Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER LORD FOUNTAINHALL.

George Leith of Threefield, and Others
v.
George Dumbar of Elsleisk

Date: 25 November 1663

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Jo. Dumbar of Moynes, and his son, by their bond, constitute themselves debtors to George Dumbar of Elsleisk, for causes therein contained, in the sum of 18,000 merks. Elsleisk understanding that there was as much addebted to Moynes, his debtor, by George Leith of Threefield, Erskin of Pittodrie, &c. he arrests in their hands; and then pursues them, the debtors, also for their interest, to make arrested goods furthcoming: so that he obtains decreet against them, in anno 1662, ordaining them to make payment to him of the said sum, wherein they were addebted to Dumbar of Moynes. Of this decreet, George Leith of Threefield, with the others decerned, raises a reduction; charging Dumbar of Elsleisk, the clerk of register, and his deputes, to exhibit and produce the said pretended decreet, with the letters of horning, inhibition, arrestment, comprising, or others, if any were raised upon it, with their executions; with all the haill warrants and grounds of the said decreet; to hear and see the same reduced: 1mo, Because the same was given for null defence, and not compearance, they never having been warned personally thereto, by a messenger-at-arms, as behoved to be in all actions for making arrested goods furthcoming; neither was it ever publicly called, for it was put up only in the minute-book. Dumbar of Elsleisk contra Dumbar of Moynes. Patrick Fraser, upon suspicion, compears and gets it scored; and the summons being sent to him, and he finding nothing in it (as he suspected) against Leith of Threefield, or Pittodrie, (who are now pursuers,) he passes from it. In the mean time, a decreet for not reproduction, is put upon the minute-book, thus only—Dumbar of Askleisk against Dumbar of Moynes; whereas, when it is called, they most surreptitiously take out decreet against thir pursuers, who, according to the common order and practique, were in tuto not to compear: the actors, therefore, of such fraud, should be condignly punished, otherwise the lieges cannot be in security. 2do, If they had been summoned, (as they were not,) then they would have alleged, as they do now, that no such decreet could be given out against them; because, long before Elsleisk's arrestment made in their hands, they had paid the money they were owing to Moynes to Thomas Forbes of Auchortes, who had recovered decreet against them to that effect, as his discharge produced by them attests; and so cannot be holden in double payment. 3tio, No decreet could be given against Pittodrie, nor Bracco, because there was never arrestment made in their hands, neither were they ever addebted to Moynes in any sums of money. But if there was any debt resting, or any arrestment made, then it was in their predecessors' times, who deceased long before this pretended decreet; and some person should have been summoned to represent them, which was not done: but albeit it had been done, yet they could not have been holden to have given their oaths upon any arrestment made in their predecessors' hands; that being factum, alienum, and not consisting in their knowledge. 4to, The said decreet is null, because the said Dumbar of Moynes, who became debtor to Elsleisk, being dead, there is no right established in the person of his heir or representative, by obtaining decreet of transferring against him; till which were done, no action nor decreet for making arrested goods furthcoming, could be sustained. And, therefore, the pursuers crave to be reponed in integrum thereagainst, cum omni causa, sicklike as if the same had never been pronounced. For instructing of all which, the pursuers produce the extract of the said pretended decreet which they crave to be reduced.

And the Lords, finding the desire of the summons relevant, ordain the defender's procurators to produce the writs called for; with certification that, if they failyie, the Lords will reduce the writs, and restore the pursuers there-against: and, for satisfying the production, assign them two several terms, whereupon two several acts lying in process were extracted. Both which terms being come, and the production not yet made,—the Lords, because of the said not production, reduced the whole writs called for, except the said decreet produced by the pursuers allenarly, in manner above written.

Act. Pat. Fraser. Alt. James Abernethie. Signet MS. No. 8. folio 3.