[1686] 3 Brn 602
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
1685 and 1686 .Margaret Nairn
v.
The Lady Nairn
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See the first part of the report of this case, Dictionary, p. 13,256.
1685. December 1.—A bill was given in by the Lady Nairn, for stopping the decreet pronounced against lier, in favours of Margaret Nairn, as mentioned 9th December 1684, for payment of 22,000 merks, contained in her father's bond; on this reason, that my Lord Athole, her father-in-law, was absent, and that, being now 12 years old, she was not yet authorised with curators, for which a competent time behoved to be granted her.
The Lords, on thir pretences, superseded extract till the 1st of January. Vide 18th February 1686.
1686. February 18.—Margaret Nairn, Muckarsie's daughter, pursues the Lady Nairn for 22,000 merks, contained in my Lord Nairn's heritable bond. Alleged,—This security was relative to a bond of tailyie made by Muckar-sie, which had this quality, that, if any of his two daughters died, then her portion should divide thus: viz.—6000 merks to his brother Greenyards; 2000 merks to his other brother Strathurd, and the other 2000 merks to the sur-viving sister; so it is, one of the sisters is dead. Answered,—My Lord Nairn's bond is simple and absolute, and bears no relation to that tailyie, which was reprobated on all hands as done in lecto. Replied,—It must be presumed to be correspective, because it is for the same sum, inter easdem personas, and the same terms of payment.
The President inclined to cause the pursuer find caution, to secure the Lady Nairn against that tailyie and Greenyards's claim; but, because there was only a copy of the tailyie lying in process, the Lords, on a bill, allowed the Lady Nairn a diligence to the 15th of March, against George Dallas, or other havers, to recover it. Vide 18th November 1686.
1686. March 24. —The case of the Lady Nairn against Lady Muckarsay being reported by Boyne, the Lords found, seeing her husband now concurs, the process must go on; though his name was not ab initio in the summons; but that the license to pursue was not sufficient, without a decreet dative were also produced.
1686. November 18. —Margaret Nairn, Muckarsie's daughter, pursues the Lady Nairn for payment of 22,000 merks, as mentioned 18th February 1686. Alleged,—By the pursuer's father's tailyie, 6000 merks of this were provided to return to Greenyards, his brother, if any of his own two daughters died j and one of them is dead. Answered,—Strathurd did not regard that tailyie, which he knew was on deathbed, but granted a simple bond, noway relative thereto; and, actu geminato, reiterated it by a bond of corroboration.
This being advised, the Lords repelled the allegeance proponed for the Lady Nairn, defender, and the declarator raised by her quoad the sum of 2000 merks, which, by the bond of tailyie, was to return to my Lord Nairn himself; as to which, they found him excluded by the new security he had given: but sustained the declarator to this effect, that the pursuer shall be holden and obliged to warrant and relieve the defender of the sum of 6000 merks, in case Greenvards his children shall prevail for the same: and therefore decerned for the
whole sum of 22,000 merks libelled, and the annualrents thereof; the pursuer, upon payment, being obliged to warrant the defender at the hands of Greenyards' children, as to the said 6000 merks, in case they shall distress her for the same; reserving always to the pursuer, action of reduction of the said bond of tailyie, ex capite lecti, or otherwise, as accords; and in case of reducing it, the warrandice to cease. Vide 8th December 1686. 1686. December 8. —The Lady Nairn gives in a bill, craving the Lords may stop extracting of the decreet given against her, 18th November 1686, till she be secured by a reduction of the tailyie against Greenyards, quoad the 6000 merks; and craving, quoad the other 16,000 merks, that execution may be superseded till Whitsunday, it not being easy to raise such a sum between terms.
The Lords ordained decreet to go out; but sisted execution for the 6000 merks till the event of the reduction, and recommended to Carse to deal with them to supersede the 16,000 merks till Whitsunday next; the bygone annual-rents being always first paid.
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