Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 14 November 1685
Jean Gray v. Charles Gray
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Mistress Jean Gray having charged her brother Mr Charles Gray, advocate, on his bond of 500 merks, he suspended on this ground, That he had right to a vendition of a ship left him in legacy by his aunt, the Lady Newliston, afterwards spouse to Sir Archibald Primrose, the profits whereof she uplifted, extending to more than the sum charged for; and though the ship was in her name, yet it was to his behoof. The Act being extracted as if the charger's advocates had acknowledged that any right she had to that part of the ship was to her brother's behoof, she by a bill reclaimed against it, and craved that her brother might be obliged to prove his right to that ship.
The Lords refused her petition, in regard, 1mo, The clerks deponed the Act was extracted conform to the minutes. 2do, Her own agent had extracted the Act the same way, and craved circumduction of the term against Mr Charles Gray, suspender, for not proving scripto her intromission, and so had homologated the Act by using it;—though her lawyers' concession and assertion, and her agent's ignorant extracting the Act, should not prejudge her.
But Mr Charles having given in some of her receipts, the Lords refused to repone her against the Act, and sustained his ground of compensation to elide the sum charged for, so far as the discharges extended; and ordained the clerk to calculate and compare the sum in the bond with the receipts; and if they either exceeded or equalled it, then they suspended the letters simpliciter; but if there was an excresce, they decerned pro tanto.
