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William Hay of Drumalziar v John, Earl of Twedale, his Brother. [1678] 3 Brn 220 (00 January 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Brn030220-0289.html Cite as:
[1678] 3 Brn 220
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
William Hay of Drumalziar v. John, Earl of Twedale, his Brother
1676,
1677, and 1678.
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1676.July.—William Hay of Drumalziar pursues John, Earl of Twedale, his consanguinean brother, to warrant to him some lands, as heir-general, whereon had followed distress and eviction; item, to relieve him of sundry debts, and to purge incumbrances, which he condescended on as lying on his lands.
Alleged,—He had no title, not being served heir of the second marriage. Answered,—He would do that cum processu. Replied,—His active title behoved to be established before he raised his process, else it was filius ante patrem. Vide supra, February 1674, Duke and Duchess of Hamilton against Mr Gavin Loudon, No. 441.
The Lords found he might serve cum processu, though it was a part of his active title.
Advocates' MS. No. 490, folio 257.
1677.February23.—In William Hay of Drumalzier's action against his brother, the Earl of Twedale;—the Lords sustained Twedale's defence of having alimented him, &c.
Advocates' MS. No. 550,§ 1, folio 277.
1677.July19.—This day, Drumailziar and his brother the Earl of Twedale's cause, was debated anent the Earl's relieving him of the debts, he being bound to warrant Drumailziar's infeftment.
Answered, 1mo, There is no distress; and it is a lewd wantonness and caprice to crave relief before distress, by which anticipation he hounds out other creditors on my Lord. 2do, Drumailziar, for making up his title in this pursuit, being served heir of provision to the father, (vide supra, num. 490 and 550,) he cannot pursue, because the obligation is extinct and confounded. And there was no rational or legal way of securing the provision he got from his father, from his father's posterior debts, but by serving an inhibition against the father upon that obligement, though the remedy be a little harsh.
On the 27th of July 1677, both parties having submitted one point of £1000 sterling, in variance betwixt them, to the President, he arbitrated 16,000 merks with consent of both parties; and, having reported it to the Lords, he obtained their authority interposed thereto.
Advocates' MS. No. 609, folio 294.
1677.January22.—This day Hay of Drumalziar's action against the Earl of Twedale his brother, was advised, and the Lords modified the price of the lands to 16 years; and thereafter, on a bill given in by Drumalziar, they raised it a year's purchase more, viz. to 17, which was thought a very competent price for lands in Twedale, See this more fully observed alibi.
