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.
James Malcolm of Grange v. James Weyms of PlTkenny
Date: 6 January 1711
Click here to view a pdf copy of this documet : PDF Copy
James Weyms of Pitkenny grants a bond, blank in the creditor's name, for 750 merks, in anno 1 686. James Malcolm of Grange, finding this blank bond lying amongst his brother my Lord Lochore's papers, he fills up his own name in it, and charges Pitkenny for payment; who Suspends on this reason,—That the said bond originally belonged to one Margaret Kinnymond, who lent him the money; but, her husband being in great debt, she was advised, to prevent his creditors' arrestments, to take it blank, and put it in Mr Alexander Malcolm her advocate's hands, for her use; and that she afterwards assigned this bond to one Clark, who married her daughter, who recovered a decreet against Pitkenny for the sum before the sheriff of Fife; on which distress he had made payment, and obtained his discharge; and so could not pay twice.
Answered,—He opponed his clear liquid bond; which, though blank, yet, being in my Lord Lochore's cabinet, was his evident; and he, as his nearest of kin, might warrantably fill up his own name therein, and could not be taken away by such extrinsic stories.
The Lords allowed Pitkenny, before answer, to prove, prout dejure, that his bond was put in my Lord Lochore's hands for the use and behoof of Margaret Kinnymond, in trust; and that she had assigned it to Clark, her son-in-law, and who, upon payment, had discharged it.
Upon this, a probation being led, one Hutcheson Deponed, That he was present when Mistress Kinnymond gave the bond to my Lord Lochore, to prevent its being affected by her husband's creditors; and that he heard Lochore say, he should give her up the bond whenever she called for it. And one Glassford. depones, that he heard Doctor Malcolm, after Lochore's death say, he believed his brother had no interest in that bond, and that he would not be so base as fill up his name therein; though, after the Doctor's decease, his brother James did it. And sundry others deponed, That it was the common voice of the country that Margaret Kinnymond had a bond lying in my Lord Lochore's hands. It was likewise instructed, That Pitkenny gave her a free house in his land, and paid her the annualrent of that sum; which must be ascribed to the debt in this bond, unless they instruct that Pitkenny owed her another sum besides this.
Against this probation, it was alleged,—There was nothing more destructive to our securities than to evacuate and annul bonds by such frivolous, weak, and strained presumptions: and all the testimonies resolve into nothing but super auditu alieno, mere hearsay; except Hutcheson, an illiterate fellow, who can neither read nor write, and so is not an instrumentary witness; and who is too circumstantiate and perquire in his lesson to beget belief. It might have been Arabic, or any thing, rather than a bond, for him. And Grange, the charger, always told Pitkenny, if the instrumentary witnesses should affirm it was Margaret's money, God forbid he should seek it; but there were none of them examined, but only mean extraneous fellows. And the transaction betwixt him and Clark was a mere sham and collusion, who accepted of a small thing, and he was in pessima fide to take a discharge from him without getting up his bond, when he knew well enough where it was lying.
Answered,—That, since the 25th Act 1696, it is acknowledged trust cannot be proven but only scripto vel juramento; but this is long prior to that act, when trust was inferred from probabilities and presumptions resulting from matters of fact; as appears from many decisions, and particularly 1st March 1623, Williamson against Lamb; 27th July 1624, Lady Staniepath against her Son's Relict; 6th February 1669, Rule. And though, regulariter, writ is not to be taken away by witnesses, yet trust is an exception from the rule; and, in this case, the bond was a corpus et deposition, and so a proper object of our senses. And, esto Hutcheson were illiterate, yet no more is required to capacitate him to depone on what he heard and saw, but only to allow him eyes and ears: and some men may be as sagacious as them who have more learning. And, as to such of them as depone de auditu, yet, being in re antiqua, it is probative, per I. 28 D. de Probat. et I. 2 sec. 8, D. de Aqu. Pluv. And though they be testes singulares quoad time and other circumstances, yet in idem concurrunt; and even as happens in the proving possession, where, though the witnesses depone on different acts, yet they are conjoined to make up plenary probation. And, as to the pretended contrivance, nemo prasumitur jactare suum. Pitkenny was not so flush of money; neither was it clandestinely done, but in open sunshine at the sheriff-court of Cupar.
Replied,—That trust was formerly probable by unexceptionable documents, is not denied; but there is no such convictive evidence here. And the presumptions, on the contrary, preponder; for it is known, when my Lord was advanced from being an advocate to be a judge, he gave back all his clients' papers lying beside him; and so he would have done with this, if it had been Margaret Kinnymond's. And its lying beside him, without any note or cover mentioning the trust, proves it was his own; and cannot be taken from his heirs by such weak and slender presumptions. And such unconnected irrelevant qualifications can never infer such a dangerous article as trust.
The Lords did think the whole conjectural and divinatory; yet, by plurality of votes, found the trust proven by the testimonies and writs produced, and so reduced the bond as it stood in Grange's person, and assoilyied.
Against this interlocutor the pursuer gave in a protest and appeal to the Parliament.
