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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Earl of Dumfermling v The Earl of Callender. [1676] 2 Brn 200 (16 February 1676)
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Cite as: [1676] 2 Brn 200
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[1676] 2 Brn 200
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.
Date: The Earl of Dumfermling
v.
The Earl of Callender
16 February 1676 Click here to view a pdf copy of this documet : PDF Copy
The late Earl of Callendar having married the Countess of Dumfermling, he became obliged, That the half of the conquest should belong to the Lady and her heirs, if there were no children to succeed thereto; and did also renounce his jus mariti to her liferent lands, that she might dispose thereupon at her pleasure. This Earl of Dumfermling, as having right by progress to these provisions, did pursue the late Earl of Callendar and this Earl, then Lord Almond, to whom he had disponed his estate with the burden of his debt, at least without a cause onerous, concluding against both to denude of the half of the conquest; and against the late Earl, to pay his intromissions with the Lady's jointure lands; and against the Lord Almond, that the same might affect the estate. The late Earl being dead, Dumfermling insists against this Earl.
It was alleged, No process against this Earl, till the late Earl's heir, or apparent heir, were called to liquidate these obligements against them; or until the process were transferred. 2do. That this Earl, having right by disposition, was in as good case as an heir of tailyie, against whom no process is sustained till the heir of line be discussed.
It was answered, That the conclusions against this Earl, being either upon his own obligement, to pay his uncle's debt, whereof both the said provisions were a part; or otherwise being declaratoriè, that his disposition being gratuitous, the lands might be affected with anterior debts by apprising, and the same might be liquidate, there is no necessity to call any other: for, albeit, in a reduction
before certification, authors must be called to produce, yet, in a declarator, there is no necessity thereof. The Lords repelled both the defences, and sustained the process.
Vol. II, Page 416.
The electronic version of the text was provided by the Scottish Council of Law Reporting