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Scottish Court of Session Decisions >>
Earl of Murray v Dunbar of Burgy. [1630] Mor 12306 (21 January 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor2912306-066.html Cite as:
[1630] Mor 12306
A bond was not allowed to be taken away by witnesses, however honourable.
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A Bond of L. 10,000 granted by Burgy to the Earl of Murray, for desisting and quiting a criminal pursuit of slaughter and adultery, moved against Burgy, before the Justice, at the King's Advocate's instance, and at the instance of the nearest of kin to the party slain, (the Earl of Murray not being pursuer of the criminal pursuit himself, and the only doer, but the assister, and prosecutor thereof,) this bond being desired to be reduced at Burgy's instance, because it was alleged to be given at the intercession of their noble friends, who interponed themselves to mediate and accord betwixt this pursuer and the Earl of Murray, only for show, and to be a mean to preserve the Earl in his honour, and for his contentment, but not with any intent of exaction; which was offered to be proved by the oaths of the friends who interceded, being all noblemen of eminent quality, and of dignity, against whom no exception in law could be taken, viz. the Lord Lorn, the Lord Gordon, the Earls of Winton, Linlithgow, and Galloway; this reason was not found relevant to be proved by their oaths, neither would the Lords take their oaths ex officio, for they found, that witnesses, how honourable and noble soever they were, could not be received to destroy the bond; and the bond being also desired to be reduced, because it was granted for desisting from a criminal cause against the law, which prohibits parties to make such transactions upon criminal pursuits, and appoints the accusers making such transactions to be punished, as is statuted per Senatus Consultum Turpillianum D. et C.; for albeit transactions, per L. 16. Transigere, C. De Transact, be permitted, which are made super crimine, sanguinis pænam ingerente, as the defender proponed, and alleged, That the reason founded upon Senatus consult Turpill. specially where there is impetrate absolutio principis it liberates a pæna; yet the pursuer replied, That the law permitting such transactions, it is a parte rei, sed non a parte accusatoris, nam accusator turpiter transigit, specially where he is not party interested in the accusation, and where the party accused, neither has remission, nor declines the trial, but offers himself to the Justice; notwithstanding whereof, the transaction was sustained, and absolvitor granted to the defender; for the Lords found, That any bargain, or bond given by the party accused to him who urged the accusation, and whereupon the accusation deserted (albeit he to whom the bond was made, was not the party interested), the same could not be retreated upon that ground, specially by him who made the bond; but in this cause, the King had allowed of this transaction, by his Majesty's warrant, and also had granted remission to the party, which his Majesty willed not to be expede, while the bond and transaction were performed to the Earl of Murray.
Act. Nicolson & Aiton.Alt. Advocatus & Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 219. Durie, p. 483.
