Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
James Allan v. Agnes Ker
1680.
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February 11.—In the competition for maills and duties, betwixt James Allan, writer to the signet, and Agnes Ker; Allan propones improbation by way of exception against Agnes her general charge to enter heir, whereon her adjudication proceeded, in respect the same had been cutted, and likewise Mr John Hay's name had been inserted in it. When she came to abide at it, the Lords, upon a report, found it sufficient that she abode at the said charge, in so far as concerned herself, and not in so far as related to the said Mr John Hay. See 12 th Dec. 1679, Robertson.
Vol. I. Page 84.
July 9.—In James Allan's improbation of Agnes Ker's adjudication, (11th Feb. 1680;) alleged,—Her assignation to one of the bonds whereon the adjudication is led, is posterior to her charge against the heir of Stevenson the debtor, to enter; which is a nullity. Answered,—She is cautioner in that bond, and paid it, and so she was creditrix even for that sum by the clause of relief, at the time of her charge to enter heir; which is sufficient to sustain it.
This being reported, the Lords sustained Agnes Ker's adjudication so far as to come in pari passu with James Allan, as being led within year and day of his, (though in effect they were both obtained and infeft in one day, but in regard of the defect foresaid quarrelled in her's they gave James Allan's the priority,) and ordain her to pay to James the expenses of his adjudication and in-feftment.—Bat as to this he will be found more than paid by his intromissions already, which must be ascribed primo loco to his expenses. See Jan. 1672 . Several of the Lords thought there was no informality at all, but were for sustaining her adjudication simply. Vide infra, 30th July 1680.
Vol. I. Page 107.
1680. July 30.—In the action Allan against Ker, (9th July 1680,) her charge to enter heir having been produced, with the rest of the grounds of her decreet of adjudication, and being objected against as vitiated and informal, and taken once or twice to interlocutor, and at last being tint out of the process by the negligence of the clerk; the Lords, upon a bill, ordain all parties suspect or interested to be examined anent the abstracting of it. Whereupon the parties their advocates and agents being examined, they denied that they knew what was become of it; but deponed anent the tenor of it, (but knew not the witnesses' names in the execution,) and that they had frequently seen it.
The Lords having considered this, they found,—partly by the depositions taken of parties and witnesses, with the second extract of the general charge to enter heir taken off the signet, and copy of the execution produced, and the decreet cognitionis causa following on that charge to enter heir, and narrating the tenor thereof, with the date of its execution and the name of its messenger-executor; as also the decreet of adjudication produced, and Pitmedden's former reports relative to this same charge; and the recency in their memories of what was then done when this charge was then quarrelled;—they find the tenor of the said general charge to enter heir at the instance of the said Agnes Ker against umquhil John Stevenson, and executions thereof, sufficiently made up, verified, and proven. And this summarily on the grounds foresaid, without putting her to a new process, in respect of their private knowledge, and that it was yet recent in their memories. And the Lords declared the second extract or copy of the execution now produced, (albeit the same wants the witnesses' names,) shall make as much faith as the principal as to the interest of the said Agnes Ker allenarly, but not of Mr John Hay.
It is now a visual practice of the Lords to make up, upon a bill, writs lost out of processes, where they have been seen and produced, and lost during the dependance. Yet thus a false evident may be produced once, and purposely lost, and then the tenor of it made up; which tenor cannot be improven, the principal being wanting: and which trick Haddington, in a decision, 21 st June 1611, Lady Dunbreak, tells us was done in his time; but see him 4th and 6th March 1612, Lochinvar.
