Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Daniel Simpson v. Sir William Bruce and Others
Date: 5 June 1703
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Helen Spence, being infeft in an annualrent of £40 yearly out of the lands of Grangemuir, pursued a poinding of the ground: wherein Sir William Bruce, heritor of the land, compearing, alleged preferable rights to exclude her; and a term being assigned, and accordingly a production made, but the same having been taken up, there was a circumduction pronounced conditionally, allowing if they were reproduced within fourteen days; after which, the decreet of circumduction is extracted, and Daniel Simpson, writer to the signet, having acquired right thereto, and charging thereupon, suspension and reduction is raised thereof at the instance of Sir George Nicholson and Weyms, subsequent heritors, who had purchased the lands from Sir William Bruce; who insisted, on thir reasons, That the decreet was extracted disconform to the minutes, and so was null, there being no minute of the date of the decreet, mentioning that the writs had been once produced and taken up again, but only a simple circumduction; neither is there any decreet put up in the minute-book of that day's date, in December 1687, which is the date of the decreet, as ought to have been And the Lords having ordained the minutes and warrants of the decreet to be produced, and the parties being this day heard thereupon, it was answered for Spence and Simpson,—That their decreet in foro could not be quarrelled now, after sixteen years, in so summary a way: Decreets alleged unwarrantably extracted, and recently quarrelled, may be brought back; but where it is not de recenti, as here, they ought to go on via ordinaria in their reduction.
But the Lords having both the decreet and its whole warrants lying before them, they received and took in the reduction hoc loco incidenter, the production being held fully satisfied; and found the decreet null, seeing it was taken out of the date of the last signature in December 1687; and yet there was no decreet in the minute-book of that day's date; and that it appeared the papers had been once in the clerk's hands: and therefore reponed them against the said decreet, and allowed them yet to produce their writs, and to be heard in the competition for preference, as if they were still in campo, and as if such a decreet had never been extracted; seeing the writs were now given in with their reduction, and lying in the process.
