Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Alexander Balnaves, Minister of Tippermuire, v. George Murray of Tippermuire
Date: 5 December 1663
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In anno 1669, there is a contract of excambion past betwixt George Murray of Tibbermuire, and Mr. Alexander Balnaves minister there: whereby George binds and obliges him to possess the minister in the yearly duty and avail of eight acres of land; and the minister obliges him to procure from the presbytery of Perth a right or disposition of the old glebe of the parish of Tippermuire to the said George. In anno 1662, the minister registrates the contract, and summons Tippermuire to perform his part of the contract, and obtains decreet against him; whereupon he raises letters of horning, charging him to obey the said decreet, that ordaining him to pay to the charger the yearly duty of eight acres of land conform to that contract. Thir letters Tippermuire suspends on thir reasons: 1mo, Because the foresaid charge is altogether general, only for two years duty of the said eight acres of land; neither condescending upon the species or kind of the said duty, whether victual or money, nor yet on the quota or quantity thereof, nor yet for what years of God the same is due and payable; so that the suspender cannot, nor knows not, what obedience to give thereto. 2do, We have seen the pretended contract, ground of the said decreet suspended, to be conditional, and to contain mutual obligements: but so it is, that the said minister never procured the said right conform to the tenor of the contract; till which be done, the suspender can no ways be obliged to make payment to him of the said duty charged for, albeit its species and quantity were condescended on, as is not. 3tio, Offers to prove that he left the said eight acres excambed free to the minister, for him to enter to the possession thereof; so that, after the said contract, he meddled there-with neither by tilling or pasturing: but if the said minister suffered the same to lie lea and waste, sibi imputet; that is propria illius culpa; he cannot charge the pursuer with the duty thereof. Then summons him to compear and hear and see the said decreet and all that has followed, or may follow thereupon, suspended simpliciter. Mr. Alexander getting a copy of this suspension, and seeing the main reason thereof to be the non-liquidation of the yearly duty or quantities thereof, he liquidates it most craftily himself, and summons him then before the Commissary of Dunkeld; charging him to make payment to him of 313 merks, 4s. 4d. as if it had been contained in the decreet obtained before the Lords; and by that slight, (suppressing the cause or ground of the said pretended debt,) recovers decreet against him: Tippermuire not thinking himself obliged to compear, because he had a suspension standing undiscussed of the very ground of this charge now to compear before the Commissary. Upon his decreet he obtains a precept charging him to pay the sum contained in the decreet, under the pain of rebellion and escheating, &c. This charge he again suspends, upon this reason, besides the others deduced in the first suspension; that the ground of this decreet being suspended, and yet standing undiscussed, it were absurd to suit any execution upon a commissary's decreet or precept for the same debt; they being also consequentially and dependantly suspended. At last, the suspensions being called, the minister's procurators are content that the reasons of both the suspensions be discussed simul et semel. And to them all, the charger oppones, first, his decreet obtained in foro contradictorio. Then for that, that the suspender left the said eight acres of land, conform to their contract, free for the charger to enter thereto; he offers him to prove that he was interrupted by the suspender himself, or his servants, by commission from him, in the peaceable possession of the same.
Which defence the Lords found relevant; and so assigned him a day for proving the same: who, at the day, produced some witnesses; who being on oath examined, their depositions were found unclear; and, therefore, the Lords, before advising the cause, grant full power and commission to Mr. John Nairne, sheriff-depute of Pearth, to try if there was any such interruption, yea or no; and ordain the charger to report at such a day: which, the day being come, he failyied to do; and, therefore, the Lords suspended the said letters, with all that has followed thereupon simpliciter.
Act. Mr. Thomas Murray.Alt The Minister, Mr. Nathaniell Fyfe.
Signet MS 24, folio 8.
