Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Jo Logan of Burncastle v. The Creditors of James Logan of Hills
Date: 27 January 1665
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James Logan of Hills, having been tutor to Jo. Logan of Burncastle, finds Jo. Logan of Ardmanoch, cautioner to his pupil's curators, that he should, after count and reckoning, make payment of what he should be found to have intromitted with of the estate of Burncastle; and for his cautioner's security, he grants him a bond of relief in 1656, obliging himself to keep him scaithless, and to purchase sufficient discharges from his pupil and his curators, to himself and his said cautioner. Ardmanoch being distressed upon his cautionry, he pursues Hills the principal, upon his bond of relief; and charges him with horning; who suffers himself to be denounced, and lays year and day thereat; whereupon his escheat falls. Burncastle, the pupil, takes the gift of it, and pursues a general declarator there-of. It was alleged, no declarator could be granted upon the said gift, because they offered them to prove that the bond, and sums therein contained, whereupon the same proceeds, were either satisfied, paid, or the charge suspended before the denunciation, and so null, and needed not to be reduced.
Which allegeance the Lords repelled, and would not admit to stop the general declarator; but finding the summons relevant, admitted the same to his probation, which he instantly verified by production of his gift, and horning registered, with the executions thereof. Whereupon the Lords gave forth their decreet of declarator; reserving always to the defenders all their lawful defences in the special declarator to follow thereupon.
Act. King's Advocate, and Mr. T. Lermonth.Alt. Mr. Robert Trotter and Thoires.
Signet MS. No. 27, folio 45.
