A fact which could not be ascertained in the first suspension, admitted to discussion in a second.
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One Hume having acquired the right of the life-rent of Bowmaker, by his annual rebellion, and after general declarator, having obtained decreet of removing against him; which being suspended upon a reason, viz. That the donatar, the time of the gift granting, had granted a bond to the Earl of Mar then Thesaurer, to use the same by his advice, for the good of the rebel's creditors; and for not verifying of this reason, the letters were found orderly proceeded; and thereafter a new suspension being raised upon this same reason, and the bond, with the Earl of Mar's declaration, how the donatar should use his gift, being produced for verifying thereof; it was questioned by the donatar, that after decreet upon the first suspension, against the same reason for not verifying thereof, the verification now ought not to be respected, nor received, otherwise there would be no end of plea; for if, at the second suspension, the verification were receivable, it might be as well received in the third or fourth, and so in infinitum; and if decreet were given for not probation of an exception admitted, that decreet could never be taken away by production of any probation thereafter, in any second instance, far less ought it to be received by suspension after decreet once given, and thereafter another decreet given upon suspension, finding the letters orderly proceeded, for not verification. The Lords notwithstanding found, that they would receive the verification in this second suspension, albeit it was not produced in the first, especially seeing it was not the suspender's own bond, but was made by a third person to the Thesaurer, and that it depended upon the Thesaurer's declaration, which was only made since the first suspension was discussed, and which is not easy to the parties always to obtain, but must be attended while he pleased to give it; and the Lords found this declaration now produced, made by the Earl of Mar, being then Thesaurer, ought not to be respected, seeing the back bond was granted to the Earl of Mar, being then Thesaurer, and he ceased to be in that office the time of the declaration, and long before, and so that it was not proper to him to declare, as Earl of Mar, how that gift should be used, by virtue of the back bond, the power whereof to declare was only proper to the Thesaurer, being in office for the time, and not to the person receiver of the bond, if he should be out of office when he declared; for the power of such bonds followed the suecessors of the office, and was not otherwise inherent in the person of the receiver being become a private person; and therefore the Lords yet assigned a competent day to the suspender, to produce the present Thesaurer's declaration, anent the said back-bond and escheat, that thereafter the Lords might consider thereof, and discuss the reason of suspension, and verification thereof.
