If probative of its Onerous Cause against Creditors and Donatars of Escheat.
Lady Lucie Hamilton v. Boyd of Pitcon
Date: 15 July 1670 Case No. No 443.
The onerous cause of a disposition between conjunct persons, found not to be instructed by its own narrative or the acquirer's oath.
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Lady Lucie Hamilton insists in her reduction, (See No 114. p. 7046. voce Inhibition.) against Pitcon, on this ground, That albeit the disposition granted to him by George Hay, the common debtor, be anterior to the pursuer's inhibition, yet it must be reduced on this ground, That it is without any equivalent onerous cause, and that albeit it bear an onerous cause, yet that will not instruct the same, but it must be instructed otherwise than by Pitcon's own oath, because it is betwixt conjunct persons, two good-brothers; and because it bears not only to be in favour of Pitcon himself, but for the use and behoof of the creditors, whose names were then blank, and thereupon are now excluded, as being filled up after the pursuer's inhibition, so that the disposition being in so far fraudulent, and not totally granted to Pitcon for himself, the proportion of his interest cannot be known but by instructing the debts due to him, and for which he was engaged the time of the disposition. It was answered for Pitcon, That he was ready to instruct the debts scripto, and for some few to whom he had undertaken payment at the time of the disposition he offered to produce their bonds, and to depone that he undertook payment of them, as said is, which is all that is required by the act of Parliament anent fraudulent dispositions, whereby the defect of an onerous cause is to be proved by the party's oath who gets the disposition.
The Lords repelled the allegeance, and found that Pitcon behoved to instruct the cause of the disposition, otherwise than by the said bonds and his own oath.
It was alleged for Kelburn, another of the creditors, That he had right by an apprising, proceeding upon sums anterior to the inhibition. It was replied, That the apprising was null; 1st, Because the denunciation whereon it proceeded was not at the market-cross of the shire, but at the market-cross of the regality in the English time when regalities were suppressed; 2dly, That the apprising was led at Glasgow, and neither within the shire of Ayr, where the lands lie, nor by dispensation at Edinburgh; and, albeit the letters bear a dispensation to apprize at Glasgow, and that the denunciation was made accordingly for the parties to appear at Glasgow, yet there was neither law nor custom for such a dispensation, and parties are not obliged to attend but at the head burgh of the shire, or in communia patria, at Edinburgh; 3dly, The pursuer has also an apprising, though posterior, yet preferable, because solemn and orderly according to the custom then being. It was answered, That albeit the custom under the Usurper might excuse the want of denunciations at the head burghs of regalities, which were then suppressed, where they were used at the head burgh of the shire according to the custom then, and so validates such apprisings; yet this defender having, according to the standing law of the land, denounced at the head burgh of the regality, the contrary unwarrantable custom cannot annul his apprising, proceeding according to law; and as to the dispensation at Glasgow, which was nearer the lands than Edinburgh, whatsoever might have been said to the inconveniency of granting such a dispensation, yet being granted, it is valid, and it was then frequent to grant such dispensations.
The Lords found that the pursuer's apprising being according to the ordinary custom for the time, at the head burgh of the shire upon denunciation, that it was more solemn and preferable as to the manner of denunciation, than that which was upon denunciation at the head burgh of the regality at that time. But the Lords did not determine whether such an apprising would have been valid if there had not been a more formal one; nor whether the dispensation being granted at Glasgow was valid.
