Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Duke of Lennox
v.
Alexander Weems

Date: 20 January 1627

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In a suspension, betwixt Alexander Weems and D. of Lennox, for suspending of the charges whereby the Duke was charged to pay a pension granted to the said Alexander by umquhile Lodovick Duke of Lennox and Richmond; the decreet for letters conform to that pension being quarrelled, because the Duke of Lennox was not summoned thereto;—the Lords found no necessity to summon the giver of the pension to the action of letters conform thereupon, seeing he was the pensioner's author, and he needed not to summon his own author. This decision may appear to be hard; for, upon a decreet for letters conform, the chamberlains and others, intromitters with the duties of that lordship or lands where-out-of the pension is craved to be paid, are charged to make payment to the pursuer, who of reason ought not to be charged therefor, except their master and lord, to whom these duties should be paid by them, were called thereto; for no reason can draw their duties from them by any process of law, where their master is not decerned, to whom they are first and principally debtors; and this form and nature of actions cannot be more favourable nor more privileged than actions to make arrested goods forthcoming, which cannot be sustained without sentence, first against the debtor, and then that he was also called in the process, to make the arrested goods to be made forthcoming; and this pension can be of no greater effect than an obligation, upon the which no action for implement thereof could be sustained, without citation of him who granted and made the obligation. But it was found, by the Lords, that the giver of the pension needed not to be summoned, as said is.

Act. Burnet. Alt. Russel. Gibson, Clerk.

Vid. 7th December 1630, E. of Carrick against D. of Lennox.

Page 259.