, wherein he could not be readily mistaken; which fortifies his testimony as much as if he had been at his burial, seeing even in that case he had no more but the common report that it was his burial, and that his corpse was in the coffin, and laid in the grave.
The Lords found the probation of his death sufficient, being in re tarn antigua as fifty years ago; and so repelled the objection.
Then the defender contended,—That the citation on this summons, in January 169I, was not a sufficient interruption; because, by the Act of Parliament in 1699, it is declared, That all citations used for interruption must be likewise executed at the kirk-door, on a Sunday, after divine worship; which was not done here.
Answered,—That is only used where the process is not insisted in, but suffered to lie over and sleep; but here the cause was duly insisted in.
The Lords superseded to give answer to this nullity, till the calcul were made; when the cause was marked, called by the clerks, and given out to be seen and enrolled.
It was suggested,—That, if the surcease of justice, after Oliver's death in 1658, and at the Revolution in 1689, be subducted here, the prescription will be clearly found not to be run; but it was thought that, in the grand prescription of forty years, these stops and intervals of justice were not considered nor deduced, so as to take any place; for as prescription is the great security for ascertaining our properties, yet interruptions are not so odious and unfavourable but sometimes any evidence or document, talis qualis, has been found sufficient to stop the course of prescription.
