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Mr James Binning, as assignee to a decreet obtained in anno 1654, at the instance of the relict of Alexander Hamilton, General of the Artillery, against his son and heir, for payment of L. 100 Sterling yearly to her, during her life, in case he died within year and day, pursues Anna Hamilton, as representing her brother, for payment; who alleged absolvitor, because the decreet of the English Judges was unjust, having repelled this lawful defence, That the obligement was in lecto, and had but the effect of a legacy, and that the testament was exhausted, the inventories being scarce sufficient to pay the debts.—It was replied, That these decreets, by the act of Parliament 1661, are ratified, with this exception, That they might be called in question within a year after the session sat down, even upon iniquity; but that time being elapsed, it cannot now be questioned on that ground.
The Lords having perused the decreet, sustained the same; for the defence proponed was not relevant by exhausting, unless it had been alleged by lawful sentences; and the extent of the debts before decreet thereupon was only a ground pro cautione mutiana; but they allowed the defender to be heard, whether the testament was now exhausted by sentences, or ineffectual by diligence, or notour irresponsality.
