Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Anna Cranstoune
v.
Alexander Dowglas

Date: 28 November 1649

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In the process of suspension pursued by Anna Cranstoune against Alexander Dowglas, it was found, That she might yet produce a renunciation, for freeing her from personal execution, because minor, and might be prejudged; but, that being done in the year 1647, it was opposed, That they did not seek personal execution; but that,—in respect of her fraudful collusion, to the behoof of the umquhile Lord of Cranstoune, who was as her procurator, with whom she stayed, was entertained, who did not only pay her tocher, but also obliged him, in her contract of marriage, to relieve her husband and her of all decreets and process against her, as lawfully charged to enter heir;—the decreet at Alexander Dowglas his instance might stand against her: seeing she, at least her procurators ad lites, did postpone the said Alexander most fraudulently, to the said Lord of Cranstoune; who, albeit the said Alexander had raised summons of registration before him, yet obtained decreet of registration, without contradiction, cognitionis causa, she producing a renunciation to the said Lord, (he, in the meantime, trysting with the said Alexander,) and so got adjudication before the said Alexander urged the calling of his process: and then a day was taken, one after another, to delay the said Alexander: where the said Lord went on smoothly, if Dicksone in Beill had not stopped his adjudication from the 10th of January to March; before the which time the said Alexander was stopped, by delays, to get this his decreet, which is now craved to be suspended. Et minoribus deceptis non decipientibus est subveniendum. Et licet in contractibus Us subveniatur, non tamen ita statuendum in judiciis, si fuerint contumaces, cum habeant actionem contra tutores et curatores, qui defendere debebant, præsertim cum hic nihil sit prejudicii aut incommodi in minorem redundaturum; for they object, I know not what, a kind of lesion complemental, through ingratitude, in behalf of my Lord. There were some laws cited, namely, L. Verum 11. & 3. et seq. ff. de Minor: L. in causa; 13. L. non omnia. 44. ff. eod. et tit. qui et adver. Cod. But the Lords would have all the summonses of those decreets produced, that, by the dates, and the diets of calling every one of them, the collusion might be detected; and desired some of the number to meet upon it, and see if they could agree the business. And here, I thought, that not only the Lords, but the advocates, [were] mistaken, in so far as the pursuers thought the old interlocutor pronounced in their favours; neither did the defenders think of it otherwise; where, by the contrary, it is clear that the Lords receiving the renunciation hoc loco, that no personal execution should pass against this alleged minor, did establish the decreet for comprising hæreditatem paternam: as, in adjudications, where it is renounced debito tempore, the creditor comes contra jacentem defuncti hæereditatem: for else that restriction anent personal execution were superfluously et inutiliter adjecta. Neither were it yet justly adjected, except her minority, the time of the renunciation, were proven;—so that all the former dispute anent her collusion with my Lord Cranstoune, (which is clear by his employing of the advocates, and preferring or retarding her processes respectivé,) ought to come in when the dispute shall be betwixt my Lord Cranstoune and Alexander Dowglas.

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