Scottish Court of Session Decisions

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

George Pringle of Torwoodley
v.
The Viscount of Strathallan

Date: 23 February 1694

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February 23.—The Lords repelled this defence, That he offered to prove, though the disposition bore that Strathallan's father received the £30,000, yet truly he was but an interposed trustee, and the money went to Chancellor Perth's use; and he is not called to defend. The Lords found Strathallan, in respect of his acknowledgment in the disposition, and of his special Act of Parliament, liable in restitution; reserving his recourse against Perth.

Vol. I. Page 616.

February 27.—The case of George Pringle of Torwoodley, against the Viscount of Strathallan, mentioned 23d current, was again heard upon a bill. Alleged,—It was not legally reported conform to the Act of Parliament 1693, the minutes not being adjusted, nor intimation made to the defender's advocates. Halton, the reporter, and William Wilson, the under-clerk, having declared there was an intimation made, the Lords repelled that allegeance.

Then they repeated the second defence, That Strathallan received not the money paid for the composition of the forfeiture, viz. the £20,000; but that the Earl of Perth only borrowed his name to it, and therefore Perth ought to be cited. And the Lords were remembered they had done so in the pursuits betwixt Meek and Mr John Menzies against Mr John Buchan; that, in regard it appeared he was only a trustee interposed for Urquhart of Meldrum, therefore they appointed Meldrum to be cited incidenter, that they might all be in campo, and the process go on also against him. This the Lords repelled, because Torwoodley had a special act, which was not in Buchan's case.

3tio. They alleged Torwoodley was lucratus by the composition, for thereby he got a right to a novodamus of his estate, which liberated him from all defects with which it might be charged before; as also, he got a remission and rehabilitation, and therefore he must account for the benefit he had thereby. Answered,—The forfeiture being rescinded by law, all these depending on it do necessarily fall in consequence. The Lords repelled them hoc loco; reserving the consideration of these casualties, what they may operate, if Strathallan should hereafter insist in any other process to liquidate the same.

4to. Alleged,—He could not be liable; because he offered to prove that Strathallan was employed by Torwoodley, as his trustee, to make the transaction, and he did it with his consent allenarly. This the Lords found relevant, at least to cause Torwoodley recur against Perth, the receiver of the composition. But the question arose anent the manner how it was to be proven? alleged,—Trust might be proven by adminicles, presumptions, and circumstances. But, in regard they did not condescend on them, the Lords found it probable only scripto vel juramento; and, if they elected Torwoodley's oath, they would allow the commoners to be confronted with him: but would not put them presently to make their election; in regard their advocates and Blair Drummond gave their oath of calumny that they had reason to propone the said allegeance, without which the Lords would not have sustained it; seeing Strathallan, the party, was not present to give it. And thus it was, after a great struggle, delayed till June, which the defender was mainly seeking; and was complained of by some as evacuating the late Act of Parliament, ordaining all these actions to be summarily discussed. But it could not be the meaning of summary discussing, to exclude defences or diets to prove them, but only to dispense with the abiding the course of the roll and these other dilators in form. On the 23d of June 1694 Strathallan gave in his protest for remeid of law against Torwoodley's decreet.

Vol. I. Page 617.