Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Date: The Marquis of Douglas
v.
M'Doual of Freugh
7 June 1698 Click here to view a pdf copy of this documet : PDF Copy
Lord Northberwick also reported the Marquis of Douglas, as donatar to the Viscount of Dundee, Graham of Claverhouse's forfeiture, against M'Doual of Freugh, one of the creditors, to accept of a locality of land effeiring to his sum; conform to the 24th Act of Parliament, 1696. Against which pursuit thir three dilators were proponed: 1mo. The sentence of doom and forfeiture, which is his active title, is not produced; 2do. No process, because all parties having interest are not called, viz. the other creditors, who may quarrel his allocation, and say it was res inter alios acta as to them; and they are appointed by the foresaid Act of Parliament to be called; and this process being succedaneous, in place of roups of bankrupt estates, (seeing forfeited estates cannot be so exposed,) they must have the same formalities. 3tio. Neither the rental nor the holding of the lands are libelled, without which no locality can be settled.
It was replied for the Marquis, to the first, That the doom is standing in the public records of Parliament, and is notour, and has been acknowledged by the defender himself; and the Marquis's charter and seasine on the King's gift, given out in process, is a sufficient title: To the second, Donatars cannot know all the creditors; and, when the fund is sufficient to pay them all, there can neither be hazard nor prejudice; likeas, he has convened the rest of the creditors to the same effect, to give them off land, in a separate process, which is also in the roll to be called: To the third, The Marquis has an exhibition depending for the evidents of the lands, without which he could not well know the rental or holding.
The Lords repelled the first dilator: and, as to the second, Thought all the creditors should be brought into the field; but, seeing the other process was ready, the Lords conjoined them, and so repelled the second, in respect of the answer: and, as to the third, Found the rental ought to have been libelled; but, being on a new Act of Parliament, they would not cast the process on such an error and informality, but allowed the pursuer to rectify and amend his libel, by giving out a condescendence of the rental; and allowed either party a mutual probation thereupon.
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