Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir Alexander Burnet of Leys v. Sir James Baird of Auchmedden
Date: 4 February 1665
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Sir Alexander Burnet of Leys charges Gordon of Park, Gordon of Cluny, and others, as having obliged themselves by bond, in 1660, to pay to him sundry chalders of bear, sundry chalders of meal, sundry silver duties, with caynes and poultry, and that during all the days of William Couttes sometime of Auchterfoulls his lifetime. Sir James Baird of Auchmedden arrests the same victual and others in Park's hands, for some sums of money addebted to him by William Couttes. Park suspends on double poinding. Item, if Leys should be found to have better right of the two thereto, suspends on thir reasons: 1mo, That there being legal debates anent the lands of Clunie, betwixt Gordon of Park and Couttes of Auchterfoull, the same were submitted to the Lord Brodie and others, who decerned Auchterfoull to dispone the whole rights of the lands of Cluny in favours of Park; ordained Park, for Couttes his better livelihood, to make yearly payment to him of the victual and duties charged for by Leys; for which having granted a bond blank, in the creditors' name, Leys gets his name filled up therein; whereas the same was allenarly granted to Auchterfoull's behoof, who, by disposition at the same time, obliged himself to warrant the lands of Cluny to Park, (who grants this bond now charged on,) from his own facts and deeds. Notwithstanding whereof he has granted a right since to Keith of Keithaskmilne; and therefore till the lands of Cluny be purged of that right, the suspender has ground of the retention of the victual, &c. contained in the said bond; the only cause of granting thereof being for the rights of the lands of Cluny. 2do, The said victual and duties are already paid to Auchterfoulls' factors, as their discharges thereof proport. At the calling and discussing of this suspension, the Lords suspended the letters quoad that which was instructed paid by discharges produced; found them orderly proceeded quoad the rest: discharge Auchmedden from troubling the suspender for the said sum, as a person found to have no right for aught that was yet seen. Burnet of Leys charges Park again on this decreet of suspension. He suspends the charge for the second time on the foresaids reasons. Item, That this charger can be in no better case than if Auchterfoull himself were charging, (to whose behoof the said bond was granted;) but so it is, that he would have been obliged to have premonished by the space of sixty days; item, To have warranted his disposition of the lands of Cluny, neither of which are done; Igitur. In this suspension Auchmedden compears by his procurators, and craves to be reponed against the foresaid decreet of suspension, and offers to prove, by William Couttes' oath, that he intromits with the said victual and silver which he had arrested in Park's hands, and had now charged for.
Which the Lords finding relevant, they assign to the procurators for the suspender a term to produce the said William Couttes to give his oath therein.
As to the reasons of the suspension against Leys, it was answered,—1mo, That they could not quarrel the decreet charged on; seeing they had homologated the same by partial payment since the pronouncing thereof. As to the requisition, offered to produce the instrument if need be. 2do, That the bond charged upon was to William Couttes' behoof, is only probable by the charger Leys his oath; and if he confess it, then the conditions of the bond are probable vel scripto vel juramento of the said William Couttes. 3tio, As to the warrandice, non relevat unless ye would say distressed; and what shall be so instructed they are content to allow, as also what shall be found discharged.
The Lords having considered the dispute, by their act of litiscontestation they find the trust probable by Leys' oath; which he granting, then they find the conditions alleged on in the suspension probable vel scripto vel juramento of William Couttes; ordain the suspenders to condescend what they are distressed for, that they may be relieved thereof; declare they will allow what discharges shall be produced by the suspender under the charger, or his factor's hands; ordain the charger to give his oath anent the rest of the sums and victual not found discharged, whether he has received the same; yea or no. Assign a day for producing their several clients, for giving their oaths anent the several points admitted thereto; reserving always to the charger his objections against the discharges, et alia producenda. Before the term assigned in the act comes, Burnet of Leys dies; whereupon his son serving himself heir to his father, pursues a transferring against the Laird of Park of the said act of litiscontestation foresaid, with all other minutes of process, &c. in his own person activè, and the said defenders passivè. The Lords transfer, reserving always to the said defenders, all their lawful defences in the principal cause, as well against the interest of parties, as others in the cause, as accords of law.
In the suspension, for the suspender, compear Mr. George M'Kenzie and Mr. William Strachan; the charger, Sir George Lochart, Mr. Robert Burnet; for Auchmedden, Sir Jo. Baird and Pat. Fraser. In the transferring, for the pursuer, Mr. David Falconer. Alt. Mr. Arthur Gordon, Thomas Baird, and George Nicolsone.
