Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Andrew Fletcher and David Hunter
v.
-

Date: 15 March 1631

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Andrew Fletcher and David Hunter, customers, pursue one who had taken the gift of umquhile Isobel Kid's escheat upon a horning, whereby she was denounced to the horn upon general letters raised at the said customers' instance, for not-payment of his custom for certain years, extending to such a sum contained in the execution of the charge; and, seeing the defender had taken her escheat upon this horning, he ought to pay the debt for the which she was denounced rebel. It was alleged, The horning was null, because she was charged by general letters, whereupon no denunciation could follow, conform to the Act of Parliament. 2do. She was wrongously charged for the customs of the years contained in the charge, because she was in these years married, and could not be summarily charged, after her husband's decease, for a debt due to be paid by her husband. To the which it was replied, That this party could not object this nullity, seeing he had taken the gift of her escheat upon the same horning, and, by virtue thereof, has intromitted with her goods and gear, and by no other title. To the which it was duplied, That the horning being null, could never give him right to intromit with the goods, nor make him liable to pay the debt contained in the horning; but he might renounce all benefit of that escheat. The Lords repelled the exception and duply, in respect of the reply; and specially of his intromission by virtue of the gift,—the pursuer finding caution to make this debt acclaimed by them furthcoming to all parties having interest.

This action was decided by one vote.

Page 88.