Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Alexander Guthrie
v.
The Tenants of Frier-corse

Date: 1 March 1636

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Mr Alexander Guthrie, being infeft in the miln of Frier-corse and astricted multures thereof; and alleging, that there was a decreet obtained at the instance of Mr Samuel Kirkpatrick, author to him in his right, against the tenants of Frier-corse, finding them to be astricted to the said miln, and decerning them to pay, in time to come, such a particular quantity of astriction: upon this decreet the said Mr Alexander raises letters of horning, and charges the said tenants to pay the quantity of the multure for their corns abstracted divers years bypast, since the said decreet, viz. 1632, 1633, 1634, and 1635 years. And the letters being suspended, as given against all form and practique, and against the Act of Parliament, which prohibits such summary charges of horning to be generally executed for any special quantity, until the time that particular parties be summoned for that effect; likeas in these cases there is no other form allowed but to pursue by ordinary action and pursuit, for abstracted multures, as ever has been observed in all times before; and further, this pursuer can never claim the benefit of the said sentence, specially so summarily to charge therefore; because it is not obtained at his own instance, and he is neither made assignee thereto by the obtainer thereof, nor has he obtained it transferred in him as successor in the right of the same, as heritor of the lands. The reason was not respected, and the process sustained at the same pursuer's instance; but this charge was sustained as converted into a pursuit, and as if the same had been moved, for payment of abstracted multures; which, as so converted, the Lords ordained the defenders to answer in this same process of suspension, in respect the charger referred the quantity to the defender's own oath; the Lords found, and declared the cautioner in the suspension to be freed of his becoming caution in the suspension, sicklike as if he never had been acted, and found no necessity that the decreet should be transferred, or that the pursuer should have been assigned thereto.

Scot, Clerk.

Vid. 29th July 1634, L. Innerweik; and for the last part, 25th July 1626, James Stuart, and the cases there.

Page 798.