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.
Lord Ross v. Patrick Houston
Date: 25 February 1708
Click here to view a pdf copy of this documet : PDF Copy
Lord Ross being a sixteenth partner of a ship, he and the other partners put in Patrick Houston, as supercargo, and loaded it with coals and other goods, and advanced a stock purse of L.104 sterling, and sent it to Lisbon: and from that he got a freight to Amsterdam, and from it to London, where he sold the ship for L.701 sterling. Patrick not having counted to my Lord Ross, for his part of the profits, he pursued him before the High Court of Admiralty, for L.140 sterling, as his proportion and share: and the process having been taken up to see by William Leggat, Patrick's procurator; and he failing to find caution judicio sisti et judicatum solvi, he is decerned and holden as confessed on the libel, in April 1699. He, shortly after dying, my Lord raises a process against George Houston, his son, on the passive titles: who repeats a suspension and reduction of the decreet against his father, on these grounds:—1mo, It was null, as destitute of all manner of probation; neither his commission as supercargo being produced, nor the alleged freights he got, nor his selling the ship: And, upon the matter, is a decreet purely in absence, taken out against him when he was sick; and died shortly after.
Answered,—The decreet was most legal, in so far as you being personally apprehended, and, after taking out the process, refusing to find caution, the judge could do no other but hold you as confessed, my probation being clearly by your oath; which you declining to give, was a plain acknowledgment of the truth of my claim, and that you could not on oath deny the libel. And now, my mean of probation being totally lost, you cannot plead to be free of the decreet.
Replied,—The mean of probation is yet extant: for he may get a diligence (when the decreet is turned into a libel,) to recover the commission, with the invoices and bills of loading; and he may yet prove, by the skipper and his crew, what freight he got from port to port.
Duplied,—It is so far from being incumbent on me to prove these articles, that law burdens you with the production of them. Must I go and search, per omnes regni angulos, for people that are either dead, or abroad? I need say no more but I have a decreet holding you as confessed.
The second reason of reduction was,—Your decreet is intrinsically null; because, by the 3d Act 1686, all interlocutors of judges are ordained to be subscribed, under the pain of nullity: but ita est the whole signatures of this process, yea the very warrant of the decreet itself, is unsubscribed. And, in the late case of the Town of Edinburgh's depriving Mr Andrew Massey from being one of the Regents of the College, the Lords found the decreet null, because the interlocutors were not subscribed. And likeways, Lindsay of Wormiston, Commissary of St Andrew's, was reprimanded by the Lords for not signing the witnesses' depositions: all which prove that the Act is in viridi observantia; and a consuetudo irrationabilis ought not to be sustained in the very face of an Act of Parliament so just and rational, obviating so many inconveniences as formerly occurred by the clerk's minuting interlocutors wrong: and such public laws cannot run into desuetude, as was found 27th January 1681, Jack against the Town of Stirling; and 15th December 1666.
Answered,—By the constant practice of the Court of Admiralty, attested both by the judges and clerk, no decreets in absence are signed, but only put in the diet-book, which answers the minute book of the Session; and none are signed but such as proceed upon debate. And to quarrel my Lord Ross's decreet on this head, is to cast up all the decreets in absence, and to annul them at one stroke: and, whether it be right or wrong, yet the practice and common error must excuse quoad prÆterita, whatever regulation you think fit to make for the future by Act of Sederunt: as you did lately in the symbols of resignation, supra, 7th February 1708, Young and Pittedy; and in the case of Glendinning and Nithsdale, about apparent heirs' bonds, being the ground of an adjudication; and that of Duff, Brown, and Forbes of Culloden, about a wrong infeftment; yet the custom of the Town of Inverness supported it. And the very Act requiring interlocutors to be signed does likewise appoint that they be signed by the judge before he go off the bench. Yet this is wholly obsolete, and was repelled in the case of Ross of Tillisnaught against William Turner. And if all decreets subscribed by the judge after he comes off the bench were reduced, multitudes of decreets would fall to the ground.
The Lords thought the case very strait on both sides; for it would be hard to make Patrick Houston's heirs liable for so great a sum upon a decreet in absence: and, on the other hand, the loosing of the decreet was to make my Lord Ross lose his whole money, and the only mean of probation thereof: and that it was not enough for Patrick's son bluntly to say, “Prove your libel;” but he ought to furnish what documents he could, that his father had accounted for his intromissions in that trust, as exercitor of the ship. And, therefore, they fell upon this, That George Houston and his curators should give in a condescendence, upon oath, of all the evidence they had beside them, after search, of that voyage to Portugal and back to England, and what he made of the cargo, freight, and stock-purse, or by his selling the ship; that it may appear how far he was debtor to Lord Ross or the rest of the owners, and how he could discharge himself of the same. The least effect Lord Ross's decreet can have, being to relieve him of the burden of proving these particulars, and transfer the onus probandi, for clearing them up, on Mr Houston.
