A requisition at a market-cross found null, not being by letters of supplement from the Lords.
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Gordon being infeft in the lands of Middlebee, pursues reduction of an apprising, led at the instance of Craig of Stewarton, as assignee to a decree of terce-duty of the said lands due to Mary Maxwel, relict of Kobert Maxwel of Middlebee, and upon several heritable bonds due by the said Robert, to the which apprising the Earl of Queensberry had right. The first reason of reduction was, that the decreet for the terce-duty was null, bearing only “that the relict was kenned to a terce, and that the duties of the lands were intromitted with by Maxwel during his life, after the tercer's husband's death;” but it did not bear, that the time of her husband's death was proven, or the durance of the intromitter's life; and that it would appear so by the testimony of the witnesses extant in process, the decreet being in anno 1677. It was answered, That the Lords having found by a decreet in foro that Maxwel intromitted, and that the terce-duties intromitted with, extended to the sums decerned, and did necessarily infer, that probation was both led at the entry of the intromission and the ish thereof; and that it is a principle that no decreet of the Lords in foro can be quarrelled, upon pretence that the testimonies did not prove what the Lords found proven, for testimonies not being publishable in the first or second instance, the sentence is ultimate and unquarrellable, and the Lords do frequently refuse revising of testimonies, even before extracting of the decreet, much less after so long time, when it cannot appear whether all the testimonies be extant, for no signature of process bears the number of the witnesses;—the Lords repelled this reason, and sustained the decreet, and would not call for the testimonies of the witnesses. Another reason insisted on was, that the apprising in question proceeded also upon heritable bonds, bearing requisition; and that the requisition made was null, being made to a pupil, and not to his tutors or curators, either personally, or at the market-cross, by letters of supplement; and albeit the instrument of requisition did bear, “that it was made at the cross to tutors and curators,” yet that was null and unwarrantable without letters of supplement from the Lords, by which only intimations at a cross are effectual. It was answered, 1mo, The defender oppones the decreet in foro, wherein this allegeance was competent and omitted; 2do, There is produced a decreet of registration which supplies the requisition. It was replied to the 1st, That the persons against whom the decreets were obtained being minors, and undefended by tutor or curator, the omission of an advocate cannot exclude the minor to make use of the reasons omitted; to the 2d, The decreet of registration can never supply the requisition, seeing it grants but such execution against the heir, as might have been against his predecessor, subscriber of the bonds, against whom there could be no process until requisition had been used, so neither could they against his heir.
The Lords found the decreet of registration did not supply the requisition, and that the requisition at the market-cross was null, not being by letters of supplement from the Lords, and found the omission of this allegeance could not exclude the minor in his reduction. See Minor.
