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.
Sir Alexander Falconer of Glenfarquhar, Petitioner
Date: 13 December 1709
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Glenfarquhar and Halkerton. The Lord Halkerton having been furious these eighteen or nineteen years bygone, and having, in his madness, killed a man; and Sir Alexander Falconer of Glenfarquhar, his nearest agnate and next heir, thinking his affairs not well managed, raised a brief out of the Chancery for cognoscing his furiosity, at his own house of Halkerton, by the sheriff and an inquest: My Lady, his mother, disappointed the first brieves, by taking him out of the Sheriff of Kincairden's jurisdiction into the Town of Montrose: Of which Glenfarquhar having complained, there is a new brief raised and executed, of which an advocation is presented, desiring it may be brought before the macers, and he brought over to Edinburgh; and that assessors might be adjoined, who would best judge if he was reconvalesced or not.
The grounds for the advocation were, 1mo, That the degrees of idiotry and furiosity were very nice, and best cognosced by physicians; and so my Lord should be brought to Edinburgh, where copia peritorum in illa arte is to be had: and the intricacy is such, that Paulus Zacchias, QuÆst. Medico-Legal. lib. 2, tit. 1, quÆst. 16, num. 3, tells how Budeus and Menochius, two eminent lawyers, quite mistake in defining what makes a man furious and phrenetic; which cannot be tried at his own house in the country. 2do, The sheriff' and his inquest are incompetent judges to him, being a Peer; and so, by the articles of the Union, the plurality must be Peers; since the cognition touches his reputation, and tends to strike out one of their number. 3tio, Where there is any dubiety about their condition, the Lords use to take a precognition and trial before themselves; as they did lately with Mr John Bonar of Gregston: And the Lords are in use to advocate such brieves; as in Barton's case, 19th July 1681. 4to, Glenfarquhar being a creditor, he may, by collusion, let his adjudications expire. Besides, the verdict must be a quo tempore he was furious, which may endanger many of the creditors' bonds which are granted at that time.
Answered,—That the 18th Act 1585, ordaining the nearest agnate tutor to fools and furious persons, has trusted that in the hands of the ordinary judges; so that the sheriff' was most competent to the cognition: and whatever may be pretended when the furiosity is dubious, and noways publicly notour, there can no such thing be obtruded here, being known to all the country, and broke out in sad and fatal instances. And who can judge it so well as the neighbours upon the place, whom our old law calls fideles homines patriœ per quos Veritas melius sciri poterit? And to bring over both the assize and witnesses here, would draw a great burden of expenses upon my Lord, and be uneasy to the gentlemen at this season of the year, and who probably would decline to come so far off. And, as to the incompetency, it is acknowledged, if my Lord were to be tried for a capital crime, he behoved to be judged by his peers; and even then, barons, being of the same degree with the nobility, would be capable to sit on him. But, here, furiosity is a misfortune, not a crime; and the design is not for punishment, but to his advantage,—to manage his estate; and so the Union privilege takes no place. And there is no shadow to fear Glenfarquhar can take any advantage of a legal; for, 1mo, I doubt if it can expire against a furious person; it cannot run against a minor, and madmen have all the privileges of minors. 2do, He is to be his tutor-in-law, as his nearest agnate, and must finti caution rem furiosi salvam fore, and so can never take advantage of his trust. And the creditors posterior to the fury are not prejudged. For though the inquest must return a special answer to that head of the brief, when it commenced, yet this does not preclude them from proving that he was in a lucid interval, and sanœ mentis, when he granted their bonds. And Burton's case does not meet; for all the parties, members of inquest and witnesses, lived within Edinburgh; and his distemper was said only to be a deep melancholy. And as to the touching of my Lord's reputation, it would much more wound it, to bring him over than to try it at home.
The vote being stated, Advocate or not? the Lords were equally divided, seven and seven; so the President carried it in the negative, thinking it much fitter to be tried in the shire where he lives. Though these cognitions use to be at Stonehive, as the head burgh of the shire where the sheriff courts are usually kept, yet, for my Lord's ease and conveniency, they dispensed with the usual place, and appointed the inquest to sit at his Lordship's house of Halkerton.
After this, on a reclaiming bill, the Lords advocated the brief to the macers, to whom they would adjoin some of their number as assessors; and shunned the sheriff as suspect.
