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.
, The Countess Dowager of Southesk v. The Earl of Southesk and his Tenants;
and
The Earl of Southesk's Tutors v. The Countess Dowager of Southesk
Date: 21 December 1705
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Mary, Countess-dowager of Southesk, sister to the Earl of Lauderdale, being provided to a liferent annuity of 6000 merks per annum, pursues a poinding of the ground. Compearance is made by some of the Earl's tutors, who alleged,—That the pursuer intus habet, having possessed the mains of Kinnaird these several years bygone, and had promiscuous intromission with other parts of the estate: which must be ascribed in payment of her jointure pro tanto; and offered to refer the same to her oath.
Answered,—This was to involve her in a tedious count and reckoning: for any intromissions she had were all ascribable to other causes; either being applied for maintenance of the family for that term wherein her Lord died, or to the carrying on of some levelling and other works begun in her husband's time; and, by the acts of sederunts made by the tutors, she was ordered to perfect them; and she was willing to find caution to refund, if, upon the event of the count, she were found to have received more than she had right to.
The Lords, in respect of her offer of caution, repelled the tutor's defence, and decerned in her poinding of the ground.
There was likewise an action pursued against her, at the instance of some of the Earl her son's tutors, for delivery of his person to them.
Alleged,—It is res hactenus judicata, by which the custody of his person is adjudged to me. Answered,—You must condescend before whom the same was obtained. Replied,—I need say no more but in general terms; and it is enough I condescend in termino.
The reason of their shunning to be more special was, That, by an Act of Privy Council, she was preferred to the custody of her son, and a special condescendence might bring in a debate betwixt two supreme judicatures, How far the Session can cognosce on the justice of the decreets pronounced by the Privy Council, or rescind and alter the same. For avoiding of which interfering, the tutors gave in a petition to the Lords, representing, That my Lord was within a few months of his pupillarity, and that, at his age of fourteen, he was to choose his curators, and it was fit he should be free; and therefore craved he might be sequestrated in some indifferent person's hand, that he might not be wholly influenced by my lady, his mother, in his election; as the Lords had lately done in the case of Joanna Hamilton, daughter to my Lord Bargeny.
Answered,—This demand was irregular; seeing there was a depending process, at their instance, for delivering up his person, where lis erat contestata; and they behoved to prosecute and abide the event of that, and not crave a summary sequestration.
The Lords refused the desire of the bill, in respect of the state of the process, and that only four tutors craved it; whereas there were five on the other side.
