Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Patrick Home v. George Craw
1673.
November.
11th
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Mr Patrick Home, advocate, as having right, by translation, from Mr Hary Home, commissary of Lauder, who was donatar constituted by Sir Jo. Home of Renton, late Justice-Clerk, superior of the lands of Netherbyres, holden of his barony of Fleemington, of the liferent escheat of George Craw of Netherbyres, pursues a declarator thereof.
It is alleged for George Craw, That the horning, whereupon the gift of escheat proceeds, is null, in so far as, before the date of the denunciation, a bill of suspension of the charge of horning was passed by the Lords of Session, upon unanswerable grounds of payment and compensation of the debt charged for; after which no denunciation could be made, nor escheat fall, and all diligence thereafter was fraudulent and null: and a practique in terminis was alleged on in 1668, between Renton himself and——, wherein the Lords found diligence done after a bill of suspension was passed, to be null, illegal, and unwarrantable.*
To this it was replied, 1mo, The nullity non competit hoc loco by way of exception. It must be insisted on by way of reduction, and in which the superior, viz. his brother Sir Alexander Home, (though he, by the tacks his father set to him, bruiks it,) must be called, who cannot be prejudged cum res illius agatur. 2do, Non relevat, unless they be able to say the suspension was passed, signeted, and intimated to the charger, or messenger; since no other deed (being res inter alios acta) could prejudge them, or put them in mala fide.
Duplied, 1mo, Though it be nullitas facti and not juris, yet, being instantly proven by production of the passed bill of suspension, compared with the date of the denunciation, frustra am I remitted to a reduction. 2do, Oppones the foresaid practique in 1668, where there was no intimation; et scire debere—&c.†
The Lords found the allegeance of nullity not receivable hoc loco, till we called the superior in a reduction; and he being once in campo, reserved the consideration of the relevancy thereof to that place. But it seems hard it should annul the course of diligence before intimation made. Vide supra, No. 252. [11th November, 1671.] Vide decisionem sequentem.
Advocates' MS. No. 423, folio 227.
* See Stair's Decisions, 30th January, 1663, Mr Andrew Hamilton.
† Vide infra, numero 463, Marquis of Atholl, [February, 1676;] infra, No. 711. Deans and Purves, [18th January, 1678.]
