Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Weir of Newtoun
v.
Hamilton of Gilkerscleugh

Date: 23 February 1710

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The deceased John Hamilton of Gilkerscleugh, having conceived a prejudice against Newtoun, on account of a process against him; he went, in 1682, to Major White, the Laird of Meldrum, and others commissioned by the Privy Council, to search out those who had been at the Bothwell-bridge rebellion, or had resetted or harboured them; and delated Newtoun as accessory, in having furnished horses to some of those rebels, and dealing with him by many arguments to join them, threatening he would be ruined if he did not; and that he did not retire till he heard the Duke of Monmouth was marching; against them: and that he harboured those ministers in his house, who privately baptized the children round about, and had several intercommuned rebels on his ground: And, on this malicious information, he got him imprisoned, first in Edinburgh, then in Dunbarton, where he waskeeped two years and a half close prisoner, and put to vast trouble and expense, besides the loss of his own business, extending to more than L.500 sterling. After the Revolution, Newtoun gives in a bill to the Parliament, in July 1690, representing, That, by Gilkerscleugh's false and malicious information, he was brought in hazard of his life, being accused of treason, and was damnified in his estate to a great sum; and, therefore, craved reparation of his losses: who remitted the affair to the commission of Parliament for fines and forfeitures. And they having called Gilkerscleugh before them, and taken precognition of the fact, and examined witnesses on both sides, it seemed evidently proven, That Newtoun's imprisonment was occasioned by Gilkerscleugh's delating and giving a subscribed information against him, with a condescendence on the witnesses to prove; and that he offered some of them money to depone against him, and had threatened to prosecute him to the gallows. On which, the committee gave their opinion, that he ought to refund Newtoun his damages, which they restricted to 3,500 merks, though it was more than the double of that sum.

But the Parliament rising, they remitted the cognoscing it to the Lords of Session; and, during the dependence there, Gilkerscleugh dies, and Newtoun transfers his complaint against his son: for whom it was alleged,—1mo. That this action, being penal, was odious and unfavourable quoad the heir of the delinquent, who was innocent, and represented his father in his estate and heritage, but not in his crimes; seeing delicto, suos tantum tenent authores, and do not transmit to heirs; for noxa caput sequitur, sec. 1. Institut. de perpet. et tempor. act. ex maleficiis provenientes actiones in rei hæredem non competunt, as fiirti, vi bonorum raptorum, injuriarum, (of which kind this is, being injuria verbis concepta;) and therefore it died with its author, and cannot be insisted in against his heir.

Answered,—That this action was not merely penal, but likewise rei persecutoria, being for making up his damages, arising by your falsely accusing one of treason. 2do. It is certissima juris regula, that even penal actions, if litiscontested against the committer in his own lifetime, transeunt in hazredes; because litiscontestation is a judicial transaction, contract, and novation, which perpetuates the action: And here there was a full and plain litiscontestation; for, not only is there a probation led before answer, but likewise defences proponed for Gilkerscleugh, viz.: That he was forced, by those in the power and government at that time, to give information against Newtoun; so it was no voluntary act.

Answered,—That what passed in private conversation betwixt Newtoun and him could never arise in judgment against him, had he not maliciously discovered it: for there were no witnesses present to divulge, or bring him in hazard of concealing treason; so that the affair in his own lifetime wanted nothing but the Lords' authority and approbation of the report to finish it by a decreet.

Replied,—All that was done by the commission, was, by way of summary inquiry and precognition, which never amounts to a litiscontesting; for that requires the discussing of the relevancy: for which, see l, unica Cod. de Litiscontestat.; though with them it was much less than with us.

The Lords shunned directly to find it was litiscontestated in Gilkerscleugh's lifetime, but did the equivalent, by finding this action did not terminate by his death, but was transmissable and competent against his heirs; reserving all defences his father could have proponed, as accords of the law.

Vol. II. Page 571.