Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER LORD FOUNTAINHALL.
James Fraser, v. Alexander Mackenzie of Suddie
Date: 27 November 1663
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Kenneth Mackenzie of Gilliechrist, in anno 1612, in one bond, grants him to have received 500 merks; in another, L.400, from James Fraser, burgess in Inverness. He dies; whereon James Fraser, his oy, and as heir and executor dative decerned and confirmed to him, charges Alexander Mackenzie of Suddie, son to Kenneth, for paying these his father's debts, as heir to his father; and obtains decreet against him before the commissioners, in anno 1658; whereon he raises letters of horning and caption, and incarcerates Suddie in the prison of Invernes. The decreet, with all that followed thereupon, he suspends: 1mo, Because surreptitious, being for null defence, and not compearance, he never having been made warned thereto; and if any execution, bearing him to have been lawfully warned, be produced, he offers him civilly and lawfully to improve the same, per testes insertos, et omni alio modo quo de jure. 2do, If he had been warned, as he was not, then he would have alleged, as he does now, that no action could be sustained upon the said bonds, because prescribed, not being followed within forty years, conform to the 28th Act of the 5th Parl., the 54th Act of the 7th Parl, of King James the III. 3tio, As to the bond bearing 500 merks, the charge was most malicious, seeing the said bond was satisfied by his father; as appears by the discharge thereof, granted to him by the pursuer's goodsire. 4to, The said decreet is given upon a false ground, supposing him to be heir served or retoured to his father, which he never was; neither can any of the passive titles be inferred (as the summons concludes none,) against him; yea, he is even ready to purge himself, and to renounce, re integra, all benefit might accrue to him by being heir to his father, in favours of the charger. Which exceptions, as they would have been relevant in prima instantia, to stop the obtaining of that decreet, so now being proposed in secunda instantia, must be relevant to elide the same; especially considering, that on the change of the government, he has a summons of review depending at his instance, for revising the said decreet, conform to an Act of Sederunt of the Lords; as also process of reduction thereof. As to his being denounced to the horn, the truth is, he was stolen thereto; they executing the charge at Cessock, one of his houses indeed, but not his place of residence; and so knew nothing of it till he was incarcerated. Then he summons James Fraser, charger, to compear before the Lords of Council and Session, and to bring with him the said decreet, proceeding on a null and prescribed bond, without any lawful citation; to hear and see it, and all that has followed thereon, suspended simpliciter. The day being come, the charger's procurators are content to hold the copy of the suspension delivered to them for the principal: and to his reasons of suspension, they opposed, first, the decreet called for, ordaining him to make payment of the said sum of L.400 to the charger; then, for instructing his own title to pursue, he produced his goodsire's testament, wherein he is confirmed executor dative; then, for proving the suspender to be heir to his father, who was the debitor contractor, produces a minute of seasine under the subscription of William Lauder, notary thereto, in anno 1636, conform to a precept of the Earl of Seaforth to that effect, whereby this suspender is infeft in the lands and others pertaining to his father, as heir to him. This minute is under the hand of Thomas Williamsone, keeper of the registers and minute books within the Sheriffdom of Invernes.
Which answers to the forementioned reasons of suspension being well and ripely considered by the Lords, they found the letters orderly proceeded, and ordained the suspender to pay to the charger the said sum of L.400; assoilyie him from the bond of 500 merks, because of his discharge produced; decern him finally to pay to the charger L.50, for expences, as modified by them, and really debursed by the charger, in obtaining his decreet and defending.
For the suspender, Act. Mr. George Norvell and Sir George M'Kenzie.Alt. Sir George Lockart, and Mr. Robert Trotter.
Signet MS. No. 11. folio 4.
