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Scottish Court of Session Decisions >>
Thomas Duncan v His Majesty's Advocate. [1754] Mor 12289 (28 February 1754)
URL: http://www.bailii.org/scot/cases/ScotCS/1754/Mor2912289-045.html Cite as:
[1754] Mor 12289
In a claim upon a forfeited estate, contained in a bill, the creditor offered a proof by witnesses, that the debt was not a new, contraction of the date of the bill, but was the balance of an old debt, contracted many years before the term of the vesting act 20th Geo. II. cap. 41. The Lords found the proof was competent, and sustained the claim.
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Duncan entered a claim upon the forfeited estate of Sir James Kinloch-Nevoy for L. 100 Scots, contained in a bill accepted by Sir James, dated 28th August 1745. He offered a proof, by witnesses, that this debt was not a new contraction of the date of the bill, but was the balance of an old debt, contracted many years before the 24th June 1745, the term of the vesting act 20th Geo. II. cap. 41.
Objected for his Majesty's Advocate; 1mo, That the claim was not relevant; because, supposing the balance of an old debt was the cause of granting the bill, yet the bill was an innovation of the debt; and the date of it being posterior to the term when the estate was legally vested in his Majesty, the estate could not be burdened with it. And as an argument analogous, it was urged, that a disposition falling under the bankrupt act 1696, or under an inhibition, could not be supported upon this ground, that it was a surrogatum to an old debt. In a competition of infeftments, a creditor under a second infeftment could not plead preference to a first inteftment, because his iufeftment had come in place of one which had been prior to the first.
Answered for the claimant; That, in terms of the vesting act, this was a debt which was binding on the forfeiting person, and might have affected his estate before the respective days and terms whereon the same was vested in his Majesty. That, in the claim of Mr John M'Farlane upon the estate of Lovat, 12th July 1751, the objection here made had been repelled by one of their Lordships as an Ordinary, after having advised with their Lordships, and uniformly by their Lordships as Ordinaries, in many other cases. That the cases of the bankrupt act, of inhibitions, and infeftments, were not parallel; because, in all these cases, the law is express, and in the two last, the record is held to be notice of the circumstances of an estate, and they who give trust after such notice sibi imputent.
Objected, 2do, for his Majesty's Advocate; That a proof by witnesses was not competent in this case; because thereby a door would be opened to fraud; for that persons intending to rise in rebellion would always, when they granted bonds, take care to say before witnesses, that these bonds were for prior debts.
Answered, for the claimant; That the vesting act has not prohibited a proof by witnesses. Our law admits of such proof in similar cases: In reductions of writs on the head of death-bed, where the defence is, that the writ is for onerous causes, Lord Stair says expressly, “That witnesses are sustained to prove the onerous causes in the writ;” L. 3. Tit. 4. § 30. Parole evidence will be allowed to prove the date and delivery of holograph deeds. In reductions upon the act 1621, the onerous causes of deeds may be proved by the like evidence. See Lord Stair, L. 1. Tit. 9. p. 84.
“The Lords found the proof by witnesses was competent, and sustained the claim.”
Act. Scrymzeour.Alt. Alex. Home & And. Pringle.Clerk, Murray.
Fac. Col. No 103. p. 152.
