Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Sir William Binny of Valleyfield,
v.
Sin Alexander Brand of Brandsfield

Date: 18 November 1703

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Tillicoultry reported Sir William Binny of Valleyfield against Sir Alexander Brand of Brandsfield. The said Sir William and Alexander entered into a tripartite contract with Sir Thomas Kennedy, in anno 1693, for buying 5000 stand of firelocks to the Government; by which bargain they had £1500 sterling of net profit. On this agreement Sir William charges Bailie Brand for £500 sterling as his third part of the said profit; who suspends, on thir reasons: 1mo. That the said contract was found defamatory at Privy Council, against two noble persons therein named, and so cannot be the foundation of a charge now; 2do. It is null as wanting witnesses, and not designing the filler up of the date, which, by ocular inspection, is done by another hand, different from the writer of the body of the paper; and being posterior to the Act of Parliament 1681, is not suppliable by condescending on the writer, ex post facto; 3tio. Though, by an Act of Treasury, Sir Alexander Brand was once allowed to retain the said £ 1500 sterling out of the first end of his tack-duty of Orkney and Shetland, yet they have since put a stop to it, on the discovery of their private transaction, and so his counts are not finished; whereby he cannot pay their shares, till he get it allowed.

Answered, to the first,—They were fined for the defamatory part of this agreement, and so that sentence purged the fault; so that the paper stands obligatory and in force against Sir Alexander, who is in mala fide to obtrude this, being in pari if not in majore culpa, as to that defamation, than Sir William Binny is to the second.

Answered,—That the writ was probative though wanting witnesses, being hire mercatoria, and a bargain for arms; and where there were three or more parties contractors subscribing, they were found mutually witnesses one to another, 19th July 1676, Forrest against Veitch. And as to the objection, That the filler up of the writer's name and date is not designed in the body of the writ, the same is no nullity, nor required by the Act of Parliament 1681, which mentions only that the want of the writer shall not be suppliable; as was found 30th November 1683, Watson against Scot, observed by President Falconer.

To the third, answered,—That the Act of Treasury neither is nor can be recalled, seeing he is expressly allowed retention of as much of the tack-duty of Orkney in his hands, and which he actually detains to this hour.

The Lords repelled the nullities, and found the writ valid and probative; he always proving his condescendence, that it is filled up by Sir Thomas Kennedy's own hand. And as to a present decerniture of paying Sir William's third part, some of the Lords moved, that, on Sir William's finding caution to refund if the Exchequer should reject the article, Bailie Brand might be decerned in present payment; but the plurality thought it enough to find him liable in his third part, and delay the payment and extract of the decreet till the 1st of September next, that Bailie Brand might, medio tempore, apply to the Exchequer and Treasury to get his accounts finished, and that article allowed, and taken off his hands; but ordained him to find caution to Sir William, to pay his dividend, how soon he gets it allowed.

In this cause, the Lords took notice of some reflecting, indiscreet expressions in Bailie Brand's printed information, and, among the rest, of thir words, That what he had said did prove Sir William Binning and Sir Thomas Kennedy to be infamous cheats, not worthy to be conversed with, and who ought to be ashamed to show their faces in public again; for though they had been fined for attempting bribery, yet Veritas convitii non semper excusat, and he was equally guilty, and the sentence did not, per expressum, impose infamy. And if beating, pendente lite, loses the cause by the Act of Parliament, what deserves he who robs one of their reputation, by so public a defamation? The Bailie being called in, and asked if he owned these words, and if they were his own or his lawyers'; he ingenuously purged his advocates, and acknowledged they were of his own adding, being much provoked by their tricks; but, if they offended the Lords, he begged their pardon. However, the Lords, to discourage such reflections in time coming, fined him in 900 merks, to be applied to pious uses, at the sight of the Lords; and sent him to prison till he paid it, and likewise craved both the bench and the parties' pardon for his offence.

Vol. II. Page 191.