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Scottish Court of Session Decisions >>
James Balfour v Lord Pitmedden. [1706] Mor 6861 (17 January 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Mor1706861-018.html Cite as:
[1706] Mor 6861
Days, how computed. - Induciæ in a charge of horning. - Baron decrees. - Citations pro confesso. - Criminal sentences. - Induciæ before inferior courts. - Reductions and improbations. - Privileged summons. - Decree-arbitral. - Citation of tutors and curators.
James Balfour v. Lord Pitmedden
Date: 17 January 1706 Case No. No 18.
A party was charged with horning on six days, on a decree-arbitral which mentioned no days, but only the words, “in form as effeirs,” which imports 15 days; but the submission mentioned six days. Found, that the charge on six days was proper.
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James Balfour merchant in Edinburgh, gives in a complaint against my Lord Pitmedden, that he had charged, denounced, and registrate him upon a decreet-arbitral, determining their shares in the powder manufactory, upon six days; whereas the decreet bore 'in form as effeirs,' which imports that it behoved to be on 15 days, as all other decreets are, especially seeing he was no subscriber of the submission; and therefore craved not only relaxation, but also that my Lord might be decerned to retire the horning out of the register, or to procure him the gift of his escheat on his own charges, and to repair his damages. ——The Lords thought they could not meddle with the registers; but appointing the bill to be seen, it was answered for Pitmedden, That his being in the north hindered his signing of the submission, but he accepted and homologated the same now, which was equivalent to signing; and the raiser of the letters of horning was sufficiently warranted to make the charge to pass on six days, because the submission bore that time, and the decreet-arbitral, though in general terms, must be regulated thereby; for though judicial sentences charged on require 15 days, yet that is no rule for decreets arbitral; and though in the case of Graham of Balgowan and Campbell of Boghole*, the horning was found unwarrantable, yet that does not meet this case, where the money only lay in Balfour's hand, as trustee and depositary, being treasurer to the
* Examine General List of Names.
company and their servant, and his applying it to his own use was a species furti; and if he by his wilfulness in keeping up the money, has brought himself into the briers, sibi imputet; for law says, Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire.——The Lords found the charge in this case might warrantably proceed on six days, and therefore refused the desire of Mr Balfour's bill, but allowed him to suspend and relax, having now made payment.
Fol. Dic. v. 1. p. 466. Fourtainhall, v. 2. p. 313.
