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Scottish Court of Session Decisions >>
Ramsay of Cairntown v James Carnegy. [1698] 4 Brn 406 (8 February 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040406-0815.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Ramsay of Cairntown v. James Carnegy
Date: 8 February 1698
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February 8.—Ramsay of Cairntown, as trustee for the Earl of Northesk, pursues James Carnegy of Phineven and Kinfawns, with his sister, for payment of sundry debts on the passive titles; wherein sundry acts of litiscontestation are extracted, and probation led. Phineven discovering, that in the summons, at first, he was only convened nomine tutorio, but that afterwards they cutted the libel, and convened him nomine proprio, as vitious intromitter with his brother Kinfawns's means, and caused the messenger take back the former execution, and give a new one, to meet the said amended libel; Phineven gives in a petition, representing this forgery, and craving Cairntown maybe ordained to abide at the said false execution, and he will improve the same, not only by way of exception, but also via ordinaria, having raised an action of improbation.
Answered,—This came too late; for improbation of the executions should be proponed initio litis, and not after litiscontestation; and his practising on the messenger, and eliciting declarations from him, cannot prejudge Cairntown, whatever they may operate against the messenger himself.
Replied,—Falsehood is omnium exceptionum ultima, et nunquam concluditiir in causa falsi; and though after litiscontestation it cannot be taken in by way of reply, yet it cannot be refused via actionis.
The Lords considered Cairntown had already used it, and so was liable on the Act of Parliament 1621, against users of false writs; and to put it in his option to abide at it, was to allow him to resile, and make the action fall; and though they did not allow to abide at such executions qualificate, yet the Lords had permitted them to protest their getting it from a messenger, and that using it should not import their accession to the forgery: but would not stop Cairntown's process on this alleged discovery, but let both go on together.
Vol. I. Page 821.
February 26.—Andrew Jamieson, messenger, who had executed Ramsay of Cairntown's summons against Carnegy of Phineven, (mentioned 8th current,) is examined in presence, and his declaration shown to him; wherein he acknowledged the execution was false, in so far as it bore he had cited him to compear nomine proprio, for his own interest. He now tergiverses, and pretends that declaration was elicited and emendicated from him by Alexander Jafry, Phineven's agent.
The Lords considering his prevaricating variation, and that one of the witnesses had already denied his being present at the giving of that execution; they put him in close prison till the other witness should be likewise examined.
