Scottish Court of Session Decisions

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

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v.
Maccub and his Spouse

Date: 29 June 1670

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This Maccub charges for eight bolls of beer, or the price thereof; which the suspender is decerned to pay by a decreet before the sheriff of Dumfries. The reason of suspension and reduction is, that the said decreet is null, being in absence; for though a procurator compeared, yet he had no mandate in writ. But the decreet is likewise intrinsically null, seeing the claim is proven by witnesses cited out of another sheriffdom, without letters of supplement, or rather witnesses ultraneo comparentes: and one of them, being the party who sold the beer to Maccub, and so (the same proving insufficient) by reason of the warrandice wherein he was liable, might gain or win in the cause, could nowise be witness; which by the decreet appears to have been proponed, and yet was repelled. On this reason he being reponed, he offered him to prove that the said eight bolls being given to him by the chargers as to a maltman, he told them the same was altogether rotten and insufficient, and that he could make very little good malt out of the same; they bade him make it upon their hazard; they should seek no more nor what he could get of it. Item, offers to prove by famous maltmen in the town of Dumfries, who saw the beer before he put it in the steep, and who said that it was nought.

This his intimation of the insufficiency thereof, at the time he received it, was found relevant and admitted to probation.

Weimes and Dickson.

Advocates' MS. No. 44, folio 77.