Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

The Earl of Argyle
v.
George Cambell

Date: 2 February 1671

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The Earl pursues the Sheriff, as having been chamberlain to his father the space of divers years, to count for his intromission with the rents of his lands.

Against which it was alleged, That he could not count for his intromission these years, in respect he had a general discharge of the then Marquis, posterior to all the intromissions libelled, viz. vide in anno 1649, wherein this very pursuer is a witness.

To which it was replied, That the sheriff was in mala fide to take a discharge of the then Marquis this pursuer's father, because before the same he was involved in sundry heinous, enormous, and atrocious acts of treason, for which he was thereafter forfaulted in anno 1661; and so was incapable by the law to grant any discharge.

Duplied, The said acts of treason committed by him, for which thereafter he was forfaulted, being most latent and secret, neither could I, nor indeed was I obliged to know them, unless they had been notour to the whole country, as they were not; and thus was it determined in Regent Morton's case, who, sixteen years after the fact, being accused for the treasonable concealing of King Henry's murder, no dispositions nor other deeds whatsomever, made by him all that time before his accusation, were quarrelled, and of all necessity and reason it must be so, where the crimes are latent and not obvious to every man's capacity, as was in Morton's case; and so also here, else what a horrible uncertainty would men be put to, to know the most privy and close intrigues of those with whom they contract, or have otherwise to do, lest they be lying in the guilt of treason. 2do, He can never pretend that his father could not then grant a valid discharge, as being astrictus crimine læsæ majestatis, because, by the decreet of forfaulture given against him, it appears that the main acts and crimes for which he was forfaulted were all committed by him after his granting the said discharge, viz. in 1654, in which he complied mightily with the usurper; for though in his criminal libel there were many other things accumulated against him which were perpetrated before the date of the said discharge, yet his compliance in 1654 was the thing the advocate then insisted only on, and he declared he restricted his summons thereto. 3tio, Craig page 86, in initio, tells that payment may be lawfully made to one guilty of treason at any time before sentence, which he may also discharge; but ita est this discharge proceeded upon payment made to this pursuer's father of the rents of the lands intromitted with by him; Ergo, vide infra, No. 406. [June, 1673, Dalzell against the Tenants of Caldwell.]

The Earl also alleged, that notwithstanding of this discharge, the defender must count to him for some particulars of his intromission that he should pitch upon, because he offered him to prove by the defender's oath, that he had not counted for the same. To this it was answered, That the discharge behoved to liberate him from giving his oath anent any intromission with the granter's rents before the date of the same, and that it were a very dangerous thing if men were put to their oath where they sufficiently instruct by writ, especially considering that it is now twenty years and more since he counted, and gave up all his instructions to this pursuer's father, upon which exact account followed this discharge; and that tanti temporis intervallum produces in law probable oblivion, yea, the half of it suffices. Mascardius de Probationibus conclus. 1128.

Replied, The defender had no prejudice to give his oath, though it was in facto antiquo; because if he should depone non memini, whether I counted for such or such particulars, but for aught I know I did, this will assoilyie the defender, in regard his deposition proves not the pursuer's reply.

The Lords ordained the defender to depone.

This was my Lord President's doing, he being my Lord Argyle's great confidant. It was admired by all, that he blushed not to make a reply upon his father's forfaulture, and how he had committed many treasonable crimes before the discharge; and to see him, rather than tyne his cause, suffer his father to be reproached and demeaned as a traitor of new again by his own advocates.

L. 19. D. de R. Juris unusquisque debet scire conditionem ejus, &c. See 6th December, 1609, Cunyghame and Home. See Balfour's Collection of Practiques, Tit. 19 of Payment, in principio, folio 34. Reo majestatis non recte solvit debitor, L. 6. C. ad L. 3. majestatis; L. 41. et seq. D. de solutionibus. See Hope, Tit. of treason, folio mihi 246; see Craig, page 86, No. 446 and 479; Connanus, libro 5. Commentariorum capite ultimo.

Advocates' MS. No. 122, folio 88.