Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 30 November 1687
Erskine of Alva and Stirling of Airdoch v. George Ramsay
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The case of Erskine of Alva and Stirling of Airdoch against Major George Ramsay, was reported by Kemnay. Sir Alexander Hope of Granton having given his Lady, Dame Anna Bill, a disposition to his moveables, it was quarrelled by thir legatars of Sir Alexander's, as donatio inter virum et uxorem, and revoked by his posterior testament leaving thir legacies. The Major, as assignee to the Lady, for fortifying it, offered to prove it depended on this onerous cause, that Sir Alexander got £2800 sterling of tocher with her, out of the Chamber of London. And a commission having been granted for proving it, the term was circumduced, and decreet given: which was suspended on this reason, that, the commission being directed in 1684, they could not then get it executed, because, the King having issued out his writ of quo warranto against the city of London's charter, it was declared void, by the Lord Chief-justice Sanders, and there was no access to their writs and archives; and so they were not in culpa aut mora; and it was only an act before answer. Replied, —The onerous cause was admitted only to be proven by a writ under Sir Alexander's own hand, and not by extrinsic records, as recognizances, and statute staple, which are not probative with us; but the Lords had reserved to themselves to consider what these should operate.
The Lords, on Kemnay's report, turned the decreet into a libel, and reponed the defenders, they paying £40 of expenses for that decreet; and renewed the commission to London, to be reported against the 10th of January next.
