Judicial Steps, how far under the Power of Parties, to be retracted, altered, or amended.
Lord Pitmedden v. Reid of Bara
Date: 22 December 1685 Case No. No 280.
Where a cause had been remitted by the Lords to some of their number, to settle be tween the parties, the pursuer was found at liberty to pass from thee instance simpliciter.
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The case of Lord Pitmedden, and Reid of Bara, is reported by Lord Carse, viz. If the backbond given by my Lord Winton, which declared he had taken the gift of the ward and marriage of Seton of Pitmedden, to the behoof of the apparent heir, with this express condition, providing he followed his advice, was null; because the heir, Pitmedden's elder brother, contravened the quality, in putting out Wanton's Chamberlain, uplifting the rents himself, and chusing other curators; and when he was major, in selling his lands very cheap to this Reid of Bara's father, who was his Writer and Procurator in Aberdeen? The intent of this declarator is, that the backbond being put out of the way as forfeited and contravened, the lands which Pitmedden's brother sold to Bara, may be burdened with a proportional part of the ward and avail of the marriage, as being onus reale et debitum fundi, only to this effect, that this liquidation may make up a competent price of these lands he acquired so cheaply and fraudulently from his brother. Alleged, The backbond declaring Winton's gift to be for the apparent heir's behoof, Winton could adject no quality in his own favour, the right of those casualties being the heir's. 2do, It is not conceived irritanter et resolutive. Answered to the first, Winton having given this backbond ex gratia, he might clog his donation with what qualities he pleased. 2do, It being in eodem corpore with the declaration of trust, you cannot pro parte approbare et reprobare, but you have already used and accepted it. To the second, Though it be not under an irritant clause, yet it is implied in the nature of a writ, that if you fail, I shall be free.
This being reported, some of the Lords inclined to ordain trial to be taken, before answer of the contraventions; but it was recommended to some of their number, to try what was the real worth of the lands, and what Bara paid for them, and to report, or else to endeavour to settle them. And the Lords, to whom it was referred, having determined Pitmedden to get L. 150 Sterling, and to give a discharge and ratification of Bara's rights, he refused to ratify, in respect he had more to claim. Whereupon Bara gave in a bill, craving the cause may be advised. Pitmedden declared he passed from the pursuit. Answered, He cannot do it now by the act of sederunt, it lying at a report, and being a common process. Replied, He was content to pass from this instance simpliciter, and the tear the summons, &c. And that Lord Boyne was suffered to lift his process against Arthur Forbes of Balveny; and Yester his process against Lauderdale. The Lords allowed Pitmedden to pass from his process.
Fol. Dic. v. 2. p. 196. Fountainhall, v. 1. p. 387.
