Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Murray of Blackbarony v. Alexander Cockburn of Ladykirk
Date: 20 July 1699
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Crossrig reported Murray of Blackbarony against Alexander Cockburn of Ladykirk. Sir Archibald Sinclair having married Ladykirk's sister, who, by a bond of provision from her father, had 9000 merks; which being lost, on a bill to the Parliament in 1690, there is a decreet of tenor making it up; but, over and above the tenor, there is likewise a personal decerniture against this Ladykirk to pay it, without proving the passive titles, or hearing him on any of his defences. Sir Archibald having assigned this bond to Blackbarony for relief of cautionaries, he raises an adjudication against Ladykirk; who founds on a reduction of the decreet of Parliament as null,—1mo. Because the bill craved no more but to make up the tenor of the bond; and yet the decreet had a personal conclusion of payment, which was plainly ultra petita. 2do. Being a private right, it fell under the act salvo jure.
Answered.—The Session could not suspend Parliament-decreets on nullities, but only upon implement or obedience. And, as to the 2d, the act salvo jure could not take place here; seeing it proceeded on a citation.
The Lords saw a great hardship in the case: for, if Ladykirk were reponed, he not only could deny the passive titles, but likewise instruct that Sir Archibald, having been his curator, was debtor to him in more; and which in law reaches an assignee ante rationes redditas. But the Lords declined to meddle, and allowed the adjudication to proceed; leaving him to apply to the Parliament for redress when it shall meet.
