Scottish Court of Session Decisions

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

William Baxter, and Mr Patrick Falconer, his Assignee,
v.
James Maxwell of Kirkonnell

Date: 25 July 1676

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Umquhile Halbert Maxwell of Kirkonnell, being debtor, by bond, in the sum of £1400, to the deceased Patrick Baxter,—William Baxter, his son, did pursue John Maxwell of Kirkonnell, as representing the said Halbert, for payment; in which action, there being a defence of prescription proponed, and a reply of interruption, before decreet the defender died: Whereupon the pursuer intented a transferring, and got a decreet for payment against James Maxwell, as heir to John, and, by progress, to the said Halbert: Whereupon, being charged, he did give in a bill of suspension; and the reasons being remitted to the Ordinary:—

It was alleged for Kirkonnell, That the decreet of transferring was under reduction, upon the reason of minority and lesion, he being out of the country the time of the decreet; and, if he had compeared, he would have renounced to be heir to Halbert, which would have freed him from personal execution: Likeas, he is yet content to renounce, that Halbert's estate may be adjudged. 2d. The bond, which was the ground of the pursuit, being an heritable bond, by a charge of horning, became moveable, and so did fall to Patrick Baxter's executors, and not to his heir William, who had obtained a decreet.

It was answered, That the decreet, being in foro contradictorio against Kirkonnell, who compeared by his advocate, who proponed a peremptory defence of prescription, he can never be heard to suspend and reduce, and as to the second, the pursuer's title as heir not being controverted, the decreet wae good; likeas, yet, they are content to conform.

The Lords, having advised the bill, and answers, and finding, That Mr John Ellis, who was made advocate, compearing, disclaimed the same; did repone Kirkonnell as being minor the time of the decreet, and out of the country, that he might yet renounce to be heir, to the effect that Kirkonnell's estate, who was a debtor, might be affected by an adjudication: but found, that minority and lesion was sufficient to secure him against personal execution, or burdening of any other estate, who had them from the debtor, notwithstanding the decreet was in foro, and extracted, and after litiscontestation; and so they ordained, after confirmation, Baxter and his assignee to extract a decreet for that effect.

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