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Scottish Court of Session Decisions >>
David Ogilvie of Pelty v Lord Balmerino and the Master of Balmerino. [1699] 4 Brn 446 (14 July 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Brn040446-0880.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
David Ogilvie of Pelty v. Lord Balmerino and the Master of Balmerino
Date: 14 July 1699
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David Ogilvie of Pelty pursuing maills and duties of the lands of Cowbyres, whereunto he had right by disposition from the deceased Lord Cowpar; the Lord and Master of Balmerino, as heirs to the said Lord, compear, and repeat a reduction of the disposition, on this head, That it was never a delivered evident, but a mere trust, or unwarrantably got up after the Lord Cowpar's death. And the allegeance being referred to his oath, he, on the first examination, depones, That he had served my Lord many years without any fee; and, being his Lady's cousin, believes this was given him in remuneration, being but 100 merks per annum; and that he got it, after my Lord's death, from a vassal of his, but was not clear to tell his name. Thereafter, being reëxamined, he acknowledged it was given him by George Ramsay of Gallery; and, being interrogated what he said to him, declared, That he told him he had got the disposition to deliver to him; but could not say that he spoke any thing of my Lord Cowpar, or any order from him.
Balmerino Contended,—This oath proved his defence, in so far as, 1mo. He acknowledged he neither got it from Cowpar in his life, nor mentioned any order he had left to deliver it. 2do. He had industriously concealed the party's name in the first oath, which he reveals in the second; but then Ramsay was dead: which can admit no other construction but that he refused to name him, lest he had been examined from whom he got it, and how he came by it, as certainly the Lords would have done; by which the unwarrantable manner of meddling with it, after my Lord Cowpar's death, would have come to light. 3tio. He confesses Ramsay, at the delivering it up to him, spoke nothing of Cowpar, or any order from him.
Answered,—Parties having a writ in their hands have no more to do but to oppone it; and warrantable delivery is presumed in law till the contrary be proven. And this oath contains nothing but what is fair and honest; and his concealing the vassal's name was upon no other account but that he might not expose him to his superior Balmerino's resentment and displeasure; and, if it was an undelivered evident, how came it they did not quarrel it for twenty years together? and the onerous cause for granting it was very plain.
Some were for reëxamining him; but the plurality of the Lords found, The oaths did not prove that he warrantably came by the said disposition, or that there was any previous order or warrant from Cowpar to deliver it; and therefore preferred the Lord Balmerino: and found it an undelivered evident on the presumptions foresaid.
