Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
John Thomson v. Lady Spencerfield
Date: 4 February 1680
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William Napier of Wrights-houses being dead; John Thomson, an officer in Edinburgh, being son to William Napier's grandfather's brother's daughter, gave in a bill to the Lords, showing his right of blood, and craving that the corns, cattle, and other plenishing which were perishable, might be sequestrated in a responsible man's hands till it were found who had best right The Lords granted this.
Then the Lady Spencerfield, pretending she was nearest in blood, (but now it is alleged the person from whom she connects her right was a bastard,) and competing, there were mutual bills given in to the Lords by either party, craving that their witnesses (who were very old,) might be examined, to instruct their propinquity of blood. The Lords refused this, but ordained the witnesses to be examined, the time of the service before the inquest.
Then by bills, they craved, lest one should steal forth brieves clandestinely, the other not being present, and so serve thereon, that the Lords would ordain them to be summoned thereto. The Lords discharged the director to the Chancery to give out any brieves for serving any of the parties contending, till such time as they report to him an instrument, bearing that they have intimated by a notary to the other party concerned, both the day, place, and judge before whom they are to serve, that they may compear, and object if they please.
Upon an apprehension that there was not an heir within ten degrees, Mr Andrew Forrester got the gift of his ultimus hæres for the Earl of Murray's behoof. And the service being fixed to the 19th of March, and three Lords being joined as assessors to the macers, on the said day, the King's advocate appeared for the donatar's interest, and produced his gift, and craved up the verifications of the contingency by writ, and the names of the witnesses, to see till another day. Which, though unusual, yet was granted, and the service was continued till the 23d of March. Before which day, there was an advocation of it passed to the Lords, only to delay and weary out the poor man, pretending that intricate points would arise on the probation, which none could decide but the Lords. Yet there was no such difficulty but what the three assessors might have determined. Vide infra, 8th June 1680.
Vol. I. Page 82.
1680. June 8.— The heirs of Wrights-houses (de quibus vide 4th Feb. 1680,) craving by bill that their witnesses might be examined, (they being old, and one of them dead since the advocation,) for proving their contingency of blood, seeing the rest might likewise die before discussing of the advocation from the macers to the Lords; the Lords refused the bill, because the macers would regard no testimonies of witnesses but them that were examined in their own presence.
It was moved by one of the Lords, that the macers and assessors might convene the assize, and in their presence take the probation, to lie in retentis, and proceed no further. This was also refused; because the advocation standing undiscussed superseded all procedure, and the roll of causes being far advanced, it would come in within a few weeks, and the testificate of the witnesses' age and infirmity did not bear upon soul and conscience.—This was judged by some hard measure, to gratify the Earl of Murray. Vide infra, 24th Nov. 1680.
Vol. I. Page 101.
1680. November 24.— The advocation against John Thomson, the heir of Wrights-houses, (8th June 1680,) was this day discussed, and the service remitted back again to the macers, with this caution to the inquest, to see the probation be clear as to the contingency of blood. And accordingly the inquest served him heir, though one of his witnesses died medio tempore.
