Decreet, 29 December 1698, Edinburgh

Att Edinburgh the first day of March J^aj vi^c nyntie eight yeirs

D1698/3/2

D1698/3/2¹

Decreet

Decreit Suspending The Letters Simpliciter Donaldsone Against Count Lessly

Anent the bill of Suspensione given in to The Lords of his majesties privie Counsell by James Donaldsone yownger merchand in Elgine James Cheyslie Chamberland to the Earle of Murray and David Dow tenent to the said Earle Mentioning That wher the said James Donaldsone is charged by vertue of The Commissioners of Justiciary for the notherne district ther Decreit obtained at the instance of Patrick Count Lessly of Ballqwhan to make payment to him of the Soume of Four hundereth and fourscore six punds Eleven Shilling four pennies Scotts money as the price of ane Gray powny alleadged belonging to him and in the possessione of the said James Donaldsone And of the expensses Loss and damnadges of two horse which the said charger hes payed or is to pay owt with a tenth pairt of the Said Soume more Conforme to and for the ends Specified in the Commissione wnder the great Seall granted to the Saids Commissioners And of fourteine dollars alleadged modified by the saids Commissioners for extracting the said decreit All specified and contained in ane pretended decreit alledged obtained by the said Patrick Cownt Lessly Against the petitioner befor the saids Commissioners upon the tenth day of november J^aj vi^c nyntie seven yeirs within a certaine Short Space next efter the chairge wnder the paine of pounding Most wrongousely and wnjustly for the reasones following to witt primo That the foirsaid pretended decreit is intrinsicallie nwll in soe farr as at the figwres 1:2:3: it lybells and conclwdes Capitall pwnishment and yet at the figure 4 where a double of the Lybell and wittnesses names were given to the petitioner it does not beare that he gott ane List of Assisers Conforme to express act of parliament theranent And ther is no mentione in the decreit that the said charger restricted his Lybell to restitutione And yet the Commissioners proceeded to advyse ane probatione without ane Assizer which is contrair to the fundamentall constitutione of the natione and the express tennor of ther Commissione By which they are only impowered to proceed upon the verdict of ane assize And this is the magna charta of the Leidges Securitie Secundo the decreit is intrinsicallie null as wanting any probatione that the horse lybelled were actwallie Stollen from the persewar which was absolutely necessary to be proven befor the bwyer bona fide in a publict mercat could be made lyable aither criminallie or in restitutione Since in moveables possessione presumes a title by our Law And the perseuer for moveables must prove two things viz his propertie and the modus qwomodo desyt possidere Notwithstanding wherof the chargers wittnesses at the figures II doe only depone that the two horse lybelled in the said decreit did belong to Count Lessly charger And that the pownie was Lay marked in the petitioners possessione But they depone not one word that ther horses were Stollen Soe that the pownie might have come in a Laufull maner to have bein sold to the petitioner And which is presumed in Law Since it is impossible to prove the progress of moveables otherwayes then by possessione yet the majority of the Commissioners were soe kein as to find at the figure 8 in the said decreit not only that the horse did belong to Ballqwhan But alsoe that they were Stollen from him at one tyme and from one place then which ther could be nothing more officiows Tertio the decreit is null as being ultra petita In soe farr as the price of the pownie is only lybelled to be fiftie pwnd and the price of the horse is lybelled to be Six hundereth merks Notwithstanding wherof the said decreit at the figure 5 decernes the Soume of Four Hundereth and eightie six pund threttein Shilling four pennies as the price of the pownie being one of the two horse lybelled and of the expensses of both the horses which the said chairger had payed out or was to pay owt Qwarto ther is notorious iniqwitie in the interloqwitor for at the figure 9 by plwralitie of votes The Commissioners fand that the bwying on a mercat Day in the high Street at welve a cloak with burgh and Hammell was not Sufficient to assoillzea the petitioner from damnadges though he presentlie offered restitutione of the pounie itself at the barr and the unjustice is yet the greater that not only David Dow who was the Seller is Solvent And that James Hattmaker who was one of the burgh and hamells is a city Securitie And that Mcqween who was the first seller is imprisoned But also the wittnesses at the figure 6 expressly Depone that one William Hutchion who was the other burgh and hamell was esteimed responsall Soe that ² the most Cautiows man could have behaved no more legally and fairly for the chargers behove then the petitioner did Its acknowledged that the possessor is allwayes bownd in Simple restitutione to the proprietar But ther could never be a conclusione of Damnadges against a pairtie wnles he be in fault and mora for restitutione is the effect of Dominion But Damnadges are the effect of a delict the petitioner was in no delict Since he offered back the pownie without deterioratione for he neither knew nor is it as yet proven that this pownie was ever Stollen for he bought upon the publict faith according to the Lawes of the Kingdome And finallie he procured Securitie for the charger beyond what he was obleidged By obtaining Mcqween who was the first setler imprisoned And the said David Dow to be decerned befor the Shirreffs Qwinto Ther was evident iniquitie in the interloqwitor for at the figure 10 by majoritie of votes the Commissioners fand that damnadges were not only due for the pownie then interpelled But also all the other damnadges for the other horse except allenarly his price It being a principle owght not to goe beyond the principall And the conseqwences therof wherfore it necessarly followed that the petitioner being assoillzied from the other horse he ought also to have bein assoillzied from the proportionall pairt of the damnadges Especially Considering that he was bona fidei possessor and had purchased according to Law and with soe great Cautione as afoirsaid Sexto the said David Dow and the said James Chrystie Doe concurr in procureing this Suspensione upon these two growndes viz primo that the chargers decreit ought to be Suspended and the said David Dow the sellar Liberat in conseqwence as to him the said James Chrystie he could never be fownd lyable Since he did all that Law requyred haveing prodwced the said David Dow who accordingly compeared and confessed in Court Secundo it appeares by the said decreit at the Letters B B that the said David Dow bought the horse befor famows wittnesses from the said Mcqween who is now prisoner in the tollbwith of Forress as afoirsaid so that both the said James Donaldsone who bought the horsie and the said David Dow who sold the Same to him being bona fidei purchasers ther is no more due by them to Balqwhan then Simple restitutione which they have alreadie offered and are yet willing to give for peace Sake tho he hes not yet proven the powny was Stollen so that he can only have actione against Mcqween aither Criminallie or civillie for his damnadges And therfore The Letters owght to be Suspended presently Simpliciter without obleidgeing the petitioners to Longer attendance upon a Sist since all the foirsaids reasones are instantly verified by ane extract of the decreit itself therwith prodwced And therfore etc yet for Superabundance they Shall fand Cautione acted in ther Lordships bookes As the said bill of Suspensione in itself at more Lenth proports Which bill of Suspensione being upon the twentie third of december J^aj vi^c nyntie seven yeirs read in presence of the saids Lords of privie Counsell They alloued Count Lessly the charger to Sie and ansuer the said bill untill ane certaine day and in the mean tyme Stopped executione upon the decreit chairged on And therefter The Councill haveing past the said bill the chairger Gave in a petitione to the saids Lords Craveing that ther Lordships wowld Stopp all furder expedeing of the said suspensione and allow the petitioner his answers to the reasones therof to be yet given in that the reasones might be discust upon the bill And that the whole mater might be Layed befor the saids Lords And Craveing that ther Lordships would grant warrand for citeing […] Donaldsone clerk to the process wherin the decreit charged on is pronwnced to exhibite in the hands of the clerks of Counsell the growndes and warrands of the decreet chairged on And the saids Lords haveing upon the Seventh day of Janwary Last by past Considered the said petitione They by ther deliberance theron ordained the said Clerk to the Commissioners of Justiciary to exhibite and produce in the hands of the clerks of privie Counsell the haill grownds warrands and minwts of the decreit charged on And alloued Letters of dilligence to be direct at the chargers instance to the effect foirsaid into ane certaine day now bypast and assigned the Same day to the Suspenders to debaite the reasones upon the bill of Suspensione And in the mean tyme Stopped the giveing out of the said Suspensione alreadie past And the said charger haveing accordingly taken owt a dilligence and caused execute the same against the saids Commissioners ther clerk The said clerk produced in the hands of the clerks of privie Cowncell the grownds and warrands following of the decreit chairged on Viz principall Lybell Lord Count Lesslie against James Donaldsone dated the second day of November J^aj vi^c nyntie Seven yeirs Beareing on the foot and back therof a pairt of the debate ariseing therfrom Item Two Severall executeiones one against Donaldsone and the other against wittnesses The first dated the Second day of November and the other the first and Second dayes of the Samen J^aj vi^c nyntie Seven yeirs Item thrie half Sheets of paper back and foir Containing the rest of the debate the witnesses depositiones Count Lessly his own depositione with the Commissioners interloqwitor upon the said lybell and debaite Item James Donaldsones exculpatione dated the Second of november J^aj vi^c nyntie Seven and executione therof dated the third day of november the said yeir Item ane extract of ane process of releiffe at James Donaldsones instance against David Dow wnder the hand of Andrew Monroe Sherreff clerk of Murray Efter productione of the which grownds and warrands The said bill of Suspensione being againe upon the twentie fourth day of Febrwary Last by past called in presence of the saids Lords to debaite the reasones therof upon the bill and the said James Donaldsone one of the Suspenders compeareing personallie and the said James Chrystie and other Suspenders being oft tymes called and not compeareing personallie and Sir James Stewart his majesties Advocat and Mr Francis Grant Compeareing as Advocats for³ the haill ⁴ Suspensders ⁵ And the said Count Lessly being oft tymes called and not Compeareing personallie But Sir Patrick Home Mr Hewgh Dalrimple and Mr James Fergwsone Compeareing as Advocats for him The bill of Suspensione and ansuers therto for the charger being both read And both pairties at length heard to debaite in the said mater The Saids Lords nominated and appointed a Comitie of ther own number for considering the decreit charged on with the instructiones and grownds and warrands therof And to report ther opinion in the said mater to The Counsell Which Comitie haveing accordingly mett They gave in ther report bearing That the Comitie haveing considered the reasones of Suspensione and the chargers ansuers with the decreit charged on and grounds and warrands therof They fand that the decreit is not formall and that the interloquitor did not agrie to the probatione nor were according to Law And therfore it was the Comities opinion That the Letters Should be Suspended Simpliciter As the Said report at more Length proports which report with a petitione given in by the said Patrick Count Lesslie the chairger being both this day read in presence of the saids Lords of privie Counsell and considered by ther Lordships The Saids Lords doe heirby approve of the said report And have Suspended and heirby Suspends the decreit charged on at the instance of the said Patrick Count Lesslie against the said James Donaldsone James Chrystie and David Dow Suspenders Simpliciter in all tyme comeing And the saids Lords have refwised and heirby refwises the desyre of the said petitione given in by the said Patrick Count Lesslie