Scottish Court of Session Decisions

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

Sir William Dicke
v.
Keir

Date: 11 January 1650

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[See page 434.]

In the suspension by Sir William Dicke against Keir, the Lords adhered to their interlocutor, finding the reason of compensation not relevant, not being de liquido in liquidum: notwithstanding of the letters of acceptance by umquhile James Houstoun, to the said Sir Wiliiam, produced, bearing a liquid sum; and notwithstanding of a decreet, at Major Lumsdene's instance, against the said Sir William, for a liquid sum: because umquhile Patrick Keir was never constituted debtor by an action, and decreet thereon, of count, reckoning, and payment; as it is in the last law, Cod. de Compen. and the third law, ff. Tutel. et ration, distra. Neither would they give retention while the action of count and reckoning might be discussed: but found the letters orderly proceeded; the said Patrick Keir, charger, and person substituted in the father's bond, finding caution to make the sum charged for forthcoming to the said Sir William, prout de jure. And my mind was, that if it had been disputed, that bond could not be liable to any sentence given against the father, suppose he had the uplifting of the sum during his lifetime; because that sum was provided, by the substitution, to umquhile Patrick Keir his child, many years before the said Patrick married umquhile James Houstoune's sister, and long before the said James died, and his said sister fell to be heir-portioner to him;—the said umquhile Patrick, after his first wife's death, providing their child, who is now charged, to the sum charged for, as lawful administrator to him; wherein could be no presumption of fraud,—this alleged debt proceeding upon the count and reckoning not being in rerum natura many years thereafter, as if the father had taken bond for a sum to himself in liferent, and to his son in fee: Neither could Sir William be ignorant how he had given this bond.

Page 154.