Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1685 and 1688.
William Seton v. Sir Evan Cameron of Lochiel
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1685. January 10.—William Seton, one of the King's Guard, gives in a bill to the Lords of Session, as commissioners of Argyle's forfeiture, against Sir Evan Cameron of Lochiell; bearing that, where Sir Evan being creditor to Argyle in 5000 merks, he had discovered to them that he was likewise debtor to the said late Earl in a greater sum than that 5000 merks; and, as a reward of his discovery, he had got an act of the Lords, impowering him to retain and pay himself of the said 5000 merks in his own hands; but the Lords gave William Seton, the pursuer, another creditor of Argyle's in 6000 merks, a right to the superplus of what Lochiel owed Argyle, more than paid himself for his locality; and yet Lochiel was now shifting, and refusing to declare what more he was owing than the sum allocated to himself, and was going out of the kingdom to New-Jersey, and disponing his estate to his son; and so would defraud the said William: and therefore craved he might be cited to depone on what more he was debtor than paid himself, or else to be holden as confessed.
The Lords summarily granted the desire of the bill, and ordained one of the macers to cite him to compear before them as commissioners, and depone. Lochiel gave in a counter-bill, alleging he could not be so convened hoc ordine, but viâ ordinariâ by a summons.
Vol. I. Page 330.
1688. February 8.—Captain William Seton, craving the extract of his decreet of locality as a creditor of Argyle's, whereby the Lords gave him 5000 merks owing to Argyle by Sir Evan Cameron of Lochiel, which he had discovered himself; and the haill being 10,000 merks, Lochiel got the half of it, in præmium indicinæ. The Duke of Gordon having also a right to this sum, the King, by his letter, required the Duke to give Lochiel a discharge of it; whereon Lochiel founded a defence against William Seton. Answered,—There is a jus quæsitum to him by his locality, which a posterior letter upon misrepresentation could not take from him; and, they being socii in this sum, Lochiel could do no deed to prejudge his colleague.
The Lords, considering that they were only the King's commissioners in this case, to distribute Argyle's estate as he should direct them, he might recal what they had done; and therefore appointed Kemnay and Edmonston to prepare a letter to be sent from the whole Lords to the King, to know his Majesty's pleasure, to whom he would give it; containing a representation of the debate for either party, and their rights. Vide 2d June 1688.
Vol. I. Page 496.
1688. June 2.—A letter is produced from the King, in favours of Sir Evan Cameron of Lochiell, procured by Robert Barclay, his good-brother, and Pen, the Quakers, against Captain William Seton, mentioned 8th February last, discharging Lochiell of that debt. Which annulled William's decreet, and was said, by the King's advocate himself, to be against property. But others alleged, the Lords, in the commission dividing Argyle's forfeiture, were but the King's factors and trustees; and so he might ratify or recal what they did at his pleasure.
