Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1683 and 1684.
Lancelot Cathcart and - Carleton v. Janet Ramsay and Arthur M'Gill of Kenback
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1683. March 13.—In Cathcart and Carleton's action against Janet Ramsay and Mr Arthur Macgill of Kenback, for the jewels;—the Lords, on Pitmedden's report, adhered to a former interlocutor; and find still, that the executors of Colonel Cunningham, the husband, have good right to pursue for the exhibition of the jewels, without prejudice to the executors of his wife to pursue for her third, and the paraphernalia, as accords of the law. And find, That John Ramsay ought to have called the nearest of kin to his decreet of exoneration; and that, they not being called, the said decreet does not exoner him. And find, that John Ramsay is liable upon the trust, notwithstanding of the allegeance that Mr Robert Byers was conjunct trustee with him; and that in respect of the bond bearing John Ramsay to be the depositor, and his not doing diligence against Byers debito tempore, for recovering of them. And find, That John Ramsay, as executor-creditor to Colonel Cunningham, has right to affect the jewels and writs, to the value of the debts owing to him; and allow the pursuers to be heard against the valuation of the jewels made in favours of John Ramsay, in his confirmed testament. Vide I. 1. § 25, et seq. D. Depositi.
Then, on the J 6th of March, a hearing in presence being granted upon the consignation of these jewels in the clerk's hands, and their act for giving them up, the Lords adhered to their interlocutor of the 13th of March, but recommended to the parties to agree.
So that, by this, they find, that the voluntary consignation John Ramsay made of the jewels in their clerk's hands, was not the habile way to liberate him from being accountable for them; all such consignations being periculo consignantis, and the Lords not being appointed for such ends: and that he must be liable for them, though they were given up in 1678, by an act of the Lords; seeing Edmonston, who got them up, was not the right person.
This stumbled many, as a hard interlocutor. See 29th March 1683.
Vol. I. Page 224.
1683. March 29.—The case between Cathcart and Kenback, mentioned the 13th current, being reported by Pitmedden;—the Lords ordain both parties to prove the following points c—the defenders, That the Cathcarts, cited by John Ramsay to his decreet of exoneration, were Colonel Cunningham's nearest of kin: and thir pursuers to prove their contingency, and that they are truly his nearest of kin; and that the Cathcarts called by him were dead before that. And allowed a conjunct probation to both parties, as to the value of the jewels, and directed a commission to Ireland, for trying the above mentioned points.
Then, upon a new bill, the Lords, 31st March 1683, refused to grant commission to Ireland, for proving the value of the jewels, but allowed the value to be proved only in Scotland; and granted commission to either party. To the pursuers, to prove their own propinquity of blood: and the defenders to prove the persons' propinquity to the Colonel, who are called in their decreet; as likewise for proving the time of the mother's death, and if the Colonel's son out-lived his mother. And, for that effect, recommend to Arthur, Lord Viscount of Granard, to receive the oaths and depositions of such famous witnesses as shall be adduced before him, for proving the points above mentioned.
Vol. I. Page 230.
1684. March 5.—Lancelot Carleton's probation led against Janet Ramsay and Mr Arthur M'Gill, her husband, in the case mentioned 29th March 1683, was advised; and the Lords found Carleton's wife, and the other pursuers, their proximity of blood to umquhile Colonel Cunningham who impignorated the jewels, proven, &c.
Vol. I. Page 279.
1684. March 26.—Mr Arthur M'Gill of Kenback gives in a bill against Mr Carleton and the Cathcarts, mentioned 5th March 1684; representing that Colonel Cunningham, to whom they were confirmed executors, was owing John Ramsay, from whom he had right, a considerable sum of money, for which he had raised a process against them; and, they being strangers dwelling extra regnum, it was just they should find caution judicio sisti et judicatum solvi in his reconvention, in case he prevailed; that, by their withdrawing, his action might not be rendered elusory and ineffectual.
The Lords would not grant the desire of this bill. See Dury, 9th February 1628, Kirlchead.
Vol. I. Page 285.
1684. December 11.—In Carleton's action against Janet Ramsay and Mr Arthur M'Gill, mentioned 5th March 1684,—The Lords advised the last point of this process, anent the jewels abstracted by Mr Robert Byres; and found it was a casus fortuitus on John Ramsay's part, and that he did sufficient diligence for recovery thereof; and therefore assoilyied him from restitution of the same.
