Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION V.

Proved, or not proved.
Subject_3 SECT. III.

Forgery. - Bribery.

The Earl of Eglinton, and Hugh Fleming, his Cedent,
v.
Robert Durham, son to Adolphus Durham

Date: 19 February 1706
Case No. No 571.

In an improbation of a bond by the indirect manner, the direct having perished, a variety of articles specified were not found sufficient, and the bond was sustained.

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Thomas Hamilton of Boghead or Foulshiels grants bond, in July 1685, to the said Hugh Fleming for 1000 merks; Hugh, and the Earl his assignee, pursue Robert Durham, as heir of tailzie to his uncle Thomas. The writer, witnesses, and granter, being dead, Robert propones improbation and falsehood against the bond, by the indirect articles, (the direct manner being perished,) and consigned L. 40. Fleming abides at it sub periculo falsi as a true bond. The qualifications and presumptions urged to infer its being false were, 1mo, That Fleming was a poor man, and never known amongst his neighbours to have so much money to lend; and if he had it, he could never have spared it for sixteen years, during all which time Thomas Hamilton lived after the date of the bond, but was never craved or demanded, neither for principal nor annualrent, till now that all are dead; whereas Thomas was most solvent, and both volens et valens to pay his debt. 2do, The bond is signed at Glasgow, and that same day Thomas signs a tack at Swine-abbey, at a great distance, which proves him alibi. 3tio, It will appear comparatione literarum, that there is a very observable diversity betwixt the subscription of this bond, and the other subscriptions contained in the sundry writs produced. 4to, Smith of Browsterland, one of the witnesses, his subscription seems to be plainly razed and vitiated. Answered, The articles adduced have neither truth nor relevancy in them to infer falsehood. For as to the 1st, Lenders of money are not bound to instruct their condition and ability; and some love not to be reputed rich and wealthy; and the bond confessing the receipt of the money, proves that he had it; and what though it had been a donation? and his lenity and civility of not craving it, infers no suspicion against the bond, many debts being longer owing than that; and the said Fleming has the repute of an honest man where he lives. To the 2d, Glasgow and Swine-abbey are only 17 miles distant, and in July it was easy to be at both in one day; whereas the exception of alibi lies in a natural impossibility to be at these two in one day, in respect of their vast distance. As to the 3d, It is not every variation in the shape of letters that will amount to a falsehood, especially when the writs are subscribed ex intervallo; for a bad pen, the distance of time, negligent writing, a man's age, or his indisposition and infirmity, may occasion a considerable alteration in subscriptions, and yet make no conviction of falsehood. To the 4th, If there had been a design of forging it, it had been folly to have inserted three such famous known witnesses, but mean obscure witnesses would have fitted such a work of darkness better; and there is no material vitiation appears. And the writs produced for comparing the subscriptions may be as well charged with the suspicion of falsehood as this bond; and men's evidents must not be taken away by so slender presumptions. The Lords thought there might be some jealousy against the bond, but the qualifications adduced did not amount to a full proof, and therefore repelled the articles, and sustained the bond.

Fol. Dic. v. 2. p. 267. Fountainhall, v. 2. p. 329.