Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Frederick Carmichael
v.
Thomas Gourlay of Kincraig

Date: 22 January 1629

Click here to view a pdf copy of this documet : PDF Copy

In an action pursued by Mr Frederick Carmichael against Thomas Gourlay of Kincraig, as lawfully charged to enter heir to his grandfather, there was a day taken by the defender to renounce; and, in termino, he produceth his renunciation. Compeared Alexander Cornfat, creditor to the said umquhile grandfather, who, being admitted for his interest, alleged, that the defender cannot be heard to renounce in favours of the pursuer, and in his prejudice, who was a lawful creditor, because the said Alexander had action depending against the said defender as lawfully charged to enter heir, and also as behaving himself as heir; and it was not lawful to the defender, by offering a voluntary renunciation, to prefer the pursuer to any other creditor, to the effect that the pursuer might obtain sentence of adjudication first; neither was it lawful to the pursuer to accept a renunciation from the defender by collusion; because he offered him to prove that the pursuer omitteth a competent reply, which the said Alexander allegeth by way of exception, viz. That the defender cannot be heard to renounce:—1mo. Because he has curators, and they have not subscribed the renunciation produced: 2do. He has behaved himself as heir to his grandfather by intromission with his heirship-goods: 3tio. The gift of the ward of the half lands of Kincraig, holding of the Laird of Lundie, is granted to the defender himself, or the donator for his behoof. Answered, This creditor could not stay the accepting of this renunciation, because the pursuer will accept it with his hazard, and let Alexander go on in his cause as he pleases. The Lords repelled all these allegeances proponed by Alexander, and would not stop the pursuer's action, who had used greatest diligence.

Page 140.