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Hamilton, and her Authors, having obtained decreet against Lochs, as heirs to their father, for a sum of money, and annuals thereof, after count and reckoning, and being thrice suspended, there are still decreets in foro: Lochs, and the Earl of Kincardine, now suspend again, and alleged, That in the count and reckoning there were several receipts of annualrent, which were not at that time in Loch's hands, but in the Earl of Kincardine's, whose father was co-principal, bound conjunctly and severally with Loch's father. The charger opponed her decreets in foro, and alleged, That Kincardine had no interest; for neither could the letters be found orderly proceeded, nor yet suspended against him; and whereas it was alleged, That the clause of mutual relief would force him to relieve the Lochs pro rata, he had a good defence, that they had not intimated to him the plea, and thereby had prejudged themselves of the defence upon the ticket in his hands. The suspenders answered, They were minors, and that Kincardine, having a clear interest, might chuse whether to defend them, or defend himself against them.
The Lords reponed them to the tickets now gotten out of my Lord Kincardine's hands; but declared there should be expense granted against them for all the decreets to which the chargers were put.
Stair, v. 1. p. 226.*** Newbyth reports this case:
George Bruce, father to the Earl of Kincardine, James Loch, and three other persons, having granted bond for L. 10,000 to the Lady Tulleallan, in liferent, and to her children, James, Alexander, and Anna Blackadder, in fee; in anno 1641, James did assign his part, which is 6000 merks, to Anthony Boswall, who having obtained decreet against the Executors of James Loch, they did suspend, upon this reason, that the Earl had paid to the Lady Tulleallan the sum charged for before the granting of the assignations; but the letters being found orderly proceeded, the said Anthony assigns the decreet of suspension to Helen Hamilton, who having charged de novo; and the Executors defending upon the former reason, and with them the Earl of Kincardine, albeit he was not charged, nor no decreet recovered against him, yet the Lords found he had good interest to compear and suspend the decreet upon reason of payment; and which reason being instantly verified, they would now receive, notwithstanding there were terms taken in the former decreet to produce the same, and were circumduced; it being against law and reason, that payment being once made, it should be again sought; especially seeing the time of recovering of the former debts Helen Hamilton was ordained to find caution to warrant the executors at all hands, in case any thing were found to be paid.
