Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Robert Baird of Saughtonhall, v. Morison of Prestongrange
1693.
February16,and
November29.
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The Lords thought, the presumption adduced by Sir Robert, that this was not the bond on which the comprising was led, was elided by the contrary presumptions, especially by Barberson's ratification: and the President and others inclined not to annul, but to lay open Prestongrange's apprising on that head, that his author had comprised for more than was due,—viz. for the penalty, which was not contained in the decreet of suspension: though some argued, that the letters having been found orderly proceeded for the principal sum and annualrents, and nothing mentioned of the penalty, and he not being assoilyied therefrom, the suspension did not hinder real diligence, by adjudication, for the same; and that the Lords might yet advise whether it was due or not. And, before answer to that nullity against the inhibition, that it was only served on a general charge to enter heir, which can be no sufficient ground nor foundation for an inhibition:
The Lords, before answer, ordained the inhibition and general charge to be produced, that they might see if it contained any special sum, and then to sus tain it, as was done in 1684, between the Lord Ballenden and the creditors of Preston against Arniston; but if it proceeded only on a general narrative, without a special sum, then to find it null. In this case was also cited, the decision in I690, Sir James Cockburn and Bonhard, against Sir Walter Seton, &c.
Vol. I. Page 561.
November 29.—Sir Robert Baird's reduction of Morison of Prestongrange's right on the lands of Daupbington was debated and decided. The nullities were:—That the bond mentioned in David Wilkie's apprising, as granted by Mr George Barber to him, bore to be registered in the Commissioners' books, for administration of justice, in 1652; at which time the principals were given back: and extracts did not prove: whereas the bond now produced as the ground and warrant of that apprising, was registered in 1650; and, havingsearched the registers that year, they cannot find the principal bond. Likeas, this extract produced does not bind Mr George himself, but only his heirs.
Answered.—All this is but a mere mistake of the writer of the extract; for the parties, the sum, the term of payment, and all are the same and agree; unless they allege there was another bond. And there was a probable reason for this mistake; seeing there was another bond of a different sum registered in 1654.
The second nullity was, that the comprising was led against Mr George Barber, who was only liferenter of the lands; whereas his son was fiar.
Answered,—The father had a faculty to revoke and alter the fee at hus pleasure.
Replied.—That was personal, and not comprisable by a creditor, and could not accresce to them.
The third nullity was, that the comprising was led for more than was due, he being decerned for the penalty of the bond; whereas the decreet of suspension finds the letters orderly proceeded only for the principal sum and annualrent, without the penalty. Answered.—It does not assoilyie from the penalty, nor suspend the letters quoad that; and so it was still due.
The pursuers first insisted to have the comprising annulled on thir grounds complexly; but afterwards declared they only used them to restrict the comprising and cut off’ the legal.
Some of the Lords thought lesser nullities than thir had opened comprisings. But the plurality, considering that this was no more a competition between two creditors, but that the lands had been bought on this right, and transmitted through four or five several hands, and each had made improvements, looking on themselves as proprietors irredeemable; therefore they repelled the haill nullities, and did not find them so much as sufficient to restrict the comprising; seeing the note of the registration seemed only to be an error of the writer, and that the faculty was apprisable, and that the decreet of suspension did not liberate them from the penalty, though it spoke nothing of it.
