State of the Process 1767

January 13, 1767. S t a t e St aeP P R o c e s s, Alexander MudieR ocsaPc s, AberbrothockR A G A I N S T John, AlexanderR MargaretR ElizabethR �,� Ane OuchterloniesR �es��cP, St aeP �P�P��P� Alexan- der OuchterlonyR ��aP �cS�S�a St Aberbrothock, John ohnston St CairntonR �����,� aS aeP ��s� MargaretR �,� David WebsterR �Pc�e�,a s, AberbrothockR �����,� aS aeP ��s� ElizabethR �,� aeP ��aSc� �,� ��c�aSc� St ���e St aeP ��s� �es��cP, �� �cP �s,Sc�R st aeP� �,� e��PR tSc aePsc �,aPcP�a�R �� cP�cP�P,as,� aeP ��s� �P�P��P� Alexander Ouchterlony ��S, S,P Sc SaePc St aeP ���s�P �sa�P� �,S, s,!� " T HE Pursuer insisted in an action before the She-riff-depute of Forfar, against the Defenders, li­belling, That, upon the first of April 1762, when the Pursuer was going up to the Tolbooth of A- berbrothock, with the Conditions of Sale of several Tenements and Yards lying within the said Burgh, which belonged to the deceased John Spink, some time Shipmaster there, Alexan­ der Ouchterlony, Provost of the said Burgh, now deceased, came to the said Pursuer, and desired he would purchase for him him one of the Tenements and Yards, viz. that Tenement and Yard, then possessed by James Soutar, as he wanted to put in James Ogilvy, one of his the said Provost’s Tappers, or Retailers of his Ale, into i t; that the Pursuer having asked Provost Ouchterlony what length he should bid for him for this Purchase, the Provost 's Answer was, “ You are to bid till I draw off my Right-hand Glove.” Accordingly, the Provost and Pursuer went immediately to the Tolbooth, where the Pursuer, in the Provost's Presence, purchased the said Te­ nement and Yard at the Price of 65 l. Sterling, (he having never drawn oft' his Glove;) and the said Alexander Ouchter­ lony declining to be known in the Purchase, the Pursuer was, by the Judge of the Roup, preferred to the Subject, and or­ dained to pay the Price at Whits unday thereafter, or grant Se­ curity therefor, with Interest from said Term, conform to the Articles of Roup; that the said Term of Whitsunday being also, by the Articles of Roup, the Term of the Purchaser’s Entry, the said Alexander Ouchterlony did then enter to the Possession of the said Tenement and Yard, and not only caused lay the lower Floor with Pavement, desired one Alexander Soutar, Wright in Aberbrothock, to make a new Roof for the same, and bought and prepared 22 Bolls o f Lime for repair­ ing thereof; but also, at Martinmas thereafter 1762, uplifted from the then Tenants of these Subjects, half a Year’s Rent that was due pre ceeding that Term, and afterwards continued to use several other Acts of Property, by removing Tenants, and setting the same to o th e r s; that, when the Pursuer de­ manded the said Alexander Ouchterlony to make Payment of the Price of these Subjects, and to relieve the Pursuer of the Purchase and haill Conditions of Roup; he put the Pursuer off for some Time, with frivolous Pretences, and, namely, that the Rights had not been delivered to him in Time; but the true Fact was, that he had not then the Money, for Mrs. Ouchterlony, his Wife, went to Provost John Wallace, the Exposer of the Subjects for the Behoof of John Spink's Representatives, Representatives, and acquainted him that her Husband could not pay the Price at the Term limited by the Articles, and insi sted for a Delay of the Payment till the next Term there­ after; and the said Pursuer being sued for Performance of the Articles, was obliged to bring a Process against Mr. Ouch- terlony, for relieving the Pursuer of the same, &c. but the very Day on which this Process was called Alexander Ouch- terlony died; that the Purfuer having renewed this Procefs a- gainft the Defenders, as representing the said deceased Alex­ ander Ouchterlony, upon one or other of the passive Titles known in Law; and concluding against them for Payment of the foresaid Sum of 65 l. Sterling of Purchase-money, with the Interest thereof since Whitsunday 1762, and of 5 s. Ster­ ling o f Instrument-money, paid to the Clerk at making the Purchase, with a fifth Part of the Price offered of Penalty in­ curred through Failzie, in terms of the Articles; and to re­ lieve the Pursuer of the Purchase and haill Conditions of Roup, and also for Payment of the Sum of 20 l. Sterling in name of Damages and Expences. Compearance was made for the Defenders, and the Defences insisted upon for them were these, That, as to the verbal Commission, given by the Defenders Father to the Pursuer to purchase the foresaid Sub­ jects, they denied they knew any thing of it, and contended that a Proof could not be allowed, because, as this Question was concerning a Bargain of Heritage, or a Commission gi­ ven to bargain for Heritage, without Writing interveening, therefore not binding, though referred to the Oath of the party, and, till Writing is adhibited, Law gives both Parties a Right to refile; that, as to the Defender's Father taking Pos- session of the Tenement at Whitsunday 1762; laying, the Floor with Pavement, sowring Lime, & c. the Defenders denied that they knew any thing of the Certainty of these Facts, or, if they are true, for what Cause they were, as it may be fup- pofed. their deceased Father might have been in Terms withthe the Pursuer for a Lease or Tack of the said Tenement, and to be at the Expence of such Reparation, if necessary. To instru ct, that the Facts libelled on by the Pursuer are the very same on which the Process against Provost Ouchter- lony himself was founded; the Pursuer produced the same, and insi sted, that locus poenitentiae could not take place in this Case, which only respected his being relieved by the Defen­ ders of a Commission or Trust given him by their Father, and which he offered to prove, and that they were in the Knowledge o f; for, though, at the Time the Pursuer got the verbal Commission, he could not possibly get a written one, yet the Defenders Father, taking Possession as before mention­ ed, and uplifting the Rents, &c. clearly homologates the ver­ bal Commission, so that this rei ntvustakes off the Power of refiling, and res is no more Integra. The Sheriff-substitute, on considering the Libel, Defence, Answer and Reply, found, for the Reasons advanced in the Defence and Reply, that a Proof is not competent, as craved by the Pursuer; therefore refused and assoilzied the Defen­ der. The Pursuer reclaimed against this Interlocutor by Petition; upon advising which, with Answers thereto, the Sheriff refused the Desire of the Petition, and adhered to his former Interlocutor. O f this Interlocutor the Pursuer applied for and obtained Letters o f Advocation, which having come of course before Lord Auchinleck, Ordinary, his Lordship, upon a Debate, ad­ vocated the Cause, and, before Answer, allowed the Pursuer to give in a particular Condescendence o f the Facts he offer­ ed to prove. The Pursuer accordingly gave in the following Condescen­ dence of Facts which he offered to prove, v iz. 1m o, That, immediately after the Roup of the Houses in question, the said Alexander Ouchlerlony declared, that the House was pur- chased for him, in order that he might put in it one James Ogilvyt who tapped or retailed Ale for h im; and that the Sign Sign he gave to the said Alexander Mudie to stop bidding, was, when he the Provost took off his Right-hand Glove. 2do, That the said Alexander Ouchterlony, and Agnes Wallace his Spouse, were heard say that the Houle was purchased for them, and that they were obliged to relieve the said Alexan­ der Mudie thereof. 3tio, That the said Agnes Wallace, the Provost’s Wife, at Martinmas 1762, went to Provost John Wallace, Factor for Patrick Spink, to whom the House belonged, and told him, that her Husband could not pay the Price of the House at that Term, and begged he would delay the Payment thereof till Whitsunday thereafter 1763. 4to, That the said Provost Ouchterlony showed the said House to Captain John Read, in order to sell it to the Cap­ tain. 5to, That, at Martinmas 1762, Provost Ouchterlony uplifted from Margaret Wils on, Spouse to James Soutar, 2 l. Scots, as half a Year’s Rent to that Term, and ordered her to flit a- gainst Whits unday thereafter; and also received from Jean Hood 4 l. Scots of Rent, from Janet Doig 3 l. Scots, and or­ dered a Lock and Key for her Door, and from Margaret Stewart 4 l. Scots,— all for Rent of Paid House. 6to, That Provost Ouchterlony employed David Aikenhead, Mason, to lead Stones for building a new Vent in said House, and repairing the Chimney-heads, and that he said the lower Floor with Pavement. 7mo, That Provost Ouchterlony caused Alexander Soutar, Wright, make a new Roof for the House, and caused William Steven, Slater, foure 22 Bolls of Lime for repairing the House, and that the said Alexander Soutar and William Steven looked upon the Provost as their Debitor and Employer, and that their Accounts are still due. 8vo, That Provost Ouchterlony set the said House to Janies Ogilvy and Jean Hood, who retailed Ale for the Provost, and that they entered thereto at Whits unday 1763, and pos- sess ll ft sess the same at this Day, in virtue of the said Set, and that they paid the Rent to him during his Life, but have paid no- Rent since his Death. 9no, That Provost Ouchterlony told John Milne, Wright, that he would give him 5 l. Sterling, and the said new Roof and Lime to the Bargain, if he would free the Provost o f the Purchase of the said House. All which Facts the said Alexander Mudie offered to prove by Witnesses, and craved the Lord Ordinary would allow him a Proof thereof, and of all Facts and Circumstances he might judge material in the Cause. To which Condescendence the following Answers were gi- ven in for the Defenders, viz. the said Alexander Mudie brought a Process at his Instance before the Sheriff o f Forf ar against the Respondents, as representing their deceased Fa­ ther, concluding for Payment of the Price of a House, which he alledged he had by a verbal Commission, from their Fa­ ther, bought at a publick Roup; and, as the Provost was dead, and no Writing of his in trusting the Commission was produced or libelled upon, the Sheriff found any other Proof was incompetent; and the Pursuer having now advo- cated his own Cause, had given in a Condescendence of a Va- riety of Facts, from whence he would infer the Commission and of which Facts he desired a Proof. That the giving of a verbal Commission is only probable,. scripto vel juramento of the Party-giver, is a Point so well esta- blished in the Law of Scotland, that it would be unnecessary to use Arguments to support it; and to allow a Proof of it a- ny other Way, now that the alledged Giver of the Commis- sion is dead, might be attended with most dangerous Conse- quences; nor can there in this Case be any Motives to induce this Court to depart from the known Rules, as Mr. Mudie gets the House, if he pays the Price; and the Respondents are misinformed if he is not in a good Understanding with the Exposer. As As to the Articles now condescended upon by Mr. Mudie, the Respondents are altogether Strangers, John Ouchterlony, the eldest Son and Heir, was abroad, until very lately that he returned after his Father’s Death, and some of the rest were Minors, and others Forisfamiliate. There is one Observation however occurs, and which should weigh in this Cause, that, upon the Supposition that all the Facts which Mr. Mudie condescends on are true, which however can by no means be admitted, whether these Facts are such as would found the Respondents in an Action against Mr. Mudie, to denude himself of the House in question, if he should have made a contrary Alledgeance, and said he purchased for himself? or, are the Facts condescended on the necessary Consequences of the alledged Commission? As to the first it is certain, that, in Law, supposing the whole Facts condescended on to be true, they would not be relevant to found the Respondents in an Action against the Pursuer to denude himself of the House; for, though Mr. Mudie says he was desir ed to purchase the House in question for Provost Ouchterlony, he took care, in the Minutes of Roup, though wrote by himself, not to declare the alledged Trust. although that is a thing, most usually, if not always, done; to excuse that, he says, that Mr. Ouchterlony declined to be known in the Purchase: A most improbable Tale indeed, if the Purchase was made by his Desire, and for his Behoof, as it is alledged, nor was any Declaration of Trust at all given; Mr. Mudie therefore insists in this Action with a very bad Grace, when the Subjects were exposed the 1st 1762, and the Provost was in Life full two Years after, during which Space he had full Time to have got the Provost ’s Oath on his alledged Commission; and, after the Provost ’s Death, the Re­ spondents apprehend, that no Proof ought to be granted, un- less the Facts condescended on were relevant to denude the Pursuer; for, unless the Proof would bind him, it ought not-. to to bind the Defenders, both Parties must be bound by it, or neither. How far the Facts condescended on are the necessary Conse- quences of the alledged Commission, falls next to be consi- dered. The first and second Articles of the Condescendence are the only ones that have any Shadow of Relevancy that Way. The first Article bears, that, after the Roup, the Provost de- clared; that the House in question was purchased for him, in order that he might put one James O gilvy into i t; and the Sign he gave Mr. Mudie to stop bidding was, when he took off his Right-hand Glove. If this Article was to be admitted to Proof, while it could not aff ect Mr. Mudie to oblige him to denude, it would even contradict his own Libel, which bears that Mr. Ouchterlony ever gave the Signal to stop bidding, and the Facts contained in this Article plainly imply that he did; and, as to the alledged Declaration of the Provost and his Wife, both in this and the second Article, it is at best but a nuda emissio verborum, and that, in as general Terms as can be expressed, which, at any rate, could only be probable, s c r i p t o v e l juramento, of the Parties, were they alive, and now that they are both dead, so that the Witnesses cannot be con­ fronted by them, it would be of the most dangerous Tenden­ cy to allow such a Proof as is now demanded. The third Article is perhaps condescended on, because Mr. Ouchterlony is dead, and the Truth cannot be known; it is clearly irrelevant, for the Reasons before assigned, and altoge­ ther incredible, considering that there was a Process to the Effect with the present, raised against the Provost in his own Lifetime, and that he was always in a Condition to have paid double the Price of the Subjects in question; perhaps it is intended, that this Article should be proved by the Expo- ser’s Oath, who is clearly in concert with the Pursuer. The The fourth Article has no Shadow or Relevancy in it, was even such a Proof competent, as many Persons, by Commis sion or otherways, may offer to set or sell Houses, not their own Property. The fifth Article might be true, and yet not be a Conse- quence of the alledged Commission, as the Provost might have taken a Tack of the House from Mr. Mudie, or been under a Communing for one; indeed, to offer a Proof of this Article, without pretending to produce the Provost ’s Receipt, is some- what new; it would be allowing the Tenants to pay their Rents by their own Oaths; one of the Respondents Tutors does indeed remember, that he was present with the Provost in his Lifetime, when one of the Tenants, by the Desire of the Exposer of the Subjects, or of the Pursuer, as is supposed, came and offered the Provost her Rent, and that he declined to take it, as having no Concern with the Subject, which does by no means quadrate with the Pursuer’s Allegations. The six th Article, though proved, would not infer the al- ledged Commisio n; and, as Provost Ouchterlony, in his De­ fences against John Wallace's Pursuit, positively denied that ever he took Possesio n of the Subjec t, repaired it, or set it to new Tenants, the Respondents do the same on the Credit of that Defence, and this will serve as an Answer to the seventh and eighth Articles. As to the ninth Article, a Proof of it is by no means com­ petent, nor is it relevant to infer the Commisio n alledg­ ed. In fine, the Respondents are totally ignorant as to their own private Knowledge of the Facts alledged, having the Mis- fortune to have lost both Father and Mother. It is plain, Provost Ouchterlony lived sufficiently long after the Roup to have got this Matter settled, if the Pursuer had been so dispo- sed; there was no Declaration of Trust given by the Pursuer; it is said he acted at the Roup by a Commission from the Ex­ poser as a white Bonnet, which was incompatible with the alledged alledged Commission from the Respondents Father, and in­ deed he admits that there was a white Bonnet, though he denies that he was the Man; and as there is no Hardship on Mr. Mudie, if he made a good Bargain, in keeping the House, there can be no Ground for departing from the established Rules in allowing a Proof of a verbal Commission, otherways than by Writ or Oath of the alledged Giver. Upon advising this Condescendence and Answers, the Lord. Ordinary, before Answer, granted Warrant for Letters of in­ cident Diligence against Havers, for recovering the Receipts which he averred were granted by Mr. O u c h t e r l o n y, decas, to the Tenants, and refused to allow a Proof by Witnesses o f the other Averments till the Report of the Diligence, and as- signed the 20th of December for reporting; Upon a Representation for the Pursuer, setting forth that it would be very hard on the Tenants, who behoved to be ci­ ted in virtue of the Diligence, to come over and depone be­ fore his Lordship, and expensive on the Part of the Pursuer, and craving a Commission for taking their Oaths at Aber- brothock. The Lord Ordinary granted Commission to any of the Ma~ gistrates of Aberbrothock to take the Oaths of such Havers as should be cited before them, and to transmit the Exhibits a- long with the Oaths to the Clerk to the Process, to be advised by his Lordship. • Accordingly, th e said Alexander Mudie, Pursuer, having ex­ tracted an Act and Commission, and Diligence, the follow­ ing Persons were examined, viz. Margaret Wilson, Spouse to James Soutar, Merchant in A- berbrothock, who being interrogate by the Pursuer, Alexander Mudie, if or not she was Tenant, (her Husband being from home,) of the House in dispute? At what Term she removed? By what Authority she paid her Rent, and to whom? And i f she got any Receipts or Discharges therefor? To which Interrogatories it was objected by the Defenders, that the same could could not be put to the Witness, unless she had, and pre* sently has, Receipts or Discharges ready to produce, under the Hand of the deceased Alexander Ouchterlony, the Defen- £ ders Father, as that is the principal Point admitted to the Pur- suer’s Probation, by the Act and Commission, and no more; and therefore protested against any extraneous Questions be­ ing put to the Witnesses, such as those above taken down; and thereupon took Instruments in the Hands of William Kerr, Writer in Forfar, Notary-publick. To which the said Alexander Mudie made Answer, That the Interrogatories were only such as regarded the Payment of the House-rent, and therefore very competent, that the Defenders Father might have granted Receipts or Discharges to the Tenants, and af­ terwards got these Receipts or Discharges back from them; and, if that was the Case, it was impossible these could be produced, and therefore craved the Commissioner would be pleased to examine the Witness upon the foresaid Interrogato­ ries. The Commisioner having considered the Objection and Answer, admitted the Witness, reserving the Import of the Objection and Answer to the Consideration of the Court of Session. And the said Margaret Wilson being examined, depones, That, she, in her Husband’s Absence, was Tenant, and pos- sessed the House in dispute, and removed therefrom at Whit- s unday 1763; that she paid the deceased Provost Alexander Ouchterlony three Shillings and four Pence Sterling, as her Part of half a Year’s Rent, but got no Receipt or Discharge therefor. Margaret Stewart, Residenter in Aberbrothock, to whom the same Interrogatories were put as were put to the preceeding Witness, and the same Objections and Answers, as in the Cafe of the first Witness, were repeated, the Commissioner admitted the Witness, referring the Consideration of the Ob­ jections and Answers to the Lords of Session; and the said Margaret Stewart being interrogate, depones, That she pos- sessed sessed a Part of the House in d ispute, and removed there­ from at Whitsunday 1763. Depones, that she paid four Pounds Scots, as half a Year’s Rent, to Mrs.Ouchterlony, whom she seed deliver the same to the deceased Provost Ouchterlony her Husband; that, some Time afterwards, Mrs. Ouchterlony sent for the Deponent, and delivered her back the said four Pounds Scots; and, upon the 25th of 1763, she the Depo­ nent paid thirteen Shillings and four Pence sentlyhae a s a whole Year's Rent of the Part of the House possessed by her, to John Holand, then one of the Magistrates of and produced his Receipt for the same; and further depones that she never got any Receipt from Provost Ouchterlo- ny. J ean Hod, Relict of John Torn, Mason in Parkhead of Seaton, to whom the same Interrogatories were put, as were put to Margaret Wilson,the first Witness; and the same Ob­ jections and Answers, as in the Case of the said first Witness were repeated. The Commissioner admitted the Witness, and referred the Consideration of the Objection and Answer to the Lords of Sesion; and the said Jean Hood being- interro­ gate, depones, That she entered to, and possessed a Part of the House in dispute at Whits unday 1762, and removed there­ from at Whits unday 1764. Depones, that she paid four Pounds Scots, as half a Year’s Rent, of her Part o f the House to the deceased Provost Onchterlony, but got no Receipt there­ for. Depones, that, some Time afterwards, the Provost paid her back the said four Pounds; and that thereafter she paid, upon the 25th of May 1763, thirteen Shillings and four Pence, as a full Year's Rent of her Part of said House to Baillie Holland, and produced his Receipt for the same. Janet Doig, Relict of David Christe Sailor in Aberbrothock, to whom the same Interrogatories were put, as were put to Margaret Wils on, the first Witness, and the same Objections and Answers as in the Case of the said first Witness were re- ' ' • peated, peated, the Commissioner admitted the Witness, referring the Consideration of the Objection and Answers to the Lords of Session; and the said Janet Doig being examined, de- pones, That she entered to, and possessed a Part of the House in question, at Whitsunday,1762, and removed therefrom at Whits unday 1 763. Depones, That she paid three Shillings and four Pence Sterling, in Part-payment of said Year’s Rent, to Mrs. Ochterlony: That some Time afterwards she sent for the Deponent, and paid her back the said three Shillings and four Pence Sterling, for which she never got any Receipt. De­ pones, That she paid, upon the 25th of May 1763, eight. Shillings, and six Pence Sterling of Rent for said House to Baillie Holland, and produced his receipt for the same. And which three Receipts, exhibited by the said Witnesses, are now in Process. The Lord Ordinary having considered the foregoing Re­ port, with the Condescendence, Answers, and other Proceed­ ings in this Cause, found, “ That the Allegations set forth by the Pursuer, which he offered to prove by Witnesses, now that he had failed in recovering the written Docu­ ments founded upon by him, could not be allowed to go to Proof, by Witnesses, and assoilzied the Defenders and decerned.” The Pursuer complained of this Interlocutor by a Repre- sentation to the Lord Ordinary; and his Lordship, upon con- sidering the Representation, “ found the Circumstances, in this Case offered to be proved, though strong, are not suf- ficient, in Law, to subject the Defenders, adhered to the former Interlocutor, and refused the Desire of this Repre- sentation.” Against this Interlocutor the s aid Alexander Mudie having applied to the Lords by Petition, “ they, upon advising there­ of, with Answers for the Defenders, remitted the same to the Lord Ordinary, with Power to his Lordship to allow a Proof Proof before Answer, and to do in the Premisses as he should see Cause.” Accordingly, at a Calling before the Lord Ordinary, his Lordship, “ before Answer, allowed the said Alexander Mudie, Pursuer, to prove, prout de jure, the several Facts, as con­ tained in the Condescendence given in by him, and all other Facts and Circumstances that may be thought mate­ rial in the Cause; and allowed the Defenders a conjunct Probation thereanent, and granted Commission and Dili- gence.”— The Pursuer, having accordingly extracted an A ct and Commission, and Diligence, adduced the following Proof, viz. Andrew Dykes, Officer of Excise in Aberbrothock, married, aged forty Years and upwards, solemnly sworn, examined and interrogate, if or not the deceased Provost Ochterlony, immediately after the Sale of the House in dispute, told the Deponent, that he had purchased it on purpose to put one James Ogilvy a Tapper into it? depones affirmative to the question. Depones, That some Time thereafter, at a Com­ muning the Deponent had with Provost Ochtcrlony, the De­ ponent asked him what Mr. Mudie, the Pursuer of this Pro- cess, was to make of the above mentioned House? To which Provost Ochterlony answered, that Mr. Mudie had bought it for his Behoof, and added, that he was to have given a Sig­ nal, somehow, with his Glove, when he was to stop, by pulling it off or on his Hand, or putting it on the Head of a Staff, but which of the Ways the Deponent does not re- member. Causa scientiae patet. John Milne, late Deacon o f the Wright-trade of Aberbro- thock, married, aged forty Years and upwards, depones, That some Time after the Sale of the House in dispute, the Deponent had occasion to be with Provost Ochtcrlony in his own House, talking about the House purchased at the Roup by by Mr. Mudie, when the Provost said to the Deponent, he would give any Person five Pounds to take it off his Hand: On which the Deponent asked, what would he do with the J a new Roof? To which Provost Ochterlony answered, they should have that likewise. And being interrogate for the Defenders, If or not he heard Provost Ochterlony say, Mr. Mudie had bought the House for his, the Provost’s, Behoof, or, if or not the Provost offered the House to the deponent? depones negative to both the Interrogatories. Further de­ pones, That when the Purchasers of the above and some other Houses were signing their several Bodes, he, the Deponent, heard Mr. Mudie's Father ask him, if the House was for himself? To which Mr. Mudie answered, it was not. His Father then asked him, for whom it was? He, the Pursuer, answered, he did not know who it was for. Caus a scientiae patet. James Ogilvy Weaver in Aberbrothock, married, aged thir­ ty Years and upwards, depones, That, for some Time pre ceeding Provost Ochterlony's Death, the Deponent was one of the Tappers, and retailed Ale for him, and has continued retailing Ale, since his Decease, for Mr. Ochterlony, his Son, one of the Defenders; but that, in Provost Ochterlony’s Life­ time, and since his Decease, he retailed Ale for others, as well as from him, and now from his Son. Depones, That the Deponent is present Tenant and Possessor of the House in dispute; and that some Time betwixt the Sale and the Term of Whits unday thereafter, the Deponent went up to Provost Ochterlony's, on purpose to take a Lease of it from him: That the Deponent insisted with the Provost to take Earnest from him, on the Rent he had offered, and accordingly, he had a Halfpenny of the Deponent’s in his Hand; but as they could not agree on the Sum to be paid for Rent, he threw it down on the Table, and no Bargain was concluded that Night: That soon after this, the Deponents Wife went to Mrs Mrs. Ochterlony, and with her concluded the Bargain 0f a Tack on the House. Depones, That there was a new Roof made for the foresaid Houle, by Alexander Soutar Wright: That there was a Quantity of Lime soured for it, and Stones prepared for repairing it, at least, the Roof was made, and these Materials got, which the Deponent thinks, according to the best of his Knowledge, were intended for that very House, but of this cannot be absolutely certain, and that the Roof lies knit in the Garret of it. Being interrogate for the Defenders, depones, some Time before Whits unday the Depo­ nent again went to Provost Ochterlony concerning this Tack o f the House, when the Provost desired him to do as he pleased, for that he, the Provost, would have nothing to do with it, and further desired him to go to Mr. Mudie and talk with Him about the Tack, for that, he, Provost, Ochterlony said, he had not fouled Paper about it, and would have no Concern with it; and the Deponent's Wife coming to Mr. Mudie, he gave her the same Answer, that she might go where she pleased, for that he would have nothing to do in the Mat­ ter: That then the Deponent, and his Wife, went to Mrs. Soutar, who told them, she had a Tack, of the House from Thomas Strachan, and if the Deponent was to come there, she would yield the Possession of as much as would serve him, and if he was not coming there, she would, continue to pos- sess herself, at same time adding, that the Rent it paid for­ merly was known, and it should pay no more for one Year; and that the Deponent accordingly entered at the Term of Whits unday. Depones, That he, the Deponent,, never paid any Rent to Prove o s t Ochterlony, nor to Mr. Mudie or Mrs. Soutar; but that one Mrs. Inglis pretended she had a Claim on that House for about fifty Pound Sterling, and that no body could possess there without paying her, and this Mrs, Inglis being Debitor to the Deponent in three Pounds Sterling, she gave him her Acceptance for that Sum, which, she said, would would be allowed him in Part of his Rent. Caus a scientiae p a t e t Margaret Wilson, Relict of James Sutar, Merchant in Aber- brothock, aged thirty and upwards, depones, t hat she was Tenant of the House in dispute, when the same was sold, and removed therefrom at the Term of Whits unday after the Sale; and that for the Half Year preceeding Whits unday, she paid the Rent to the foresaid Provost Ouchterlony, being three Shil- lings and four Pence Sterling. Depones, that the Deponent was ordered to remove from the House against Whitsunday by Provost and Mrs. Ouchterlonies, and in consequence of their Order, removed accordingly. Depones, that at the Term of Whits unday was a Year, after her Removal, the De­ ponent went to Provost Ouchterlony, asking back the Money she had formerly given him, as she heard he was giving back the Rents to the rest of the Tenants; but that the Provost told her, he had laid a low Cellar in the House, and could not part with her Money, until he got Redress for doing so. Caus a s cientiae patet. Margaret Stewart, Residenter in Aberbrothock, unmarried, aged twenty and upwards, depones, That some t ime before the Sale of the House in question, the Deponent took a Lease of one of the Rooms from Mrs. Sutar, the preceeding Wit- ness, in Sub-tack for one Year, and entered thereto at the Whits unday after the same was sold: That she paid the first Half-year’s Rent, from Whits unday to Martinmas, to Mrs. Ouchterlony, in Presence of the Provost, her Husband, and that some time afterwards, Provost Ouchterlony, or his Wife, sent for the Deponent, and gave her the Rent back, when she went and consigned it in Baillie Holland's Hands, as one of the then present Magistrates, whose Receipt she got for the Money. Causa scientiae patet. Ja n et Janet D oig, R elict o f D avid Christie, Mariner in Aberbro- thock, aged forty and upwards, depones, That she possesssed the House in question from Whitsunday fter the sale, to he Term of Whitsunday thereafter, and that she took same from Mrs Soutar in Sub-tack some time prior to the Sale: That the House was whitened by William Spink, by Mrs. Ouchter- lony's Order, immediately before the Deponent entered, and that she paid Half a Year's Rent to Mrs. Ouchterlony, in Pre- sence of Mrs. Johnston, one of the Defenders: That some time afterwards, Provost Ouchterlony sent for the Deponent, and gave her the Rent back, when she went and consigned it in Baillie Holland's Hand, in the same way as the preceeding Witness did. Causa scientiae patet. Jean Hod, Relict of John Torn, in Ground of Seatown, aged fifty and upwards, depones, That ihe took a Part of the House in question from Mrs. Soutar, prior to the same being sold: That she entered at Whits unday 1762, being the Whit- sunday after the Sale, and continued to possess for two Years: That the Deponent went and took her Part of the House for the second Year, from Provost and Mrs. Ouchterlonies: That, at the Time of taking this second Year, the Provost and his Wife told the Deponent, that the House was to be repaired, and the Rent behoved to be heightened, but that no Repair was made on her Part, and that she has never yet paid her Rent for this last Year, at least got same back. Depones, that she consigned her first Year’s Rent in Baillie Rolland's Hand, in the same Way as the two preceeding Witnesses, and got the Baillie’s Receipt, and that she paid Provost Ouchterlo­ ny one Half of the second Year’s Rent, from Whits unday to Martinmas, but afterwards got the same returned her by the Provost. Causa scientiae patet. William /William Steven, Slater in Aberbrothock, married, aged forty and upwards, depones, That soon after the Sale of the House in dispute, the Deponent was employed by Provost and Mrs. Ouchterlony, to soure and prepare a Quantity of Lime, on pur- pole for slating the Roof, and harling the Walls of i t; and that the Deponent accordingly laid down and soured one and twenty Bolls before the House, which, after lying there for some Time, was sold by Provost Ouchterlony to Francis Soutar, at least seventeen Bolls thereof, and that Part of the Lime was applied for setting the Walls within the House. De­ pones, that Alexander Soutar, Wright, made a Roof to be laid on the Houle, which the Deponent assisted to lay up in the Garret, and that the Provost ordered the Deponent to slate the Roof; and it was entirely owing to him, and his Partners, that the same was not done: That the Deponent, much about this Time, bought one thousand Nails, in order for putting up the Roof, and which Provost Ouchterlony paid; but that next Year the Provost told him he was not to put on the Roof: on which the Provost delivered the Nails to the Deponent, to dispose of them to the most advantage, and they were given to Mr. Johnston at Cairntovan, one of the Defenders, and the Deponent gave the Price of them to Pro­ vost Ouchterlony. Depones, that it consists with the Depo­ nent’s Knowledge, that there were Stones hewn and pre­ pared by David Aikenhead, for a Chimney and Chimney- head to the House in dispute, and that the Deponent heard Provost Ouchterlony order David Aikenhead to provide them. Caus a scientiae patet. James Hampton, Gardener at Aberbrothock, married, aged forty and upwards, depones, That some Time after the House in dispute was rouped, Mrs. Ouchterlony offered to sell the same to the Deponent, but which he had no Use for, and so did not choose to take it. Causa scientiae patet. Alexander Alexander Soutar, Wright in Aberbrothock, married, aged thirty Years, or thereby, depones, That some Time after the House in question was rouped, the Deponent was employed either by Provost Ouchterlony or his Wife, which of them he does not now exactly remember, to make a Roof for the House, and which he made accordingly, and put same up in the Garret, but is not yet laid on: That he, the Deponent, was ordered likeways to make a Window for the Stair-case by Mrs. Ouchterlony, and that he made the Window in con- sequence, but the same was not called for, nor used to that Hosue: That it consists with the Deponent’s Knowledge, Mrs. Ouchterlony employed William Steven and some others to assist the Deponent in laying up the Roof in the Garret, and that the Deponent has as yet received no Payment for his Trouble in these Matters. Caus a scientiae patet. D avid Aikenhead, Mason in Aberbrothock, married, aged fifty Years and upwards, depones, That some Time after the- Hosue in question was rouped, the Deponent was employed by Provost and Mrs. Ouchterlonies, to hew and prepare some Stones for a Chimney and Chimney-head, which he provided and prepared accordingly, but they were never used, and also was employed by Mrs. Ouchterlony to lay some Flag- stones in one of the low Rooms of the Hosue, and which he laid accordingly, and was paid for his Trouble in doing so by Mrs. Ouchterlony; and after the Stones for the Chimney and Chimney-head had lien ready for some Time, the Pro­ vost desired him to take them away, and make the most of them he could in consequence whereof, he took them all away, excepting one or two that still lie at the House-side. Causa scientiae patet. Alexander Keith, late Provost of Aberbrothock, unmarried, aged forty Years and upwards, depones, That some Time after after the Sale of the before mentioned House, the Deponent called up Provost Ochterlony, and as a friend, desired him to make up the Dispute betwixt him and Mr. Mudie, and that at this time the Provost acknowledged, that Mr. Mudie had bought the House; but said, that notwith- standing of this, yet, as the Writs were not made up, and delivered in due Time, according to the Articles of the Roup, he, the Provost, would not hold the Bargain. And being interrogate for the Defenders, depones, That he, the Deponent, never heard Provost Ochterlony acknow­ ledge, that Mr. Mudie had bought the House for his, the Provost ’s Behoof. Caus a s c i e n t i a e p a t e t. Robert Colvill of Burntown, unmarried, aged forty Years and upwards, against the admitting of which Witness, Mr. John Ochterlony for the Defenders objected, That Mr. Colvill had always been very favourable to Mr. Mudie's Side of the Plea, and had frequently expressed himself, that he would wish Mr. Mudie to gain; and, when any Interlocutor came out against him, said, he was sorry for i t; and that therefore he could not be received. To which Mr. Mudie answered, that Burntow n was in closer Connexion with the Defenders, and particularly Mrs.Johnston, one of the Insti- gators of the present Process; and whatever he had laid up­ on any Sentence past therein, he, Mr. Mudie, knew nothing about it, nor never had any Words, pro or con, with Burn- tow n on the Subject; and therefore craved, the Commissioner would admit the Witness. The Commissioner having heard the Objection and Answer, and considering his Powers, only to take down the Witnesses Depositions, not to judge of the Validity of any Objection against them, in the mean time admitted Mr. Colvill, reserving to the Lords the Consideration of the Objection, and to lay such Weight on his Deposition, as their Lordships may think proper. Accordingly, Accordingly, the said Robert C o lv ill depones, T hat th e Deponent has heard Provost Ochterlony say, that the House and Yard in dispute, belonging to Baillie Spink's Heirs, exposed to Sale by Provost John W allace for behoof of the Creditors, that Provost Ochterlony gave Commission to Mr. Mudie, the Pursuer, to purchase the said House for him. At the Term when the House was to be paid, Mrs. Och- terlony told the Deponent, as he was the principal Credi­ tor, that she had given away all her Money, and that they could not pay the House till next T erm. When the next Term came, Provost Ochterlony told the Deponent, that he would have nothing to do with the House, as he had got no Rights; so that this was delayed till some Time after­ wards; and when the Rights came, Provost John Wallace gave him a Summons to appear before the Court at For­ far to pay the House, it seems Provost Ochterlony got free, as the Rights were not offered in Time. Depones, That at frequent Communings the Deponent has had with the Provost and Mrs. Ochterlonies, he has heard them say, that, were Mr. Mudie obliged to hold the House, he should be no Loser. Depones, That the House when sold was a lo- sing Subject; that Provost Wallace could be nowise bene­ fited by the Sale, but as a Creditor, and that the Debt ow­ ing him was but to a small Extent; nor could the Pur­ suer be a Gainer by it, but as being employed in the Course of his Business, because the Deponent saw the whole L ist of Debts and the Division, and that after the Debts were paid, the Residue was given to Mrs. Strachan and Mrs. Spink, the Proprietor’s two Aunts. Causa scientiae pate. James Spink, Shipmaster in Aberbrothock, married, aged forty Years and upwards, depones, That some Time after the House in dispute was sold, Mrs. Ouchterlony came down to the i d the Deponent, and carried him along with her to Janies Ogil- vy's House, then the Deponent’s Tenant, and who tapped Ale for Mrs. Ouchterlony, presently Tenant in the House in question, and afterwards desired him to go along with her and see the House which the Provost had bought, which was the before mentioned House; and accordingly they went and lookt through i t; and Mrs. Ouchterlony then gave some Di­ rections to the Tenants, but what they were the Deponent does not now remember. Causa scientiae patet. There is produced with the Pursuer’s Proof a missive Let­ ter from Captain John Read to the said Alexander Mudie, Pursuer er, dated at Dundee the 12th July 1766, of the following Te­ nor: “ Sir, I only this Day received yours of the 10th June: I suppose you meant July. It will be impossible for me to attend on Monday; but I remember well that Provost Ouchterlony offered me that House for my Mate, Alexander Law, for 60 l. Sterling. This is all I know, or could say on that Subject, was I prefent.—I am respectfully, &c. Item, Extract Factory, granted by Patrick Spink, lawful Son to the deceased Patrick Spink, Ship-master in Abero- thock, and Grandson to the deceased John Spink, also Ship- master there, to and in favours of John Wallace, Merchant, and late Provost of Aberbrothock, his Factor and Trustee, im- powering him to make up Titles in his Person, to all the Heritage and heritable Subjects which belonged to his said deceased Father and Grandfather, lying within the Burgh of Aberbrothock, and thereafter to sell and dispose thereupon, either by publick Roup or private Sale, as he should judge most proper; and obliging himself to grant Dispositions and Conveyances, and to deliver them to the Purchasers with the Progress of Writs, as loon as he should be desired and re­ quired by his said Factor and Trustee so to do; which Facto- ry ry is dated the 13th, and registrate in the Burrow-court Books of Aberbrothock the 24th of August 1 761. With the principal Conditions of Sale of the Tenements and Yards lying in Aberbrothock, belonging to the said Spink, and exposed to Sale by publick Roup before the Bail- lies of Aberbrothock, by the said John Wallace, as Trustee foresaid, upon the 1st April 1762, and Minutes of Roup, and Offers thereon, bearing the said Alexander Mudie, Pursu- er, to have purchased the Tenement and Yard, and others, possessed by James Soutar, at the foresaid Price of sixty-five Pounds Sterling. With all which Great Avisandum was made, and the Term circumduced againft the Defenders, upon the 23d July 1766; and which the Lord Preparer re­ mits to the Lords at advisin g. (Signed) A L E X. F R A S E R.