Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Robert Young v. - Young and James Ewart her Husband,
Date: 9 November 1680
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Robert Young, merchant in Edinburgh, pursues before the sheriffs of Edinburgh, ———Young, relict of George Hutchison, vintner in Edinburgh, and James Ewart, now her husband, for payment of 400 merks, owing by her former husband's bond.
Alleged,—She was executrix confirmed qua creditrix, and the inventary was exhausted partly by her own debt, and partly by payments made to other creditors before his citation.
The sheriff, before answer, ordained her to produce the confirmed testament, and the instructions of her payments. Advocation is raised upon sundry reasons, whereof this was one, that the sheriff had committed iniquity, and exceeded his power, in making an act before answer; which officium nobile is only competent to the Lords, and not to be usurped by inferior judges, to shun the determination of the relevancy till they have all the probation lying before them.
Answered, —It was their ordinary practice, and there was no material injustice to ordain her to produce the testament; and the shunning to decide the relevancy was rather in her favours than against her.
Many thought the Lords would be jealous of allowing any but themselves to manage these Acts before answer, which themselves had but lately invented; however, my Lord Haddo was to give us the Lords' answer on it; as also on this point, Whether the sheriff did right in modifying the funeral charges, and expenses of the confirmation of the testament, upon their own particular knowledge what those things commonly stand or amount to in a person of his quality and condition, without first taking probation what was expended thereon: for, suppose they were truly debursed, yet, if exorbitant, a judge may tax and modify them.
