William Montgomery v. Theodore Montgomery, and Mr William Lauder
Date: 10 February 1663 Case No. No 5.
In a declarator of escheat, the horning was alleged to be null, as being upon a null decreet. This was repelled, because the party was in contempt in not suspending, debito tempore.
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William Montgomery, as donatar to the liferent escheat of Theodore Montgomery, pursues a special declarator against the tenants of Whiteslide, belonging to Margaret Hunter in liferent, and now to Theodore, jure mariti, for their duties. It was alleged, That the horning was null, because the debt was satisfied before denunciation. The pursuer answered, That it was not competent, in the special declarator, to question the nullity of the horning. 2dly, Though it were in a general declarator, it were not competent, not being instantly verified without reduction. 3dly, It were not probable, but by writ, before the denunciation, and not by the creditor's oath, or having discharges, being in prejudice of the King; but that no hazard might be of antedating it, was required by act of Parliament, that beside the writ, the parties should depone upon the truth of the date. The defender answered to the first; All defences competent in the general declarator, are reserved in the special. To the second, There is a reduction depending.
The Lords found the defence relevant, only scripto of the denouncer.
The defender further alleged the horning was null, as being upon a null decreet, and falling therewith in consequence.
The Lords repelled the defence, and found, though the decreet were null through informality, yet the horning would not be annulled, but the party was in contempt, in not suspending debito tempore.
Compearance was also made for Mr William Lauder, who alleged he had disposition from the rebel, before year and day run. The Lords found this allegeance not relevant, unless it were alleged to be for a just debt, before the denunciation. It was further alleged for Mr William, That the pursuer granted back-bond to the tresaurer to employ the gift by his appointment, and he offered to satisfy the donatar's debt, and the whole expense of the gift.
The Lords found this not relevant, without a second gift, or declaration from the tresaurer.
