A defender being found liable by an interlocutor which was laid open on a reclaiming bill, and thereafter a new topic insisted on as relevant to subject him, whereupon he was assoilzied without reviewing the former interlocutor, the decree was opened to the effect of reviewing it, and determining how far it ought to be adhered to or altered.
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George Christie, tenant in Kinglassie, purchased the lands of Auchmuir, and took the rights to himself in liferent, and to George and William his two sons equally in fee. After which he acquired the feu-duties of the lands of Kynninmound, which he took to himself in liferent, and to William in fee; and on this, in virtue of powers reserved, he disponed the lands of Auchmuir to his son George; but this deed, which was written by William, wanted witnesses.
Upon George the father's death, and the observation of the defect, a declaration was obtained from William, that he should never quarrel his father's settlement; but this wanted the writer's name and designation.
The matter came to a plea between George the son's daughters, and their uncle William, in which it was referred to his oath, if he had not signed the declaration, to which he deponed affirmative; and also, if he had not promised never to quarrel his father's disposition; to which he deponed, “He knew his father's intention, that his brother should succeed to the whole lands, which he promised to implement; but he was also assured their father intended there should be mutual tailzies betwixt them, failing heirs-male of their bodies; and that he made the said promise only on condition of the said intended tailzie.”
The Lords found the promise proved, and the quality extrinsic; but this being opened on a petition, the matter was never determined, and the cause taken up on another point, in which the defender prevailed, and was assoilzied; and of this decreet in foro a reduction was brought on this ground, that the interlocutor by which the defender was found liable, stood yet unreversed; and the pursuers having only failed prevailing on another topic, he ought not to have been assoilzied.
“The Lords, 6th November 1744, upon report of the Lord Tinwald, in respect it appeared from the extract of the decreet under reduction, that by interlocutor, 12th January 1725, it was found proved by the defender's oath, that he promised to fulfil and implement his father's disposition or destination to his brother, notwithstanding of any informality therein, and not to quarrel or impugn the said nullity; as also, That he promised and offered to renounce his right to the lands in question; and that the quality adjected to his oath was found extrinsic; and albeit the defender reclaimed against this judgment, and, upon a deliverance, before answer, was examined before two Ordinaries, and again ordained to be re-examined before the Lords in presence; yet no judgment was given on these proceedings, but the cause taken up on a different medium, and to a different effect not relative to the foresaid interlocutor; and that the defender was assoilzied only in consequence of advising the proofs and debate upon this last part of the proceedings; and in respect it was not denied the pursuers of the reduction were then minors, found the reasons of reduction relevant to lay open the decreet ad hunc effectum, to hear parties how far the foresaid interlocutor; ought to be altered or adhered to, upon the facts and circumstances alleged in the said decreet, and the proceedings had in consequence of the reclaiming petition against the said interlocutor but declared, that the rest of the interlocutors in the foresaid decreet were to stand tanquam res hactenus judicata.” And this day, they “refused a reclaiming bill, and adhered.”
Act. W. Grant.Alt. L. Craigie & Scrimgeour.Clerk, Kirkpatrick.
D. Falconer, v. 1. p. 29.
