Scottish Court of Session Decisions

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

Bower
v.
Bailie Fyfe and Robertson

Date: 19 June 1694

Click here to view a pdf copy of this documet : PDF Copy

In a cause, between Bower, Bailie Fyfe, and Robertson, it fell to be considered, if Bailie Fyfe's oath could be summarily advised as plainly negative; and next, if the quality was intrinsic, or behoved to be proven aliunde. The case was, He had charged on a bond of 200 merks. The reason of suspension was, It was for a fine imposed for a delinquence of theft, which he componed for that sum; and so it belonged to the town, and their treasurer behoved to uplift it. The Bailie depones, That the true cause of the bond was not borrowed money, as it bore, but a fine; and that he, by the rest of the magistrates' warrant, applied it to some pious uses, as is very usual, without having any writ to instruct it.

Yet the Lords found this quality extrinsic, and that his oath could not prove he had warrant for his application and payment; but rejected it, unless he prove it by the magistrates then in the office with him, or otherwise. For the Lords thought,—1mo. It was a transacting and huddling up of crimes, to commute corporeal punishment into money, contrary to S. C. Turpilianum. 2do. The money being the town's, he should not exoner himself by his own oath.

Vol. I. Page 620.