Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Duke of Hamilton v. Mr John Elies of Elieston
1687, 1693, and 1695.
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[See the previous parts of the Report of this Case, Dictionary, p. 9293.]
1687. July 28 and 29.—The Duke of Hamilton against Mr John Elies of Elieston and Sir James Hamilton of Maner-Elieston. This is a reduction which they had raised of the Duke's declarator of non-entry, mentioned 12th March 1684. And they craved to be reponed against that decreet, as pronounced in vacance by three Lords, having a delegation from the rest, without reporting to the whole body. Answered,—The decreet was pronounced in session, and the seeing it extracted was only remitted to these three Lords, who ordered it in vacance.
2do. That the Duke's letter was not considered. The Duke opponed the decreet.
For Squire Hamilton, it was alleged, The decreet was in absence quoad him; for, though there was a bill given in in his name, that was only done by Mr John Elies, and he denied that he was present at Robert Hamilton's deponing. And the execution against him, (being then in Ireland,) does not bear that a copy was left at the market-cross of Edinburgh, and it was not stamped, and so was null. And if he, as apparent heir, was not called, then the whole decreet fell; as was found in the Duke's case with the Lady Callander, l6th July current. The President answered,—These were good objections and nullities against a horning, but not against a citation on a summons.
Then farther alleged, That the decreet was null, because it was not proven when the Squire's father, Sir William Hamilton, died, by whose death the nonentry began. Answered,—It needed not, the heir's being unentered being a negative, proving itself; and it was not denied.
Thir being alleged to turn the decreet into a libel, it was then farther contended, That non-entry is odious, et quœvis probabilis causa excusat. And so, on the 26th of November 1672, in the case of the Earl of Argyle against M'Leod, observed by Stair, the Lords had found, the full maills and duties were only due from the date of reducing M'Leod's retour and seasine, which, as long as it stood, excluded non-entry: and ibid, on the 8th of December 1671, between Black and Elies, the Lords found Elieston's infeftment from the usurpers sufficient to exclude non-entry. And the 12th Act of Parliament, 1661, anent judicial procedure in the English time, excepts the rights of private parties. 2do. Elieston was infeft by the Duke himself; and, though the charter (the warrant of it) was cancelled, yet the Duke's letter allowed him to take seasine; and Robert Hamilton's oath could not take his infeftment from him, being but testis singularis, and not remembering the conditions of the depositation, but only ex auditu, that the Duke said to him they were not fulfilled.
Answered,—Non-entry is much more easy and favourable in our law, than by the feudal customs, where, after year and day, the whole rent was due to the superior on this fictitious contumacy, though he should never interpel nor require the vassal to enter: but, with us, he has nothing but the retoured duty, till he interpel by a citation on a general declarator, That Elieston was a lawyer, and knew his hazard, and could not pretend bona fides, producing the cancelled charter himself, as being in his own hand.
The Chancellor desired to be declined in this cause, as Duke Hamilton's brother-in-law, though he favoured Sir James, as a papist; but the Lords laid over the advising it till November, to the Duke's great dissatisfaction; and recommended to the President to try to agree them in the mean time.
Vol. I. Page 471.
1693. December 20.—The Duke and Duchess of Hamilton against Mr John Elies of Elieston. The Lords found the intimation, made at the Abbey to the Duchess, was sufficient, seeing she was a pursuer, and that the act of sederunt 1682, anent intimating bills of suspension sought on juratory caution, and consigning a disposition of their estate, does not mention the case of a charger's being out of the country; for, if the intimation were to be made to them on sixty days, then the charge against him (being on six or fifteen days,) would elapse long before. And, as to the tenants disclaiming the bill given in in their name, the Lords found, a master or creditor might make use of their debtor or tenant's name; and that the bill ought to proceed, whether they disowned it or not. As to the third, about the year's rent for an entry, and the Duke's bygone intromissions with the rents of Shiells, Greenleyes, &c. the Lords ordained the full year's rent, and bygone non-entry duties, to be consigned in the clerk's hands; deducing the three years' intromission which the Duchess had with the rents, till they be liquidated, either by the Duke's oath, or by the decreet of maills and duties obtained by Elieston against these tenants; whereupon the Duke founded to instruct the yearly rent: and, as to what he did not consign, ordained him, on the passing of this bill of suspension, to find caution; though it was alleged by some, that this was to put the Duke of Hamilton out of possession.
Vol. I. Page 581.
1695. January 16.—Arbruchel reported Ellieses and their husbands against James Hamilton of Aikenhead and the Duchess of Hamilton, who had a decreet of declarator for the maills and duties of thir lands, holden of the Duchess, and whereof the rests were assigned to the deceased Mr John Ellies, and now fell to his daughters.
The Lords found the assignation, being posterior to the citation of non-entry, whereon a decreet followed for thir very rents, the superior was preferable to such an assignee or singular successor. But, in regard the same was not all uplifted out of the lands holden of the Duchess; therefore, the Lords ordained them to be proportioned accordingly as they were actually uplifted; and, if that cannot appear, then conform to the value of their respective lands. The Lords confessed this preference of the superior was durum; sed ita lex scripta est, till these feudal delinquencies be rectified.
