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.
Francis Allan v. John Chapman,
Date: 12 December 1711
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Lord Pollock reported Allan contra Chapman. Macaulay of Ardincaple and one Parian Macfarlane, wrote a letter with one Dougal Macfarlane, in 1704, to Francis Allan, collector of the customs at Donachadee, in Ireland, obliging themselves to pay what money he should advance him. On the faith of this letter of credit, Mr Allan lends him £36: 10s. sterling, and takes his bond in the English form. After two years' attendance, and finding no appearance of payment, and Dougal having broke and died, he raises a process, before the commissaries of Glasgow, against Ardincaple, on his letter. Who makes great opposition, first craving his oath of calumny, which put him to depone on a commission; then objecting against the bond, which forced him to lead the instrumentary witnesses to adminiculate it, being only signed by initial letters; then raises an advocation. But, being remitted, after a long dependance, he at last obtains a decreet against Ardincaple: who, all this while, never denies his own letter or mandate; but now raises a reduction and improbation of it, alleging, he never subscribed it, but his hand was forged, and put to the same. Wherein Allan being forced to take terms for producing the letter, he obtains a diligence against John Chapman, clerk to the commissariot of Glasgow, for recovery of the said letter, it being given in to him as the active title of his process against Ardincaple, for instructing him debtor ex mandato; and where it is still lying, or at least ought to be, as the warrant of the commissaries' decreet pronounced against Ardincaple, which expressly bears the production of it, and so binds it on the clerk; who having come in to Edinburgh, in obedience to the diligence, and offering to depone with some quality, that it was gotten up from him, and now is lost:—This looking very like collusion betwixt Ardincaple and him, who never questioned the verity of that letter for several years that the process depended; therefore, Mr Allan declined to let him swear himself free, but contended his subscribing the decreet, bearing the production of it speciatim, did bind it on him, and subjected him to one of thir three; either to produce it; or 2dly, to show somebody's receipt for it; or 3dly, to make up the damage and interest, as succeeding loco facti imprestabilis.
Answered,—This was running too fast; for he was only by an incident to exhibit it, if he had it; which could never found a libel against him for the value. When that was raised, he would have the inductee moratorice to answer; but to bring him in short hand, no form would allow. All that could be done in this state of the process, was, either to take his oath or pass from it.
Replied,—Could there be a clearer probation of his having it, than his own confession, under his hand, subscribing the decreet, bearing expressly the production of it? And it were a very rare case, if he, by his oath, should deny what is proven against him scripto. And, if this were allowed, it would make the clerks masters of all our properties, and put us in their mercy and reverence, to dispose of our writs at their pleasure; for they ought to give up no principal papers without a receipt. And this augments the suspicion, that, during sundry years' dependance, this letter was never quarrelled as false, till now it is amiss-
ing.
The Lords saw inconveniencies on both sides. Papers may, and do miscarry in processes, where the clerks are very innocent. Many times processes are carried to judges' chambers; what, if, betwixt hands, small papers be lost, where shall this be fixed? Yea, the damage may exceed the clerk's whole fortune. On the other hand, what security have the people, who must of necessity trust their writs with clerks, if they be allowed to exoner themselves upon oath? Therefore the Lords took a middle course, that the Ordinary might hear what Chapman the clerk said, why the mentioning it in the decreet was not a plenary but only a presumptive probation of his having it; which he might elide, by condescending either quomodo desiit possidere, or how it comes to be amissing; and in the [mean] time, stop Ardincaple's certification for not producing the said letter. See a case somewhat parallel, supra, 9th December 1709, Johnston against Pedder, where a clerk was overtaken for giving out a precept where there was no decreet.
