Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

John Simpsone
v.
James Halyburton, Helen Stirling, Jas Weimes, Sir Jo. Tours, William Tours, &c.

Date: 20 January 1664

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Sir Alexander Tours of Innerleith, as principal, Alexander Simpsone in Innerleith, and Alexander Steill in the Mains thereof, as cautioners, oblige them, by their bond in 1644, to pay to Jo. Simpsone, merchant in Edinburgh, the sum of 4000 merks. This bond Jo. registers in 1645; and inhibits him; which letters and their executions are also duly registered. Then assigns in 1645 the said bond, with the diligence done thereupon, to Robert Urie, writer in Edinburgh; who summons Jo. Tours, son and heir to the said Sir Alexander, granter of the bond, before the bailies of Edinburgh, where he obtains decreet against him; as also before the sheriff of Edinburgh. Then by his retrocession he dispones over the same bond, with the letters of inhibition, and decreet obtained by him, to the same John Simpsone, his cedent; who thereupon comprises the lands of Innerleith; and upon his comprising gets himself infeft. In 1659 Jo. Tours, notwithstanding of this inhibition served against him, by his bond of alienation, sells the lands and barony of Innerleith to Alex. Halyburton, merchant in Edinburgh. Alexander dies. John Simpsone now raises a summons of reduction against Ja. Halyburton, his son and heir, Helen Stirling, his mother, and liferenter of the lands, Mr. James Weimes, parson of Kirkliston, her spouse, for his interest, Sir Jo. Tours, lately of Innerleith, William Tours, father brother, and so uncle to the said Sir Jo. and their tutors and curators, &c. charging them to compear, and exhibit before the Lords the foresaid letter of alienation, or disposition, made by the said Sir Jo. with consent of his said uncle, and dame Jean Ker old Lady Innerleith, to the said Alexander Halyburton, containing the lands under mentioned; Vindeston, the six acres of land called the Slucker-acres, Glegmensie, Wairdiemuire, Hirdshill Coukepill, Cumlebank, Doucot's-croft, Easter and Wester Waltinshots, Easter and Wester Stanks, Easter and Wester Hoggitsheill, Foulfidus and Lovingrass meadows, Pyetshots, Eastern Lugside, the Buts, the four Broom Parks, Wardie-toune and lands, and Craig of Innerleith; to hear and see the same reduced, and declared null ex capite inhibitionis. For instructing the summons there is produced the bond; the letters of inhibition duely executed and registered; the decreet obtained against them at Robert Urie's instance; his translation thereof; the decreet of apprising, &c. For satisfying the production there is produced the disposition called for; and it is alleged by the defenders that there could be no process of reduction sustained upon the foresaid inhibition, because the same was only raised upon a dependence. Whereunto it was answered by the pursuer, that he opponed the state of the process, wherein was produced not only the inhibition, but also the decreet that followed on that dependence; so that there is no dependence now.

All which reasons the Lords having considered, they rescinded the said contract of alienation; declared the same to be null; and so reponed and repone the said Jo. Simpsone, pursuer, in integrum, in sick like manner against the same as if it had never been made. Upon the pronouncing of which decreet, William Tours gave in a supplication to the Lords, craving his advocates might have a sight of the said process before extracting of the decreet; to the effect they might be heard upon their lawful defences thereagainst. The Lords, by their deliverance, ordain them to see the process in their clerk's hands; in the mean while stop the extracting of the decreet, whereupon they are heard of new again. Notwithstanding of all their allegeances, the Lords adhered to their foresaid rescissory decreet; only reserved to the said William Tours any right he had to the said lands of Innerleith, before the said inhibition was served.

Act. Mr. William Maxwell, Mr. Thomas Lermonth, Mr. Alexander Oswald. Alt. Ja. Chalmers. Signet MS. No. 88, folio 32.