Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
James Deans v. Sir William Purves
Date: 18 January 1678
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There was a competition between James Deans, in the Canogate, and Sir William Purves, solicitor, anent the right to a sixteenth part of a ship which belonged to Francis Aird. Sir William claimed right, as donatar to Francis Aird's single and liferent escheat, and whereon he had obtained a decreet of general declarator. James Deans his right was an assignation from Francis, and intimated; who alleged Sir William's decreet was in absence and null; because every such declarator has two conclusions: one that the party was rebel, and orderly denounced; the second, that the pursuer was donatar to that casualty of rebellion. Now, though this second was proven in his decreet, by production of his gift mentioned therein, yet he had produced no hornings therein, though the gift narrated three; and so the decreet was intrinsically null, for lack of probation of the first point.
Answered 1mo,—It was but vitium transcriptoris; he would mend it, and abide at it; for the hornings were as truly then produced as his gift was. But, 2do, Esto he had no declarator, he must be preferred to James Deans, because the common author, Aird, was denounced before the making of that assignation; and so, there being a jus quæsitum to the fisk, he could do no act in prejudice thereof.
Replied,—We must first see the hornings, to object against them; for they may have nullities and informalities. Newton ordained us to see the hornings.
2do, Replied,—That James Deans his assignation and intimation being before Sir William's gift of escheat and declarator, though it be posterior to the denunciation itself, it must be preferred; as was found in Dury, 20th November J 623, Hamilton.
Duplied,—The assignation in that practick was not altogether voluntary, but in obedience to a caption. 2do, The Lords have clearly decided since this case, and preferred the donatar wherever the assignation is after the denunciation; and particularly in the case of William Veitch and Peter Pallat: where that practick of Dury's was urged, and repelled. See supra, No. 422, in November 1673; item, supra, No. 156, Helen Hamilton against Bell, &c. 25th February 1671. See the information of this case against Sir William Purves largely. The Lords, upon Newton's report, preferred Sir William donatar to the assignee.
Then offered to prove, by Sir William's oath, that he promised to communicate the benefit of this gift, (at the time he took,) for the common relief of himself and the said James Deans, wherein they stood cautioners for Francis Aird in the first place. This Sir William denied on oath. James may get a second gift burdened with Sir William's backbond. We also Alleged against the one horning,—That it was posterior to our assignation. This horning they passed from. Against the second horning we objected, it was for relief and no distress. Offered to instruct distress. Against the third, That Aird dwelt within the Canongate, which is a part of the regality of Broughton, and yet not denounced at the Canongate cross., Answered, 1mo, He dwelt in the house at the back of the Abbey, which is within the shire; 2do, It was not receivable hoc loco. It was repelled, because in facto and not verified, reserving our reduction on that head as accords, since the Officers of State were concerned. Vide supra, 11th November 1673, Mr Patrick Home, [No. 423.]
