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 Lady Kilfauns and John Carnegie, her Son, v. The Laird of Kilfauns
Date: 8 February 1707
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The Lady and her son being creditors to Kilfauns in £1000 sterling, and being donatars to his liferent-escheat, they pursue his tenants, in a special declarator, for payment of their rents; who having deponed each upon his own possession, and what he was resting to his master the time of the citation, some of them deponed, That, at their laird's desire, they had become debtor to one of his creditors prior to the citation, and promised to pay him; and which quality was urged as sufficient to assoilyie them.
But the Lords considered, That, if the tenant had either made payment or granted bond, or if decreet had been obtained against him for it, any of these three might have exonered him; but it being only a naked promise, the same might be understood conditional, unless some middle impediment intervene, as the donatar's citation did here; and though it was alleged this would make the tenant twice liable, yet the Lords thought not; and if he were pursued on his promise, his payment to this pursuer as donatar would liberate him. See the like case, marked both by Lord Stair and Dirleton, 11th December 1674, Home and Elphingston against Murray, betwixt an assignee and an arrester.
Others of the tenants deponed, That, since the citation, Blair of Kilfauns had exacted their rents from them, and made them to pay it in to him.
The Lords found this was not bona fide payment, and refused to allow it; but, if the Laird would compear, and allege he had a locality and aliment out of the estate, wherewith the escheat was burdened, they would deduce and allow it out of the first end thereof.
Some of them deponed, they owed half a salmon for their share of a coble-net and liberty of fishing in the water of Tay.
The Lords thought this could be no otherwise cleared than by decerning them once in two years to pay a salmon; and, seeing they could not deliver ipsa corpora for bygones, therefore they modified a merk for the price of the salmon, in regard one of them deponed, that that was the price exacted; though a conventional price with one makes no rule to the rest. Those who deponed on bolls of victual, the fiars of the year were appointed to be produced for regulating that. But the threaves of straw having no certain price, one threave this year being. of more value than two another year, a diligence was granted for liquidating them, if they insisted thereon.
