Scottish Court of Session Decisions

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

William Baxter and William Blaikwood
v.
Andrew Lamb of Southcarrie

Date: 16 December 1663

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Mr. Andrew Lamb, Bishop of Galloway, at London, in November, 1623, borrows from William Kilmennie, merchant, residenter at London, 500 merks Scots; and because it was by Patrick Baxter, merchant-burgess and bailie in Edinburgh, his order, he got it, he grants him his bond of the same. In 1646, Patrick Baxter dies, and his son, William Baxter, serves and retours himself heir to his father; then charges Andrew Lamb of Southcarrie, oy and apparent heir to the said Andrew, Bishop of Galloway, granter of the bond, to enter heir to his father and grandfather, within forty days, &c.; then pursues him, in anno 1658, as lawfully charged to enter heir, to hear and see decreet given against him, decerning him to make payment of the said sum to the pursuer. Compears Mr. Andrew Gilmor, as procurator for the pursuer, and declares, that he insists against the said [defender,] as lawfully charged to enter heir to his goodsire and father; and that, pro loco et tempore, he passes from the remaining passive titles libelled; as successor titulo lucrativo post, &c. as executor, as behaving as heir, &c.; and for instructing the summons, produces William Baxter's service to his father; then the bond; then the letters of general charge.

Compears Mr. Peter Wedderburne, as procurator for the defender, and alleges, he cannot be convened as lawfully charged to enter heir; because he was content to renounce to be heir to them, with all benefit that might accresce to him thereby, in favours of the pursuer. Which exception the commissioners for administration of justice finding relevant, they assign him a day to produce a valid renunciation in favours of the pursuer; or with certification, that if he failyied, the term should be circumduced against, him, and decreet given conform to the desire of the summons. At the term assigned, Mr. Peter produces a renunciation subscribed by the said Andrew Lamb. It was objected, that it could not be respected as valid, because not subscribed by his curators, he being a minor. For which reason the said commissioners finding it not valid, they circumduced the term, and gave out a decreet in favours of the pursuer. Conform to this decreet, in 1662, William Baxter, and William Blaikwood, as assignees constituted thereto by the said W. Baxter, charge the said Andrew Lamb of Southcarrie, to pay the debt contained in the said decreet. This charge he suspends, on this reason, that he has consigned in Sir William Bruce, clerk to the bills, his hand, a sufficient and valid renunciation, subscribed by him and his curators; in respect whereof, no execution can follow on that pretended decreet. 2do, To show how ready and willing he is to procure to the said chargers, payment of their said debt, he has obtained a declaration under Jo. Ouchterlonie of Guind, his hand, declaring, That though he has decreet of adjudication of the lands of Southcarrie, for sums addebted to him; and that the said William Baxter has not done diligence against the lands of Southcarrie, by craving adjudication of the same, within year and day of his adjudication, as is prescribed by the act of parliament betwixt debtor and creditor; yet he is content to take him pari passu with him, effeiring to his sum. It is subscribed by two witnesses. Which two reasons of suspension, to wit, the renunciation produced, with the said Ouchterlonie's declaration, the Lords having well considered, they turn the decreet in anno 1658 in a libel, and assoilyie the said Andrew Lamb (upon the protestation of his procurators to that effect) from the haill points and articles thereof. Yet decern him to obey the said letters (upon protestation of the pursuers' procurators to that effect) cognitionis causa tantum; to the effect, the chargers may have action and process against hereditatem jacentem et bona mobilia, and whatsoever other goods and gear would have appertained to the said suspender, in case he had not renounced to have been heir. Item, Ordain the said Ouchterlonie to take in thir chargers with him pari passu, conform to his declaration. Item, Reserve to the suspender, his action of reduction, in so far as they have sustained the letters against him.

And whereas it was alleged by the charger's advocate, that to produce a valid renunciation now, was not time, seeing res non erat amplius integra, by reason of decreets recovered against the suspender: it was duplied, that they opponed the former reason of suspension; and that the charger, by their consent, should have all real execution he pleased.

Susp. Sir Geo. Lockart, Mr. George Mackeinzie. Alt. Mr. Rodger Hog. Signet MS. No. 39, folio 13.