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Scottish Court of Session Decisions >>
Oliphant v Earl of Marischal [1630] Mor 5733 (23 March 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor1405733-007.html Cite as:
[1630] Mor 5733
A party was allowed proof of alibi from the place where denounced.
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Mr William Oliphant intented a reduction of a horning used against him, upon this reason, that he was denounced at Edinburgh, he being dwelling in the mean time in Kirk-hill, within the sheriffdom of Linlithgow. Alleged by the Earl of Marischal his superior, and to whom his liferent belonged, and offered to prove, that he was dwelling at Edinburgh for the time. Although the Lords are ever in use to sustain such an allegeance made in fortification of an execution, yet here they preferred the pursuer in proving that he dwelt alibi, both in respect he condescended upon witnesses omni exceptione majores, all landed gentlemen and ministers; as also because he had great presumptions on his part, viz. the horning was executed in September, at which time it was not probable the pursuer could be dwelling in the town, having a great mains in labouring himself. Sicklike his wife and family were known to remain in the country the most part of the year, even in Session time, much more in vacance.
Spottiswood, p. 153.*** Durie reports the same case:
In a reduction of a horning, because the pursuer dwelt within another Sheriffdom, viz. Linlithgow, and so should have been denounced at the market-cross of the head burgh of that shire, whereas he is denounced at Edinburgh, within the shire where he then dwelt not, and the defender offering to prove, in fortification of the horning, that he dwelt within Edinburgh, at the market-cross whereof he was denounced, and so alleged that he ought to be preferred, for maintaining of the writ, it being pro fisco; the Lords nevertheless repelled this exception, and preferred the pursuer, in admitting of his reason to prove, that he dwelt alibi; which was done, because he offered to prove the same by witnesses, condescended upon by him, which were omni exceptione majores, viz. barons, advocates, or ministers, albeit the excipient offered to prove his allegeance, by famous unsuspected witnesses.
Act. Præsens.Alt. Nicolson & Fletcher.Clerk, Hay.
Durie, p. 512.
