Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

James Hamilton of Manner Eleiston
v.
John Elies of Elieston

1677, 1679, and 1680.

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1677. February 8.—This day, James Hamilton of Manner Eleiston gave in a complaint to the Secret Council against Mr John Eleis, elder of Eleiston, advocate; representing that Mr John had the absolute trust of all his affairs and papers, and drew up what writs and contracts he pleased betwixt them, and entered to the possession of his haill lands, and might have been paid by his intromission ere now; and he, being a stranger, had not whereon to prosecute his count and reckoning, except a part of his own were allotted him; therefore craved, during the dependance, they would allot him an aliment, and ordain the charter-kist to be inventaried, &c. (See thir parties, on the 31st of January1679.)

Though it was alleged that this was altogether a Session business, and nothing to make it competent before the Council, yet the Council (who resolve to enhance all matters, and insignificate both Session and Justice Courts, of which see an observe alibi,') referred it so to the Session as they should instantly call the parties, and, without a libel aliove strepitu seu figura judicii, name an auditor, and ordain them to count and reckon; and, with all conveniency, to report what they found in the matter to the Council again: which was to make them judges to counts and reckonings, and that above the Session.

Glendoick being named auditor, and, in sundrymeetings, a charge and discharge being produced before him, and objections on either side, there were sundry points whereon he gave them the Lords' answer; whose interlocutor was this:—28th February 1677, The Lords having heard the report of the Lord Glendoick, auditor, as to the articles after mentioned, and as to that article of the £800 of vicarage-teinds: in regard the subscribed count betwixt them bears expressly that sum to be for the vicarage, and that it is granted by both parties the vicarage is not evicted, they refuse to allow that article to Mr John Eleis, defender, unless he will offer to prove, scripto vel juramento of the pursuer, that albeit the count bears the said sum to be allowed for the vicarage, yet it was agreed the same should be allowed for the benefit of the compositions procured by the defender from the pursuer's creditors. And assoilyie the defender from that article anent David Spence, the factor, who is yet owing £800; in regard the defender, by the contract, is only liable for his actual intromissions.

As to the third article, anent the annualrents of the 10,000 merks due upon the wadsets of Shawfield, the Lords find the defender liable only for the annual-rent of the said 10,000 merks since Martinmas 1666; unless the pursuer will offer him to prove, by the defender's oath, that, albeit the securities were not perfyted till September or November, yet the money was actually paid unto him at the Whitsunday preceding.

Thereafter, Squire Hamilton gave in a petition to the Council, on the 6th of March, showing the Session was up; the count could not be closed; and he was necessitous; and there were 6000 merks in the tenants' hands, lying ready to perish; and the rent was worth 4000 merks per annum, &c.

The Lords, by Atholl's moyen, the President opposing it, modified to him 3000 merks of that which was in the tenants' hands; and ordained the charterkist to be exhibited in their clerk's hands, and inventaried; and Mr John to depone he had abstracted none of the writs.

Advocates' MS. No. 542, folio 275.

1679. January 31. —In the count and reckoning betwixt Mr John Elis of Elicston and James Hamilton, (8th Feb. 1677,) James alleging, Elieston had got back a 1000 merks' bond, wherein Mr John was debtor to him in trust, and craved that Mr John might hold account to him thereof; and this being referred to Mr John's oath, he deponed the said bond was given him back as a free donation. It being objected against his oath, that, James being his debtor at the time, nemo præsumitur donare quamdiu debet:

This being reported to the Lords, they found Mr John's oath did not prove the allegeance, and therefore assoilyied him: for the brocard debitor non præsumitur donare is but presumptive, and the probability of it was clearly elided here, by Mr John's positive oath that it was gifted. Though a debtor is not presumed to gift, law doth not hinder him to gift to his creditor, providing he clearly express it. See 12th November 1 679, Andersons. Vide Pape and Young 17th January 1679.

James also alleged, that Elieston had got greater eases from the said James's creditors, with whom he had compounded, than he had stated to him in his account.

This the Lords found relevant, in respect Mr John was obliged to communicate to James the benefit of the abatements; and therefore ordained Mr John to depone thereanent, in presence of those creditors who gave the compositions. Which he did, and denied that he got any more down than what he had inserted in his accounts. Vide infra, 19 th Dec, 1679.

Vol. I. Page 39.

1679. December 19.—In Mr John Elies of Elieston's case with Hamilton, (31st Jan. 1679,) a sheet of Eliston's disposition to his lady and children, containing his faculty to alter it, was quarrelled, as having been lately inserted by him, and as not being in it ab initio; and so he could not securely pay to Elieston, his children and lady being infeft.

The Lords, before answer, ordained the writer and witnesses in the disposition to be examined what they knew of the alteration of that sheet. Vide infra, 25 th February 1650.

Vol. I. Page 71.

1680. February 25.—Upon a bill given in by Mr John Elies of Elieston, the Lords repone him again to the possession, aye and until he be paid of the sums found due to him by the count and reckoning; and that notwithstanding the Lords of Privy Council had, at two several times, given Squire Hamilton 3000 merks out of that estate, upon caution to refund it if he were found Elieston's debtor. Vide supra, 19th Dec. 1679.

Vol. I. Page 90.