Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Drummond of Ricartoun v. Sir William Nicolson of that ilk, and His Creditors
Date: 5 January 1697
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In an action at Drummond of Ricartoun's instance against Sir William Nicolson of that ilk, and his Creditors, for proving, that, though he was bound coprincipal with him in a bond, yet he was but truly cautioner; and that, a little before Sir William's death, he had ordered the drawing a bond of relief, and was satisfied with it, but prevented, by his falling distracted; and so it was not gotten signed; and which he had proven by the communers, witnesses, and writer.
Alleged for the Creditors,—That the heir being dead, he who now fell to be apparent heir must be called, ere the process can go on.
Answered,—The Creditors are the only true Contradictors now, the estate being rouped.
The Lords ordained the heir to be cited incidenter in this state of the process, ere they would proceed to advise it. And it may have difficulty how such -a point can be made out by witnesses; for though it be pregnant against Sir William's heirs, that he acknowledged Ricartoun was only cautioner, and that the communers depone he was willing to give him a bond of relief, yet it seems hard to make such a probation meet the creditors, having been only taken by the Lords ex officio, and before answer, without determining the relevancy, and what it should import, being more than a nuda emissio verborum, which used not to be allowed to be probable by witnesses.
