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Scottish Court of Session Decisions >>
James Deans v Sir Adam Blair. [1678] 3 Brn 215 (00 January 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Brn030215-0275.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
James Deans v. Sir Adam Blair
1678.
January.
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JamesDeans, bailie in the Canongate, charges Sir Adam Blair of Carberry for £900 contained in his bond. Sir Adam craves compensation for some coals furnished by him to the charger, and refers it to his oath. He not being clear on the quantity, defers it back to Sir Adam. He scruples likewise. Craigie, Justice-Clerk, ordains the coal-grieves and inlayers of the coals to be examined anent the quantities.
Against this, Alleged,—They could not take away a liquid written bond. Replied,—James Deans his oath had loosed and taken it away this far,—That he had declared he had gotten some coals in part of payment. The Lords sustained the quantities inlaid to be proven by the witnesses foresaid.
But the term being circumduced against them, for not compearing to depone, James Deans, charger, declared he was now clear, after trial, to depone on the number of the loads furnished.
Then Sir A. Blair obtained a declaration from the Lords of the Treasury, that since this bond was contracted on that account, therefore recommended to the Lords to supersede any execution on it till Sir Adam had closed his accounts in Exchequer.
Against this it was Objected,—That it was rescriptum subrepticium et obrepticium, celata veritate et expresso, mendacio, contra jus et utiliiatem publicam; and therefore the Emperors themselves command it ab omnibus suis judicibus refutari. And our Acts of Parliament condemn all privy writings, contrary to the furtherance of justice. Act 47, Parliament 1587, and the laws there cited from the Codex.
