Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

John Hay of Muirie
v.
Ballegerno, Pourie, and Other Creditors of the last Laird of Muirie

1683 and 1684.

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See the prior parts of this case, supra, page 417.

1683. March 13.—Sir John Hay of Muirie, advocate, his recognition against Powrie and others, (vide 5th January 1682,) being advised; the Lords found the infeftment of 14,500 merks was a ground of recognition quoad suum valorem, though it was only for relief of cautionry; seeing it was purified by a distress, and they had obtained a decreet of poinding of the ground thereupon, and had entered into possession thereby; and so it was no more an uncertain burden, but was become liquid: as also adhered to their former interlocutor, that an inhibition did not so cut off the posterior contracted debts but it occasioned a recognition, and entered in computo. Vide 15th and 24th current.

Vol. I. Page 225.

1688. March 15.—Between Carnegie of Phineven and Sir John Hay, in the declarator of recognition, mentioned the 13th March current; the Lords found it was not the resignation, nor the presenting a signature for getting a charter, that stopped recognition, but only the appending the King's great seal, which perfected the Act.

So that, if there were not as many base infeftments prior to the appending of the seal as absorbed the half of the worth of the ward lands, then this could never fall in recognition; and, however, that it could never be reckoned as one of them: but if there were as many prior as amounted to the half, then the public infeftment did not save it, but it fell with the rest. Castlehill, to make a difference between Phineven's case and Cromarty's interlocutor, (23d Feb. 1683,) distinguished between a base infeftment confirmed by the King,—which he confessed stopped recognition, because the said confirmation passed upon more special notice,—and a public infeftment upon a resignation in the superior's hands, which he accepts of course, and is but actus incompletus, as Craig, Feud. lib. 3, says, till infeftment be taken.

Though this distinction pleased some of the Lords, yet it was waved.

Vol. I. Page 226.

1683. March 24.—Muirie's recognition, mentioned the 13th current, was this day debated. Alleged,—The major part of the whole barony is not alienated. Answered,—The whole lands are not erected into one barony, but only lie contiguous, and the charter bears a dispensation for taking a seasine at one place for all.

2do. Alleged,—Sir John Hay, by practising with the witnesses, has proven the rent to be much less than truly it is, to the effect the Lords may think that the major part computed by that rental is alienated by base rights. Vide 4th December 1683.

Vol. I. Page 230.

1683. December 4.—In Sir John Hay of Muirie's recognition against Poury, &c., mentioned 24th March 1683; the Lords, having advised the depositions anent the rental, found Sir John had proven that more than the half of the ward-lands were alienated, and so recognosced.

But Gray of Balgerno, one of the creditors, being minor, craved to be reponed against this probation, (for the Lords had refused a conjunct probation of the rental against the king and his donatary;) because her tutors offered to prove the half was not alienated, in so far as there were sundry lands, part of the ward-lands, yet were not in Sir John's rental; which he had either concealed, or held lower than what they truly paid.

Answered,—This is not competent now post didiscita et publicata teslimonia, and that ob metum subornationis; for else this would open a door to perjury and suborning of new witnesses, when parties found they had failed in their former probation. Replied,—Minority and lesion should repone against punctilios of form.

Vol. I. Page 248.

1684. February 23.—The declarator of recognition, at the instance of Sir John Hay of Muiry against Poury, &c. mentioned 4th December 1683, was advised; and the Lords having considered the depositions of the witnesses adduced anent the rental, they find them unclear; and therefore grant commission to Forret, Drumcairn, Blair, and Carse, or any two of them, on the ground of the lands, to reexamine not only these witnesses, but also gentlemen and others there, who know any thing of the true rent of the controverted lands, if more than the half be truly alienated, so as to make all recognosce; and grant diligence for citing witnesses.

This was a great favour to Poury, after probation led, to make a new Act. Vide 14th August 1684.

Vol. I. Page 274.

1684. August 14.—The three Lords, viz. Pitmedden, Redford, and Edmonstone, commissioned to take the probation in the recognition, Sir John Hay of Muirie against Poury, &c., as mentioned 23d Feb. 1684, went to the ground of the lands; and whereas each party had above 50 witnesses to prove what was the true rental, the Lords restricted them to 20 the piece; and afterwards, on a communing, persuaded Sir John Hay to give Poury 13,000 merks, and him to accept it; and so they agreed this tedious and expensive plea.

Vol. I. Page 301.

See many other reports of this case in the Index to the Decisions under Hay against Muirie's Creditors.