Manuscripta juridica

Acta litigationis Scotiae: John Thomson contra William McKittrick 1655-1669 , excerpts.

From this litigation, the following decisions of the Lords of Session are reported, but they are not mentioned in the present MS: 1662/6, by Gilmour, 32 = Morison 6893; 1662/7/3, by Stair, i. 121 = Morison 6892; 1666/7/19, by Dirleton, 10 = Morison 6892; 1666/7/21, by Stair, i. 400 = Morison 6893

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No. of pages: Fol. ii. recto - v. verso (see also continuation after fol. 346):

Rubric: The processe of reduction of apprysing, persewed at the instance of master Johne Thomsone against William McKittrick, the letters daitit the threttie of October i.m. vi.c. fyftie fyve yeiris [{i}1655/10/30{/i}].

[{i}Heading:{/i}] The lybell of the production.

The letters of apprysing and the executions of the searching and denuntiation of the lands following thairupon, together also with the acts of court quhairby the members thairof were created. The pretended process of apprysing with the clame given in by the said William McKittrick therupon for apprysing of the saids lands and tenements pertening to the said John Muligane, with the defenses and answers, if any were given in theranent. And wryts produced for instruction of the said clame. And particularlie ane disposition or assignation made, given and granted be John Blackmerchant in Drumfreis to the said William McKittrick, with the band granted be the said John Muligane to the said John Clack, quhairupon the same proceedit. Item ane band of corroboration, contract of wadset and infeftment following thairupon, granted be the said John Muligane to the said William McKittrick, with the acts and instruments of possession, if any were made. Item the interloquutors of the Court of apprysing, if any were (made) upon the same clame, with the pretendit decreit of apprysing following and given thairupon by Robert Baillie messinger of the dait at Drumfreis the twentie nynte of December i.m. vi.c. fyftie twa yeirs. Together with the instrument of saisin following upon the said apprysing, given be Thomas McBurnie, pretendit baillie therto, and Robert Newall shirreff clerke, pretendit notar thairof. To be seene and considered, etc.

[{i}Heading:{/i}] The reasons of reduction of the apprysing and infeftment following thairupon.

In the first, be cause of the common law and practick of this realme, the pretendit procese of apprysing with all that hes followed thairupon aucht and sould be reduced, because it is of veritie that John Muligane younger, merchant burges of Drumfreis, from quhom the said William McKittrick merchand burges of the said burges apprysed the saids tenements and lands, was inhibite and discharged at the instance of the said master John J Thomsone by Stephen Young messinger upon the trettene day of November and yeir of God i.m. vi.c. fyftie twa yeirs, to contract or ontake debts or soumes of money upon the saids tenements and lands in defraud of the said complener anent the implement and fulfilling to him of the soumes of money specifeit and contenit in the letters of inhibition. And siklyke upon the samyn day and yeir of God above writtin, the said Stephen Young messinger past to the mercat croce of Drumfreis, heid burgh of the shirreffdome, quhair the said John Muligane dwelled and the said tenements and lands did lye. And thairat, after three severall othess(?), open reading and publication of the said letters of inhibition, he inhibite and discharged all and sundrie the leiges of this realme, that they, nor nane of them, directlie nor indirectlie presumed nor tooke in hand to buy, block, take in wadset for maill, maill free in lyfe rent or utherwise any of the said lands or tenements, nor yet to resave fra him any publick or private infeftmentis, alienations, assignations, nor uther maner of dispositions, nor yet to furnish nor lend him any soumes of money thairupon in defraud of the said complener, as the saids letters of inhibition dewlie execute, indorsate and registrat at mair length bearis.

But trew it is and of veritie that the debts, soumes of money, bands and obligations of the samyn bands of corroboration, acts of court for possession, haill processe of apprysing and infeftment following thairupon were contractit and done, made, given and granted and subscryvit be the said John Muligane to the said William McKittrick and his foirsaids after the said John Muligane was inhibite and discharged to the sell or put away any of his lands or tenements, to make any alienations or assignations of the samyn, or to contract any debts or soumes of money thairupon in defraud of the said complener, and after also the leiges, and so by consequence the said William McKittrick was inhibite and discharged to ressave any alienation or right, buy, block or lend any soumes of money to the said John Muligane. And thairfor the said process of aprysing, infeftment and saisin following thairupon sould be reducit.

Secundlie, the said infeftment aucht and sould be reducit because of the law and continued practise of this kingdome inviolablie observed, founded upon ane Act of Parliament, made be King James the sixt, parliament first, act 27, quhairby it (wes) statute and ordained that na saisin be given within burgh of any lands or tenements within the samyn, but by ane of the baillies of the burgh and common clerke thairof. And if any saisin be utherwise given, the samyn to be null, of nane availl, force nor effect. Bot swa it is, and of veritie, that the said pretendit saisin and infeftment ... quia statuta principum sunt strictissimi juris.

Thridlie the said apprysing and all that followed thairupon aucht and sould be reduced, at leist all that followed upon ane assignation given by Johne Blackfork to the said William McKittrick, because it proceeded upon bands of usurie, according to the Acts of Parliament James 6, 14, 222, 247.

[{i}Heading fol. ii verso:{/i}] Information: master Johne Thomsone contra William McKittrick, in the second action of reduction of the said apprysing, anno 1662.

Master Johne Thomsone, having apprysit from Johne Muligane twa tenements and yards in Drumfreis, formerlie belonging to himselffe and being be vertew thairof infeft thairin in March 1655, William McKittrick in April following ... ejectet both the said parties and continues in possession thairof. Whose pretended infeftment is craved to be reduced upon the reasons following:

First, the said infeftment aucht and sould be reduced becaus the municipall law and constant practik of this kingdome (is) that na saisins aucht to be given within burgh bot be ane of the baillies and common toun clerke, utherwise to be null. Sasina enim in burgis, nisi a balivo burgi data et a publico burgi tabellione confecta, rejicietur: Craig, de feudis, libro 2.o, dieg. 7.a.

Secundo, the said pretended saisin aucht and sould be reduced, becaus of the ordinar formalitie always observed in giving of saisins, that they sould all be given be famous notars admittit thairto.

Tertio, in notario requiritur ut sit rogatus, et ut hoc exprimatur. Quod usque adeo necessarium est ut sine ea sasina non sit.

[{i}Heading:{/i}] A second information: master John Thomsone against McKittrick.

There being ane apprysing deduced at the instance of master John Thomsone against John Muligane, and that being also a prior apprysing at the instance of William McKittrick, the said William to preveene the said master John, quho used all laufull and legall diligence.

[{i}Heading:{/i}] A third information: master John Thomsone against McKittrick.

Johne Muligane, being debtor to master John Thomsone and William McKittrick in serverall soumes of money, they both deduced apprysings against him ... It was alledgit that the provest was in use before and after to exerce the office ... Master Johne supplicats to be heard upon the said resons, first that he, being a concreditor and having (...) acording to a standing law, and not being obliged be any law of this kingdome to have had recourse to any but the baillie and toune clerke, conforme to the Act of Parliament.

[{i}Heading fol. iii recto:{/i}] The 4th information: master John Thomsone contra William McKittrick.

In the reduction Thomsone against McKittrick, founded upon the Act of Parliament as not being granted be the baillie and toune clerke, being a saisin within burgh, the alledgeance proponed for maintaining thairof, videlicet that McBurnie was repute and halden as provest and that either thair was na toun clerke or that he did not exerce the office, being discharged be the Inglish, is alledget to maintaine the saisin ... it is replyit that the defender cannot be heard to make the said alledgeance, because it is offered to be proven that thair were laufull baillies then extant in office.

The defender answers that by proclamation all persons were inhibite to exerce any office quho had not taken the tenour. It is replyit be the persewer that this is not relevant, except the defender will prove a particular warrant sent to the provest and baillies of Drumfreis for that effect.

[{i}Heading:{/i}] The 5th information: master John Thomsone against McKittrick.

Master John Thomsone and William McKittrick, being twa creditors apprysers from Johne Muligane, and McKittrick being infeft be Thomas McBurnie and the shireff clerke ... It is now farder alledget by the said persewer, that thair being a standing law and Act of Parliament for saisins within burgh, the forsaid alledgeance is nawayis relevant, except some diligence had bein done against the toune baillie and toune clerke either be charge of horning or requisition.

[{i}Heading fol. iii verso:{/i}] Supplication master Johne Thomsone unto the right honorabell the Lords of Counsell and Session.

The humble supplication of master Johne Thomsone scheweth that, quhere zour petitioner and William McKittrick, being twa creditors apprysers from John Muligane, William McKittrick was infeft by Thomas McBurnie, ane unlaufull magistrat without any election ... Heirfor humblie requeists your Lordships to take the premiss into consideration and to ordaine both parties hinc inde, videlicet the defender to produce a charge of horning against the baillies or instrument of requisition against the toune clerke, and that zour petitioner also his reasons be ni(?)gmore pregnant ... tab Quhilk is humblie represented to your Lordships consideration.

[{i}Heading:{/i}] Unto the right honorabell the Lords of Counsell and Session,.

the humble supplication of master Johne Thomsone scheweth that, quhere zowr petitioner and William McKittrick, being concreditors to ane John Muligane and having apprysed his lands, William McKittrick moved Thomas McBurnie ... Heirfor humblie beseeches your Lordschips to take the premiss into consideration and to discharge the extracting of the forsaid act till your petitioner be heard and ressave your Lordschips interloquutor in the premisse, seing this may be a daungerous practick preparative if saisins be sustained to be given within burgh be persons extraneous and uther notars, contrair to a publick law, without any laufull or legall diligence done ... Quhilk is humblie represented to your Lordships consideration.

The Lords referris this petition to the Lord Halkertoun to be considered be him.

[{i}Heading fol. iv recto:{/i}] Unto the Lords of Counsell and Session, the humble supplication of master Johne Thomsone, wryter in Edinburgh, scheweth that, quheras there is ane act upon ane interloquutor pronunced be the honorabell the Lord Halkertoun in the action of reduction of ane infeftment, depending betwixt your Lordships petitioner and William McKittrick, ... it is humblie craved that ... the said William McKittrick defender may be ordained to make citation in the said act of the saids parties as the only persons who best knowes the veritie and can declare the truth in the said matter. And your Lordschips answere I humblie crave.

[{i}Heading:{/i}] Unto the Lords of Counsell and Session, humblie schewis your servitor master Johne Thomsone that, quhere in the action of reduction ... your Lordships hes closed upon interloquutors tuiching upon that reason founded upon the Act of Parliament ... your petitioner humblie craves to be heard upon the remnant reasons and speciallie upon this reason that the saisin wants severall solemnities ... and upon ane uther reason that he was not ane laufull notar admitted, upon quhich and severall uther reasons your petitioner humblie craves to be heard. Heirfor beseeches your Lordschips to take the premiss into consideration and to stay the extract of the act of litiscontestation untill your petitioner be heard upon the remnant reassons, that thair be not severall litiscontestations in ane cause, contrair the nature of process, quhich may breed confusion. And your Lordschips answer I humblie attend.

[{i}Heading:{/i}] My Lords of Counsell and Session. Unto your Lordschips humblie meanis and schewis your Lordschips servitor master John Thomsone, wryter in Edinburgh, that, quhere he having ane action of reduction of ane apprysing depending against William McKittrick baillie in Dumfreis ... necessar it is to have your Lordschips warrand to the judge ordinar in the Outer House to cause call the samyn that he may be heard to dispute upon the reasons therof. And your Lordschips answere humblie craves.

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[{i}The cause was delegated to Lord Kinglassie. He then brought a question back into the Inner House. Then the Inner House appointed Lord Tarbat to deal with the cause. Before him the pursuer's advocate lodged a complaint that Master William Hog advocat had been given a document for inspection which belongs to the pursuer, and refuses to give it back.{/i}].

[{i}Heading:{/i}] Extracted from the act betwixt Thomsone and McKittrick. Jan. 26, 1663.

The Lords be thair interloquutor fand the duply, videlicet that part therof that thair was no uther baillie in the toune of Drumfreis but Thomas McBurnie ... relevant to have bein proven, prout de jure. Quhilk being explained upon McKittricks supplication, they fand that Thomas McBurnie was habitus et reputatus provest at the tyme of the giving of the said saisin ... And last the Lords fand that part of the duply proponed for William McKittrick that Thomas McBurnie was tentus, habitus et reputatus provest ... and for proving therof assignet the first of November following.

[{i}Heading:{/i}] Objections against the witness adduced be William McKittrick in the act of litiscontestation forsaid. Jan. 27, 1663.

First, Robert McBurnie.

[{i}Heading fol. iv verso:{/i}] Interrogators to be demaunded at the witnesses.

First, quhither thair was any election of magistrats for the yeir 1653.

[{i}Heading:{/i}] The reasons of the 3rd reduction of McKittricks apprysing and infeftment thairupon. 10 June, 1663.

1. In the first, because of the common law and practick of this kingdome, all comprysings are null, the denunciation thairof being made before the dayis of payment contenit in the bands. Cum enim solvendi tempus obligationi additur, nisi eo praeterito, peti non potest. Or before searching and seeking of the defenders moveabells at the dwelling place and ground of the land. Bot swa it is, etc.

2. Secundlie, the said apprysing aucht and sould be reduced because of ane statute made by the Lords of Counsell and Session the 24 Julie 1623.

... [to point nr. 8, the which point is then subdivided into 3 sub-points].

[{i}Heading fol. v. verso:{/i}] Information: master Johne Thomsone contra William McKittrick.

Johne Muligane, being debtor in severall soumes of money, ... First, that McKittricks saisin is null because ... Secondlie the saisin is null because ... And if they sall alledge that thair can be no process in this reduction because thair was a former reduction at the same persewers instance ... it is anssered, the alledgeance aucht to be repellit because.

[{i}Heading:{/i}] 12 Julii 1666. G. avis. L. L.

Maxwell produced ane band granted by the defender to the persewer, quhairby the defender grants a ressait of the wryts called for in this reduction ... It is replyit that thair being ane particular Act of Parliament ... It was farder alledged that the persewer insisted upon his last reason that.

[{i}Heading fol. v. verso:{/i}] Information in the act of compt and reckoning betwixt Thomsone and McKittrick.

William McKittrick, having a wodset from John Muligane in certane tenements in Dumfreis, he did after deduce an apprysing ... quhairby McKittrick is oblist to accompt to him for the superplus of his intromission