[1676] 1 Brn 748
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: Alexander Lawrie
v.
The Tenants of Logan and Apparent Heir of Halbert Irvine
7 January 1676 Click here to view a pdf copy of this documet : PDF Copy
Alexander Lawrie, being served heir of conquest to his brother, John Lawrie of Maxwelltoun, who was infeft in the lands of Logan upon a wadset of 5000 merks, with a back-tack bearing a clause irritant;—whereupon, having obtained a decreet of declarator of expiration of the back-tack, and reversion for not payment of the back-tack duties, did pursue the heir of Halbert Irvine, granter of the wadset, for payment of the maills and duties.
It was alleged, That the decreet of declarator being suspended, albeit there
was suspension raised, and the letters found orderly proceeded, yet there was a new suspension raised by Halbert Irvine, which was yet undiscussed; and therefore that there ought to be a transferring of the said suspension, before the apparent heir was obliged to answer in this process of maills and duties. It was replied, That, albeit a suspension was raised, yet it was never intimated by the defunct; and the pursuer's brother, to whom he was served heir, being likewise dead, there could be no transferring: but the defender might allege, by way of defence, any reason of suspension which was then libelled.
It was Duplied, That the suspension was intimated, in so far as there was a relaxation at the market-cross, publicly executed at the defunct's instance; which was a sufficient intimation: and, albeit that had not been, yet, there being a standing suspension, no execution could follow upon the decreet, and so ought to be transferred.
The Lords did consider the custom and practick anent transferring; and found, That a suspension being raised, and never intimated by a citation of the charger in his lifetime, which was far stronger that if the suspender had cited after the day to which the letters were suspended; in which case a charger is in bona fide to execute a decreet; they found, that there was no necessity to transfer the suspension in this case, where both the suspender and the charger were dead; and therefore ordained, that the apparent heir of the suspender should propone, by reason of suspension or defence, as he thought fit.
Page 524.
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