Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Thomas Hamilton v. George Turnbull
Date: 20 January 1664
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General Major John Hamilton, son to Sir Alexander Hamilton of Ballincreiff, in 1648 obtains decreet before the Lords of Session, against George Turnbull in Mirrietoune, for L.36 Sterling, in Scots money making L.432. Colonel John dies. His brother, Thomas Hamilton, confirms himself his executor dative and so pursues the said George; and in 1662 obtains a second decreet for the said sum; whereon he charges him with horning: which letters he suspends, because the said first decreet, (which was the ground of the second,) was for null defence, and not compearance, he never being summoned thereto, neither at his own house, nor at the market cross of Edinburgh, pier, and shore of Leith, as being then in England at the engagement; whereas, if he had been summoned he would have alleged, as he does now, that he is content to give his oath that he was never addebted in any sums of money to the said General Major; which would have been sufficient to have stopt the pronouncing of the said decreet. 2do, Albeit, Mr. David Thoirs compeared for him in the said action, yet he had no warrant so to do, neither could he propone any defences for him (not having had any information;) only he craved a commission for taking the suspender's oath anent the truth of the debt charged for; which though granted, but instead of leading the commission, they extracted the decreet charged upon against the suspender, without his procurator's knowledge; the verity whereof he refers to the pursuer's oath. 3tio, The suspender has raised reduction of the said decreets; Ergo, At the calling of this suspension, there is produced a testificate under Sir Ja. Middleton's hand, bearing the suspender in 1648, the time of the pronouncing the said first decreet, to have been under his command. As to the foresaid reasons of suspension, coincident with the reasons in the reduction, it was answered for the charger; that they opponed the last decreet in 1662 charged on, bearing the said reasons to have been all then proponed by way of defences, and to have been repelled; because Colonel Hamilton having obtained decreet for the same in 1648, the suspender should have craved to [have] been reponed during his lifetime, (who likely might have proven the debt otherwise than by the suspender's oath,) and not now when he is dead; which may seem to have been done of purpose: but this charger as executor, (it being so long since,) cannot prove it. 2do, The suspender purges not his contumacy, by alleging he was then in the army, because this decreet was obtained in January 1648; whereas the engagement was not till the July thereafter. 3tio, As to the testificate, it wants writer's name, and witnesses; item, contains a false narrative; igitur, ought not to be respected.
In respect of which answers, the Lords found the letters orderly proceeded, ay and while the suspender pay the sum charged for. Item, assoilyie the pursuer from the said summons of reduction intented against him.
Act. Suspender, Mr. Nathaniel Fyfe.Alt. Mr. Robert Sinclair.
Signet MS. No. 89, folio 33.
