Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Duke of Buccleuch v. The Earl of Twedale
1677.
February14 and
July27.
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February 14.—In the pursuit, Duke of Baccleuch against the Earl of Twedale, mentioned supra, in February 1676, [page 72,] the Lords advised it this day: the interlocutor was long, and must be inquired after. They found the King's ratification of the contract, as father to Monmouth, not sufficient to bind him, &c. The most material parts of it went against Twedale.
Advocates' MS. No. 543, folio 275.
July 27.—In Baccleuch andTwedale's cause, after a new hearing, impetrated by Twedale, the Duke of Lauderdale being present, they adhered to their former interlocutor; and found the testament of umquhile Francis, Earl of Baccleuch, appointing the overseers to apply his rents, during his children's minority, towards the payment of debts, imported an universal legacy of the dead's part to the heir.
Advocates' MS. No. 626, folio 298.
Anent Deeds Executed in Prison.
It is thought deeds done by men in prison, in favours of them who imprisoned them, are not valid in quantum they exceed the preceding ground of debt; and therefore we have a foolish custom of bringing them out of prison for granting writs; for, since they return, that imports nothing in law. See Peckius de Jure Sistendi, c. 43; and July 1672, Eshintilly. Executio juris non habet secum injuriam; but if the messenger detains them in a private house, and there they grant bond before they go to prison, it is thought the said writs may be quarrelled, as being granted per vim et metum, and as done in privato carcere. See 10th January 1677, D. Hamilton against Castlemilk.
Vol. I. Page 12.
Anent Writs not Subscribed by the Party.
A confession emitted in an inferior court non probat, unless it be subscribed by the party, if he can write. Yet if the clerk of the said court be a notary, and if the emitter of the confession and declaration cannot write, I think the clerk's assertion, as notary, will bind him, to the extent of £100 Scots, and not above; unless there be two notaries, and it. be proven that he gave them command to subscribe for him; in which case it would bind as a bond. See 28th January 1671, Gibson,—Mackienz. Crim. p. 418, and Observ. on the Act 1621,—Durie, 17th June 1624, Clerk,—Stair, 16th July 1661, Osburn.
Anent Witnesses to Subscriptions.
Where five or six are subscribing a contract or other writ, as parties, the Lords have refused to repute them as witnesses to one another's subscriptions, thereby to sustain the writ against that nullity.
Vol. I. Page 12.
Anent Judicial Roup of Lands.
The Lords ordained a roup to be made of the estate of Cunnochie, in Fife; which ordinance proceeded on a supplication given in by the debtor craving the same: whereupon Forret was named judge thereto, who emitted a precept to warn all, both at the parish-kirk and market-cross of the shire, who had any interest, to be present such a day in Couper, and bid therefore; and, that there may be no fallacy, the tack warrants the rental. See March 1677.
