Scottish Court of Session Decisions

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.

The Earl of Northesk
v.
Lady Kinfauns and her Son

1703. January December 29 7.

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January 29-—The Earl of Northesk having taken forth a diligence in his process against the Lady Kinfauns and her Son, for proving her husband's being his procurator et negotiorum gestor; and having cited the Lady Muckarsie, for exhibiting discharges and other writs, for proving thereof; and she having compeared, and deponed negative to the whole, and craving expenses, the Lord Crocerig, then Ordinary on the witnesses, modified to her £32, conform to the days she had attended, and ordained Mr Patrick Couper, the Earl's agent, to pay her: who reclaims by a bill, 1mo, That in exhibitions of this nature no expenses can be given at all, seeing every one is free to expiscate, where he can find his probation; 2do, Agents can never be decerned in payment of expenses, who oft times are out of purse for their clients, but only their constituents.

Answered to the first,—There may be as much calumny and malice in wrongous citing people on diligences as in pursuing them; and she is upon the matter a witness, and every witness ought to get payment of their expenses. To the second, Parties are seldom present, but only their agents and writers, who are presumed to be empowered and furnished with cash to disburse. And what if the party should dwell in the isle of Sky or the far Highlands, must the witness go seek his expenses from them there? he had better twice over quit it; and it should have summary execution without formalities or delay.

The Lords thought there could be no general rule for the first; there being cases where it may be absolutely necessary to call them, and in others the calumny is evident, and so expenses will be due, but not always in all cases. As to the second, Some of the Lords thought it hard to burden agents with the payment of such expenses, when they might have no effects nor provisions in their hands; but that the most effectual compulsitor was to refuse process, and stop any farther procedure at that party's instance in the cause, till he paid what was modified: and so if it was the pursuer, he would obey rather than sist his process; and if the defender, then he would be no farther heard in the cause, but decreet go against him till he paid.

Vol. II. Page 176.

December 7—The Earl of Northesk against the Lady Kinfauns and her Son, mentioned 29th January 1703. It was a declarator, That any eases Kinfawns, his uncle, got out of the debts he paid and transacted, they ought to accresce to the Earl; and the creditors, who gave the eases, being ordained to be examined, before answer, on the quota, and their oaths coming to be advised, who acknowledged sundry years' annualrents to have been then quit by them, the debate arose, If the lady and her son were obliged to allow the same, because Kin-fawns, her husband, being made assignee for an onerous cause, his cedents' oaths could not militate against him.

Answered,—The principle of law held good in the general, but had exceptions; as where the party transactor was a near relation, and acted as negotiorum gestor, and was now dead, so that his oath on the abatements could not be got; in such a circumstantiate case the Lords had recurred to the creditors' oaths, though it was but a single testimony.

The Lords found, If Kinfawns had been alive, his own oath or writ could only have liquidated the eases he got when he bought in the debts; but that manner of probation now failing by his death, and he being the Earl's uncle, and acting in his affairs universally tanquam negotiorum gestor, therefore, without making any general rule, they found the eases proven by the creditors' depositions. But one of them, viz. the Laird of Inchsyra, having deceased before examination, and emitted a declarator under his hand anent the ease he gave of his sum; the Lords rejected it, as ultroneous and not probative.

Vol. II. Page 197.