Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 26 November 1686
The Creditors of the Duke of Lauderdale v. The Earl of Lauderdale and Lady Yester
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The case of the Creditors of the Duke of Lauderdale, against the Earl of Lauderdale, and Lady Yester, his heirs of line and tailyie, is heard in presence. The creditors are constituting their debts, in order to adjudge, within year and day, of Lady Yester's adjudication. She opposed it, to cast them without year and day; and objected against the grounds of their debt:—1mo, Against Niddry's bond, that his assignation from his father was not intimated in his father's lifetime; and so it was still in bonis defuncti. 2do, It was vitiated on the back, two lines being delete, which might have been a discharge. 3tio, It was transferred to Sir William Sharp, who was or might have been paid by his tack.
Answered,—They would adjudge on their peril, and all their objections will be reserved entire, till the competition for the maills and duties: and the scoring on the back has been only a note of its registration, and it has been taken out again. 2do, Non relevat that Sir William might have been paid, unless they will instantly verify that he was actually paid: for it was not just, when I am in cursu diligentiæ, that you, who are the heir of line, and have a prior adjudication, should retard me, to prefer your own, and engage me in a tedious count and reckoning: and that whatever is not instantly verified should be reserved, as accords.—Which the Lords found just, and sustained.
Then, 2do, Alleged,—The Duke of Lauderdale's bond of relief to his brother, now Earl, can be no present ground of debt, without distress or payment. Answered,—It is not a common clause of relief, but a bond apart, obliging to pay and relieve betwixt and a prefixed day. Replied,—That should be declared by a sentence. Duplied,—This summons is alternative, either to pay or relieve.
The President moved, What if the principal debtor should pay it in to the cautioner? How is his land relieved and disburdened, if he should not apply it? It was offered, that it should lie in the clerk's hands for that use.
3tio, Alleged,—The bygone annualrents appear to be paid by Sir William Sharp's counts, now produced. Answered,—His declaration is good against himself, for his own debts, but not for others.
The Lords allowed them to adjudge for what bygone annuals they pleased; but with this declaration, seeing Yester produced such evidence as induced semiplenam probationem, if it should be afterwards found that they had adjudged for more than was due, it should not save them, in order to restrict it to what was truly resting, but should be null in totum.
Against which, it was alleged,—That, this adjudication containing sundry creditors' debts, such an error could prejudge none but him that committed it; nam quoi articuli tot libelli.
The Lords declared it should only annul that creditor's sum.
Then the creditors pressing that the Lady might give in a renunciation presently, seeing she had renounced to her own children already; the Lords gave her ten days, seeing her former renunciation was not general; and that they might take out their adjudication against the heir-male, (seeing he had renounced the benefit of discussing the heir of line first,) without the heir of line's renunciation : and ordained the decreet against him to be of the date of the first pronouncing; that so they might, at least quoad him, be within year and day, of the first adjudger.
