Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Carstairs of Kinneuchar v. Sir John Ramsay of Whitehill
1692 and
1693.
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1692. Dec. 22.—The Lords sustained Kilconquhair's declarator, and found it not jus tertii to him to propone; but that it was all one as if lie should allege that Sir John's comprising was satisfied, paid and extinct within the years of the legal, by intromission with the means of the common debtor, which is certainly relevant; and that he might allege it, though he transacted with Sir John Ramsay, and acquired his said comprising, and had given him security for 38,000 merks for the same; seeing, when he comes to defend himself by that comprising, against other posterior creditors, they may say it is extinct by satisfaction in the person of Sir John Ramsay, your author, before he was denuded in your favours. Some of the Lords were against declaring presently, but to reserve it as a ground of recourse of warrandice against Sir John, in case Kinneucliar should afterwards be distressed, or that comprising quarrelled upon that ground.
Vol. I. page 536.
1693. Febuary 9.—The Lords found that even Carstairs had interest to propone this allegeance, that you are paid by intromission with rents of houses belonging to the common debtor; and that, when I came to use the adjudications you have disponed to me, the creditors will object extinction by your's, my author's, intromission foresaid. Yet sundry of the Lords thought this was no ground to cause Sir John presently count and reckon with him, to deduce off Kilconquhar's bond of 38,000 merks, but was only a ground whereon he should be obliged to warrant him in case of distress. But the Lords adhered to their interlocutor of the 22d December last.
