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.
Carnegy alias Blair of Kinfauns v. James Carnegy of Phineven
Date: 22 December 1711
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The deceased James Carnegy of Phineven being tutor to Carnegy alias Blair of Kinfauns, his nephew, and likewise having married him to his daughter, and so being debtor to him both in his tutor-accounts and his tocher; there is a process of count and reckoning intented, at his instance, against James Carnegy, now of Phineven; who propones Absolvitor, upon a discharge granted by you to my father, not only of the tutor-account, but likewise of the tocher; except œ1000 Scots of it, acknowledged to be yet owing; which made Kinfauns repeat a reduction and improbation he had raised of that discharge as false, and craved Phineven to abide at the verity thereof; who offered to abide qualificate by it in thir terms, That he found it, after his father's death, amongst his papers.
But the Lords rejecting the quality, he abode at it simply; but protested he might be no farther liable than as he who found it in manner foresaid.
Then Kinfauns, insisting in his articles, offered to prove, 1mo, That his uncle, Phineven, on his death-bed, in March 1707, was oft heard to regret that he had not cleared his counts with Kinfauns, his nephew. Nota, The date of the discharge is just three days before his death; in which space it was impossible such a long account could be ended with a dying man. 2do, After his death his writs were visited and inventoried, by order of the magistrates of Edinburgh, and no such paper found, though it was pretended it was in his breeches. 3tio, It bears to be subscribed before two witnesses, George Wilson, shoemaker in Edinburgh, and John Morrice, merchant there; whereas no such men can be found; or, if there were such men, they were dead long before March 1707, the date of the discharge.
Alleged for Phineven,—Clear and full discharges are not to be taken away by such lean and slender presumptions. There is nothing more frequent than on prospect of death to clear accounts; and it is no wonder the discharge was not found at the first; for his servants had rifled his pockets, and, after great pains, the writs were recovered. And, as to the 3d, There is no use to inquire and search after witnesses, when the writ is holograph, all wrote with Kinfauns' own hand; and so is good and probative without witnesses; for superflua non nocent, utile per inutile non vitiatur, et non solent quœ abundant vitiare scripluras, l. 94 D. de Reg. Juris. Likeas, Spottiswood, voce Improbation, cites a case exactly parallel in 1583, where one Maxwell offered to improve the Laird of Stankie's testament per testes insertos; and the witnesses deponing they knew nothing of it; yet, because the testament was holograph, the Lords sustained it, and assoilyied from the improbation; for quorsum shall we examine witnesses, when I pass from them and can clip away their names and subscriptions, and yet the writ, after all, shall be good?
Answered,—Whatever was the validity of this discharge, without witnesses, because it bears holograph, (and which is even denied,) yet you having, ad majorem cautelam, adhibited them, if their subscriptions be false, the discharge can never subsist on the bottom of its being holograph; because you have not rested on it yourself; and, by adding false witnesses, you have vitiated the whole writ For falsehood may be perpetrated four ways, 1mo, Scripto, in a false forged writ. 2do, Dicto , in falso teste. 3tio, Usu, in producing and founding on a false writ. And 4to, Facto, in falsa moneta vel mensura. And the first three are all to be found here. And the Lex Cornelia, de Falso, reckons the species of this crime to be not only delere, mutare, subscribere, but likewise addere vel subjicere, as is here. And Menochius, de Presumpt. says, a falsehood, defect, or nullity in any substantial part influences the whole writ. And the Lords, in that famous case, Fleming and Nimmo,20th February 1673, found, though a writ was holograph, yet, having witnesses, it might be improven; and, on advising the testimonies, they found it null and improbative, though not amounting to falsehood. See also 22d February 1676, Innes against Gordon. And as to that old practick cited by Spottiswood, the witnesses, at most, was but a non memini; and so the Lords justly sustained the testament, it being holograph not being denied. But where a man tampers, by adding false witnesses, though the deed were never so true, it is just he lose the benefit of it.
The Lords, before answer, ordained the witnesses, if on life, to be examined on the verity of their subscriptions, and all other trial and expiscation to be taken for redarguing the truth of the discharge: But, likewise, allow Phineven to prove it holograph, comparatione literarum, and adduce what probation he can, for adminiculating and fortifying the discharge. For the Lords thought it their duty to inquire into such suspected deeds, though parties should lie by and collude among themselves.
