Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Hog
v.
James Kirk

Date: 6 January 1670

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In a suspension at Hog's instance, against James Kirk, of a decreet recovered at Forbes's instance, his author, of a decreet before the commissaries, for payment of the price of certain plenishing, upon this reason:—That the decreet was null, as wanting probation, in so far as many of the particulars were proven per testes singulares: It was answered, That the pursuer's oath was taken in supplement; which was sufficient in this case, where Hog had entered to the possession culpa et dolo, without any warrant. It being replied, That the charger had left his house when the English forces came in; and the suspender, being landlord, was necessitated to enter to the possession of his house, for preservation thereof, and of the charger's plenishing.

The Lords found, That his intromission with the plenishing could not be proven per testes singulares and the pursuer's oath of supplement; but by the suspender's oath, if there were not two witnesses to prove the same. Thereafter this interlocutor being reconsidered upon a bill, the Lords did sustain the probation per testes singulares and the oath of supplement; unless the suspender will prove, that before his entry to the house, the English soldiers, who were there quartered, and the charger's own servants, did carry away some of the plenishing; which being proven, they declared they would adhere to the first interlocutor.

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