Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Alexander Anderson v. Jo Chalmer of Collonach, and Jo. Chalmers, Minister at Gairtley.
Date: 16 December 1663
Click here to view a pdf copy of this documet : PDF Copy
Alexander Collie, sometime in Langmuire, now in Scaitmuir, by his bond, obliges him to pay to Patrick Ferguson, burgess in Aberdein, the sum of L.53 yearly, for the years 1627, 1628, for his own entertainment; item, forty merks for his son's entertainment in 29, 30, 31, 32, 33, 34, &c. On this registrate bond, Patrick charges him, in anno 1656, with letters of horning. After, he is orderly denounced rebel, and lies year and day at the horn, unrelaxed; whereby, conform to the laws and practique of this realm, and privilege of the crown, his liferentescheat fell in the king's hands, and became in his gift and disposition: who, by a letter of gift under the privy seal, disponed the same to Captain William Barclay of Auchvedy: who immediately intents summons of declarator of the escheat, against the said Alexander Collie; summoning him to compear, and hear it found and declared by the Lords, that he was orderly denounced; that he lay year and day under the said process of horning; that therethrough, all his goods, escheatable, as well moveable as immoveable, that pertained to him, the time of the said denunciation, or that accresced to him since syne, with the liferent escheat of all his lands, heritages, &c. were at the king's gift, and so do appertain to the said pursuer as donatar.
The Lords decerned, conform to the desire of the summons. This letter of gift, with the decreet of declarator thereupon, the said Captain assigns to Mr. Alexander Anderson, servitor to Sir Jo. Fletcher, king's advocate; who understanding that Mr. Jo. Chalmer of Collonach, as principal, and Mr. Jo. Chalmers, minister at Gairtley, as cautioner, had granted them to have borrowed from the said Alexander Collie, 1000 merks, and obliged themselves to the repayment thereof; he, by virtue of his assignation to the foresaid gift and decreet of declarator, having good and undoubted right to call for all debts or sums of money owing to the party denounced, pursues the said Collonach, principal, and Mr. William Chalmers, as son and heir, at least executor confirmed, to the deceased Mr. Jo. minister at Gairtley, for payment making of the said 1000 merks to him. For instructing the points of the forementioned summons, there is produced by the pursuer, the king's gift, with the decreet of declarator; then his assignation he has thereto; then a decreet of suspension purchased by the said Collie, against the said Chambers, finding the letters orderly proceeded against them, and ordaining them to have effect, ay and while the suspenders should make [payment] of the sum of 800 merks, which the Lords found really to be due, assoilyieing them from the other 200 merks charged for; upon production whereof, the pursuer declared that he was likewise content to restrict his summons to the 800 merks specified in the said decreet of suspension. And for proving the passive titles against Mr. William Chalmers, he produced the extract of his father's testament, duly confirmed by the Commissary of Murray, decerning also the said Mr. William executor to his father.
Alleged by the defenders' procurators, that no process could be granted against them at this pursuer's instance, because in May 1659, there was a condescendance and minute made betwixt the said defenders and Collie, by which they were obliged to infeft him in an annualrent effeiring to the sum of 800 merks, contained in the decreet of suspension, out of the lands of Ashogle: by which destination the sum was made heritable; and so could not fall under escheat, and consequently, neither pertain to this donatar nor his cedent. Whereunto it was replied by the pursuer's procurator, that the allegeance ought to be repelled, because there was no such condescendance produced; likeas, although the same had been produced, yet could it not have been respected, because if any condescendance was betwixt thir defenders and the rebels, the same was long after the rebellion, he being rebel in 1656, and the condescendence being in 1659; and, therefore, done in defraud of the fisk; and so could neither prejudge the king's donatar, nor the donatar's assignee.
The Lords repelled the allegeance, in respect of the reply, and decerned the defenders to make payment to the pursuer of 800 merks; assoilyie them as to the 200.
Act. James Abernethy.Alt. Thoires.
Signet MS. No. 41, folio 14.
