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Scottish Court of Session Decisions >>
Rig of Carberry v His Creditors. [1663] Mor 496 (30 January 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor0200496-030.html Cite as:
[1663] Mor 496
Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due ex mora.
Rig of Carberry v. His Creditors
Date: 30 January 1663 Case No. No 30.
A charge and denunciation having past upon a decree, which was thereafter suspensed and restricted to a less sum; annualrent was, notwithstanding, found due on the restricted sum, denounciation having passed.
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The creditors of Carberry having obtained a decreet against Carberry, and denounced him thereupon, pursue for annualrent since the denunciation, conform to the act of Parliament thereanent.—The defender alleged absolvitor; first, because the horning was manifestly null, he being denounced in the name of Richard the usurper, after he was out of his pretended authority, 2do, Because the decreet being suspended, a fifth or sixth part thereof was taken away. 3tio, The denuciation was not at the cross of the regality of Musselburgh, where he dwells, but at Edinburgh. 4to, Before the denunciation he had given in a bill of suspension, whereupon there was a deliverance given, superceding execution, till the bill were seen and answered; in the mean time these pursuers getting the bill to see, proceeded to denounce.—The pursuers answered to the first, That it was notour, and attested by the keeper of the signet, that Richard was repute in Scotland, to be in his authority till the 18th of May 1659, till which the signet was open, and many letters past in his name; and this denunciation was upon the sixth of May, and the charge in April.
In respect whereof, the Lords repelled to first defence; they repelled also the second defence, as to the annualrent of what was found due by the last decreet; they repelled the third defence, because the usurper had cried down regalities; and found the fourth defence relevant, scripto vel juramento, viz. That there was a deliverance stopping execution the time of the denunciation.
