Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1687.
Archibald Hyslop's Children v. Robert Currt and Mrs Anderson
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June 21.—The Children of Archibald Hyslop, stationer, give in a petition to the Lords, against Robert Curry, their step-father, craving that the goods and books in their mother's shop and warehouse, (she being now dead,) may be inventaried and sequestrated, till he find caution to make them forthcoming to any that should be found to have best right. And he having alleged, that he could not be thus summarily dispossessed; the Lords refused the bill, there being no process.
Whereupon two actions being raised before the Commissaries against him, and he having advocated, there was a new bill given in against him, bearing, that he had advocated their actions depending against him for exhibition of writs, and for count and reckoning with the inventary of their father's testament, confirmed by their mother, wherein he was cautioner for her, and was embezzling all, and had advocated of purpose to delay, without any pretence of iniquity done: and though, before a process, the Lords would not put him to find caution, yet now it was just: or else craved that they would discuss it summarily.
The Lords ordained him either to find caution, or to answer summarily; and named Castlehill auditor. Vide 3d December 1687.
Vol. I. Page 457.
December 3.—Archibald Hyslop's bairns, mentioned 21st July 1687, gave in a bill against Mistress Anderson, their aunt, bearing, that, in their mother's lifetime, Robert Curry, their step-father, delivered to her a bond of 6000 merks for their use, and in their name; and that she, through collusion, had delivered it back to him since their mother's death, and thereby had prevaricated, and betrayed the trust reposed in her; and so was liable to them in damnum et interesse, if she did not deliver them that bond, seeing quæ dolo desiit possidere pro possessore habetur: and though, in her oath, she adjected this quality, That she took it not from him in these terms, not to give it back to him when he sought it;—that was contrary to the nature of the depositation and trust for their behoof.
The Lords ordained her either to produce the bond, or to be liable for the money.
