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.
A Byres v. Major Douglas of Morton
1712,
July5.
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Alexander Byres having a wadset on Major Douglas of Morton's estate, for 3243 merks, annualrents were paid as the Major could spare it, by receipts to account of annualrents in general, without clearing termly; so, by this indistinct way, neither of them knew well what was resting and what was paid. Alexander dying, Anna Byres, his daughter and heir, succeeds, and the same indefinite payments continue, till, the Major stopping, she pursues a poinding of the ground, before the Sheriffs of Edinburgh, for the wadset sum of 3243 merks. Wherein the Major contending there was not so much owing; her procurator, without any warrant that appears, restricts her claim to 1600 merks, and takes out decreet for that sum; and she, without adverting, arrests upon it, and pursues forthcomings; but, discovering her error, she requires the Major to produce all his instructions of payment; otherways she insists for the whole extended sum.
Alleged for Major Douglas,—That, besides the decreet, both her father and herself, by their letters produced, had restricted the sum to 1677 Scots; and, in regard of partial payments subsequent to thir letters, it is restricted by the Sheriffs' decreet to 1G00 merks; and which she has clearly homologated, by arresting for that restricted sum allenarly, and pursuing forthcomings thereon: so she falls under the pcena pluris petilionis in demanding more.
Answered,—Imo, One who is creditor in 1000 merks may pursue for 500, and is not thereby cut off from seeking the remaining 500 when he pleases. 2do, All this procedure was plainly per errorem; she being minor knew not what was owing her; and the confused conception of the receipts made her father as ignorant; so the letters prove nothing. And, as to the restricted decreet, the procurator of an inferior court, without a special mandate, can no more prejudge his client, by restricting, than they can defer to oath. And, as to her deeds of homologation, she pursued only as factrix for Alexander Reid, her husband, now abroad; and whatever she did, in managing this affair by mistake, cannot prejudge her constituent. And it is certain, that neither error calculi nor error advocati can hurt the parties; as appears from tit. C. Advocatorum error Utigatorihus mm noceat; et calculatio pluries facta arguit, quidem, delibcralionem, sed non tollit errorem. And seeing she demands nothing but fair count and reckoning, her own or her procurator's miscounting cannot hinder her to seek redress from sovereign judges vested both with law and equity.
Replied,—The letters and the restricted decreet homologated must be the only rule of counting: and it is plainly captious to take advantage of a soldier, who has not kept his receipts so well as he ought to have done; and a tract of concessions, limiting the sum, can never be varnished over with the specious name of a mistake, as a single act might. And though you were factrix to your husband, yet the subject in controversy being, quoad the principal sum, heritable, he had no pretence thereto jure mariti. And, where lawyers mistake, there is no place to reclaim or reduce on that ground, if either the party be present, or do not palam, ex incontinentia id est, intra triduum, contradict. Now this pursuer, Anna Byres, cannot subsume, in these terms, that she reclaimed for many months; and her warrant is presumed, especially having charged for the restricted sum.
The Lords thought there were no great weight in the other qualifications; but stuck at the homologation. However, to clear the point, they ordained Major Douglas, upon oath, to produce all the receipts and discharges he had relating to this debt.
