Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Helen Deas or Dae v. Isobel Lindsay
1678,
1679, and
1680.
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1678. June 15. —If a ground of compensation be repelled in a process where it is proponed by way of exception or defence, that will not hinder but it may be pursued for via actionis in a process; and the allegeance of res hactenus judicata will not meet that case to exclude it; for many things are receivable by way of action which are not via replicæ vel exceptionis, because it may be they are not liquidated nor instantly verified. Thus, in the action between Isobel Lindsay and Helen Dae in Perth, this session, it was alleged, though the Lords had refused to allow Helen Dae's reparations she had bestowed on the apprised tenement, against Lindsay the liferentrix, in their Count and reckoning, by way of exception, yet that was not such a prejudicim as could hinder Dae from pursuing for these meliorations via actionis, and liquidating them; though we opponed the decreet which -repelled the said reparations, in so far as concerned the liferentrix her interest, and reserved only action to her against the fiar for the same, and so was clearly in the case of res hactenus judicata. And yet this interlocutor may seem strange, and not consonant to the analogy of law, by which the liferentrix is liable for usual reparations, and not the fiar. Vide infra, 3d Jan. 1679.
Vol. I. Page 4.
1679. January 3.—In the cause betwixt Helen Deas and Isobel Lindsay in Perth, (vide supra,) the Lords reponed Lindsay against the decreet, as to any defences she could instantly verify, and that in respect of the precipitation of the extracting the decreet before it was read in the minute book. Thereafter Lindsay craving compensation upon some decreets she had against her son Inglis, who was cedent to Deas; and they pretending it was for aliment, which was to be presumed ex pietate; and the same being reported by Newton on the 14th of Feb. 1679:
The Lords allowed the compensation, the suspender Lindsay always producing a renunciation and discharge; and repone Thomas Inglis to his oath against the first decreet, and likewise repone him against the second decreet: and find the said Thomas Inglis liable for the aliment of his elder brother whom he represents, but not for the aliment of his younger brother. And remit to Newton the Ordinary to modify the aliment of the elder brother, as he, after consideration of his condition and means, shall think fit. See 17th Jan. 1680. Anent aliments, see Durie, 27th June 1629, Robertson; and 3d March 1629, Carmichael. See also 1st Feb. I672, Guthrie; 19th Feb. 1679, Falconar; and 12th Nov. 1679, Cockburn.
Vol. I. Page 30.
1680. January 17. —In the action Helen Deas against Isobel Lindsay, (vide 3d Jan. 1679,) the Lords, upon Newton's report, having considered the decreets of cognition of the value of the tenements, and the deposition of the witnesses, they found it proven, that, before the reparations made by Deas, the house paid only £9 Scots; and that after the reparations the houses paid £70 Scots; so that, by the reparation, the free profit of the rent of the houses extended to £61 Scots yearly; and therefore decern the liferentrix, Lindsay, to make payment of the said £61 Scots of all years wherein she possessed the houses, or that the compriser possessed by right from her. And find the expenses of the reparations to extend to 1000 merks Scots; and decern the liferentrix to make payment of 300 merks thereof, and the fiar to pay 700 merks thereof. This decision is at 7 years' purchase of the liferent of 1000 merks.
