Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Alison Aitken, and Duncan Robertson, her Husband,
v.
Lillias Aitken, and Patrick Smith, her Husband

1693, 1694, and 1695.

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1693. February 1.—The Lords adhered to the last decreet; but found, that, in the denuding of the right of the executry, Mr Duncan's wife might make her election, whether she would content herself with the 4000 merks contained in the bond of provision given her by the late Bishop of Galloway, her father; or if she would repudiate the provision, and betake herself to her legitim; in which last case, the Lords appointed the auditor to hear them, if she could recur to her legitim, and retain as much in her hands of the executry, till the decision, as the said portion natural would extend to.

Vol. I. Page 552.

1694. February 16.—Arbruchel reported the case of Mr Duncan Robertson and his wife, against Lillias Atken, his goodsister, and Mr Patrick Smith, her husband, in which Mr Duncan gave in a declinator against the President, as he who might lose or gain by a transaction he had made with Mr Patrick, about some arrears of teinds he owed Atken, Bishop of Galloway.

The Lords, on the President's declaration that he had no ease nor composition in that bargain, rejected the declinator; and, in regard the decreet was alleged to be null, as disconform to the minutes and signed interlocutors, they granted warrant to the reporter to call for them from the clerks, and compare with the decreet.

Vol. I. Page 610.

1695. January 9.—The Lords found a disconformity betwixt the decreets, as they were extracted, and the grounds and warrants thereof; and, therefore, opened both the first decreet and the decreet of suspension, and reponed Mr Duncan against them. It was urged by some of the Lords, that the extension of the decerniture was no more than what is usual in extracting of all decreets, that necessary consequences and conclusions, expressly libelled, are taken into the decerniture; and the decreet being clearly warranted as to the first part, ordaining Mr Duncan to denude of the executry, and assign it, could not be opened quoad that, but only as to the second part, decerning him to make count and reckoning, payment and deliverance; which could not take effect till the accounts were closed; and, therefore, they should go on in the said count and reckoning before Newbyth, the auditor. But the Lords thought the nullities sufficient to repone Mr Duncan to all his defences.

Vol. I. Page 656.