Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Ralph Williamson and aMary Ramsay, his Spouse, v. George Clapperton of Wyliecleugh
1678, and 1680.
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1678 July 28. —Ralph Williamson and Mary Ramsay, his spouse, against George Clapperton of Wyliecleugh, for reducing a decreet obtained by him in Feb. 1667 against them and Hopepringle of Torsonce, finding Torsonce's comprising satisfied by sale of lands, as it was prorogated by Act 62, Parl. 1661, and ordaining them to renounce in favours of Clapperton, who had right to the second apprising led by Kinnier of Forret, as if it had been the first.
The reasons of reduction were, 1 mo, Because any intromission from 1657, in which Torsonce's apprising expired by the law then standing, and 1661, to which, by a supervenient Act it was prorogated, were all fructus bond fide conswmpti; and so could never extinguish the comprising ex post facto. 2do, The 11000 merks paid by George Ramsay to Torsonce could not in law be ascribed in satisfaction of the comprising, because not paid after the legal, and not by him against whom the apprising was led, but by George tanquam quilibet. 3tio, Clapperton took a wadset of Wyliecleugh from Torsonce with absolute warrandice, for 18,000 merks: he did thereby homologate George's right, and was in pessima fide to acquire a posterior apprising in prejudice thereof. 4 to, Though Kinnier's apprising be prior to Torsonce's, and both being prorogated by Act 1661, and the pursuers having right to Torsonce's, and being then and yet still minors, at least within twenty-five, they offer to purge and redeem Kinnier's apprising; and though this was refused in the former decreet, yet it was then only repelled for not production of Torsonce's apprising, which is now produced.
The defender opponed his decreet, wherein all this was proponed and repelled.
Glendoick, Register, having reported this, the Lords repelled all the reasons of reduction, except the minority; as to which ordained them to be heard, If, the legal not being run in regard of minority, the minor may not yet purge at the bar.
In this cause it was alleged against the taking a term, that the pursuers, being strangers, behoved to find caution.
The Lords found, if the decreet craved to be reduced was only a mere declarator of extinction of an apprising, they needed not now, in seeking reduction of such a decreet, find caution judicatum, but only judicio sisti; but if it bore conclusions for implement and payment, then caution behoved to be found. Vide Annæum Robert. Rer. Judicat, lib. 4, c. 11, and Joan. Imberti Instit. Forms, lib. 1, c. 30.
Vol. I. Page 11.
1680 July 13.—In Ralph Williamson's reduction against Clapperton of Wyliecleugh, (25th July 1678,) the Lords, upon a bill, summarily ordained the depositions of the witnesses to be advised, which were taken to prove the minority of Mary Ramsay, Williamson's wife, and the time of her father's death; because this probation was only preparatory in order to the reponing her against a decreet obtained against her when she was minor, and her husband was a stranger.
