Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Earl of Dumfries
v.
Alexander Burnet and Hay his Mother

Date: 27 January 1671

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The Earl of Dumfries's father being debtor to Andrew Smith, by bond, in the sum of £4600; whereupon inhibition was served, before that Dumfries did dispone the Lordship of Sanquhar to the Earl of Queensberry, in the year 1638: by a subscribed condescendence, Queensberry was to retain as much of the price of the lands as that sum did amount to, until the inhibition should have been paid; after which, in anno 1643, Dumfries, having got a discharge from Andrew Smith, the creditor, did deliver the same to Mr Alexander Burnet upon a ticket of receipt; whereby he was obliged to registrate the same, and give an extract thereof for purging the inhibition: And, in the year 1669, Dumfries did intent an action against Burnet's heir and executor, for delivery of an extract of the discharge, or payment of his principal sum, and annualrents accordingly.

The Lords did decern, superseding extract until November thereafter; that, in case the defender should recover a discharge from Smith's heirs, or obtain adecreet of improbation against the bond and inhibition, and then no decreet should be given against them.

The said defenders having pursued an improbation, and certification therein granted, and before extracting, both parties being heard; It was alleged, That a decreet of improbation could not secure either Dumfries or Queensberry, because Andrew Smith, the creditor, might have either assigned the bond to another, or it might have been comprised, and legal intimations and executions used against Dumfries, at the pier and shore of Leith, when he was out of the country for many years together; so that nothing could secure but a discharge from Smith's heirs.

The Lords did, notwithstanding, assoilyie the heirs and executors of Burnet from payment; and ordained the decreet of improbation to be extracted; but withal ordained the defenders to find sufficient caution to warrant both Dumfries and Queensberry during the whole years of the prescription; especially upon this consideration,—that, by the space of thirty years, there was never any pursuit used by any assignee, compriser, or arrester.

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