Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.

Patrick Haliburton
v.
John Scot

Date: 20 June 1699

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Patrick Haliburton, Dean of Guild of Edinburgh, being infeft in a tenement in Hawick belonging to one Scot, on an adjudication, and pursuing for mails and duties, and removing; compearance is made for John Scot, son to the debtor, who founds on a disposition he had to that lands prior to the Dean of Guild's adjudication, but whereon he was not infeft; and offered to prove, by receipts produced, that Dean of Guild Haliburton was paid of this debt, either in whole or in part, by intromission with sums belonging to the debtor.

Answered,—This was res hactenus judicata et jurata; in so far as, when I was pursuing for an adjudication, Scot the debtor compeared and proponed the same defence of my being paid by intromission; and it being referred to my oath, I have deponed, that though I got an assignation to some debts, yet I never got any in payment of this, but that it is still resting; whereupon the adjudication was allowed to proceed, and I assoilyied from that allegeance then, as I must be still; seeing law and reason signifies that, postquam juratum est, non amplius qu?ritur an debeatur, sed tantum an juratum sit.

Replied,—Neither the decreet nor oath could meet him; for, 1mo. It was sententia inter alios lata; and if his father has referred to the Dean of Guild's oath, he is not concerned, because his father was denuded in his favours before that, and so was not the legitimus contradictor; and that decreet cannot hinder him to prove his intromission by receipts scripto. 2do. Neither can his oath assoilyie him; because the Dean of Guild has ascribed these intromissions to other debts owing to him, for which he had done no diligence; whereas, in law, they must be imputed to the debt of the adjudication, as the sors durior; and his misapplication infers no perjury, but gives the Lords a handle to reëxamine him, and cause him condescend upon and instruct those other grounds of debts to which he would ascribe his intromission. And, without proving aliam et diversam causam debiti, he ought not to carry away the defender's estate, seeing he acknowledges he got an assignation, and thereby obtained payment: his oath is not definitive till he show these other debts to which he attributes these payments.

Duplied,—The Dean of Guild oppones his decreet and oath; for he was not to notice a latent disposition by a father to his son and apparent heir; and so it is not res inter alios acta, but one and the same person in construction of law; and as to the imputation he has made by his oath, though he had deponed the effects he got were for satisfaction of other debts, yet even, in that case, the quality would have been intrinsic and sustained; as was decided, 28th March 1629, Gall against Eviot; and 10th July 1632, Lord Fenton against Drummond

The Lords demurred, how far the oath would assoilyie him, or liberate from a reëxamination, or condescendence on his other debts; but found he was in the case of res judicata: and therefore assoilyied the Dean of Guild on that ground.

Vol. II. Page 52.