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Scottish Court of Session Decisions >>
The Lord Yester and His Children v The Earl of Lauderdale. [1687] 3 Brn 649 (00 January 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Brn030649-0996.html Cite as:
[1687] 3 Brn 649
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1685 and 1687.
The Lord Yester and His Children v. The Earl of Lauderdale
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See the other parts of the Report of this case, pointed out in the Index to the Decisions.
1685. March 31.—The Lord Yester and his Children gave in a bill against Lauderdale, that they intended to adjudge the hæreditas jacens of the deceased John Duke of Lauderdale, for the uncontroverted £7000 sterling, on the renunciation to be heir, before the Sheriff, or other Judge Ordinary; and craving that the Lords may discharge any advocation thereof to pass.
The Lords ordained, if any such bill were presented, especially in the vacance, that it should be first given up to Yester to see and answer.
It was doubted here, what Court would be forum competens to this adjudication. For though the Earl of Lauderdale, ratione domicilii, was liable to the Sheriff of Mid-Lothian, yet adjudication being actio realis, and none of the lands lying in that shire, except Duddiston, (which is disponed to the Duchess,)—for Mussleburgh lying in a regality, it cannot be pursued there: and it was thought he could not be convened before the Sheriff of East-Lothian, or the Merse, for the bailiary of Lauderdale, because he dwells not there. But a citation on a supplement may make up and supply all that. Vide 24th November 1685.
Vol. I. Page 360.
1687. November 16.—The Lord Yester gives in a bill against the Earl of Lauderdale, complaining that he wanted a year's annualrent of his sum of £7000 sterling contained in his adjudication, mentioned 31st March 1685. And therefore craved that the tenants might come in and depone what was in their hands; and that Sir William Sharp's factory from the Lords and creditors might he recalled, and another put in: and he offered to be cautioner for Mr John Buchanan.
The Lords refused the desire of his bill, in regard of this answer, that his adjudication being led in January last, there could not be a year's annual owing him till January; and that it were oppression to bring in 100 tenants: and therefore granted commission to the nearest judges to take their oaths at home.
