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In an action of special declarator betwixt Balfour and Futhie, the Lords repelled an exception founded upon the diligence of Bysack against Gund, who was party contractor, whom he had put to the horn for not fulfilling of the contract, and found that the donatar, notwithstanding thereof, might crave the price of the land.
November 12.
In a special declarator, pursued by Alexander Balfour donatar to the escheat of James Futhie of Gund contra Henry Futhie of Bysack; the Lords refused to cause the donatar to produce the horning.
Fol. Dic. v. 1. p. 137. Kerse, MS. fol. 228.*** Haddington reports the same case:
January 11.—Balfour, donatar to the escheat of James Futhie of Gund, having obtained a general declarator, and thereafter seeking a particular declarator for 2100 merks against Henry Futhie of Bysak, the Lords fand, that the pursuer could not be compelled to produce in the particular declarator standing, notwithstanding that the defender alleged the practic between Dempster and Ogilvy, and divers other practics, where the donatar was compelled to produce his horning in the particular declarator after a general.
