Scottish Court of Session Decisions

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

Alexander Clunias, Provost of Cromarty,
v.
William Clunias

Date: 11 February 1665

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Alexander Clunias, Provost of Cromarty, by his bond obliges him to pay 600 merks to Alexander Clunias of Dunskeith. This bond Dunskeith leaves in legacy to William Clunias. Which William, pursuing therefor, in the English time, obtains decreet; on which raising letters, the Provost suspends them in 1662. Yet protestation or a decreet of suspension is recovered against him; on which he is of new charged. He suspends on reasons which, at the calling of it, are reformed thus. 1mo, Ought to be suspended, because the decreet whereupon it was raised was for null defence and not compearance. 2do, Because he ought to have compensation for 1000 merks paid by the suspender, for Dunskeith the charger's cedent, to Mr. Alexander Ross, minister at Logie, to whom he was debtor in L.5000; and that in obedience to an arrestment laid on by the said Mr. Alexander, of the very same bond now charged for: which payment he was in bona fide to make, since it was before the said pretended legacy was left to the charger, at least before the intimation thereof. Now, if Dunskeith were living, and pursuing the suspender upon the foresaid bond left in legacy, the said compensation would be receivable against him; and therefore the same must now also be received against his legatar or assignee, especially seeing there is no other estate personal nor real belonging to the said defunct upon which the suspender may recur for his warrandice for the 600 merks bond. Item, at the best it is but a legacy which can have no place where there is debt: now the suspender is creditor to the defunct for his warrandice for the said 1000 merks paid out for him as is aforesaid. 3tio, Dunskeith by his testament and latter will left the 600 merks to sundry persons, who have made over all their rights to one Alexander Manson; who, confirming himself executor dative and legatar to Dunskeith, is pursuing the suspender for payment making to him of the said 600 merks; till he therefore be discussed, this charge must be suspended. 4to, They must be suspended quoad the annualrents and expenses of the said pretended legacy, because the words of the legacy bear only 600 merks simpliciter; and therefore, esto the legacy sustain in law; yet, at the best, it cannot be judged of greater force nor a testament, wherein if a defunct give up only a man debtor in a principal, omitting annualrents, its judged in law a discharge to the debtor of what is omitted. 5to, The charge must be suspended for the half of the said sum of 600 merks, because the same is due to the defunct's relict, the defunct having died without children, and the relict is preferable therein to any legatar; therefore the suspender craves retention thereof in his own hands, because the relict is his own daughter, he having good interest both as her father, and as a party contractor, to crave the sum to the effect he may pay it to her; especially seeing he has maintained her ever since her husband's decease, she having nothing of her own left her by the defunct but the half of that 600 merks, which the law provides her to. And as for the decreet, given in the English time, it was most unjust, seeing the testament wherein the legacy charged for was left, was not confirmed; without confirmation whereof nothing could be acclaimed thereby.

To the first reason it was answered for the charger,—That notwithstanding thereof, the letters ought to be found orderly proceeded, in respect of the decreet; and opponed the same pronounced parte comparente. Whereto it was replied, that though compearance was made, yet the same was most officiously done, without all order or warrant. To the second reason, answered that, 1mo, He opponed his answer to the first reason. 2do, et separatim, offers to prove, by the suspender's oath, (if need be,) that he or his son has obtained decreet before the Commissary of Rosse and his deputes, against the said Mr. David [Alexander] Rosse, at least against his heirs and executors, decerning them to give up to the suspender or his son the very bond of 1000 merks specified in the second reason, at least a sufficient discharge thereof. To the third, answered, 1mo, Its jus tertii to the suspender. 2do, Opponed this legacy now charged on as long posterior to any pretended legacies made to the said W. Manson his cedents. Yea, though W. Manson had either compeared for his interest in the first decreet, or were compearing now, he could never be heard to crave preference, in respect there is nothing more clear than that the defunct's last will and legacy innovates all prior testaments and legacies. But so it is, that these legacies mentioned in this reason, are long anterior to this. To the fourth, answered, oppones the decreet obtained parte comparente decerning him to pay annualrent. 2do. Oppones the legacy, whereby the defunct leaves that bond of 600 merks granted to him by the suspender: but so it is, the said bond bears annualrent: now it were absurd, that because the same is left in legacy, that therefore annualrent may be detained and kept, especially seeing it has now been owing these eighteen years, and there have been many decreets and suspensions therein. To the last answered, 1mo, its jus tertii, 2do, et separatim, non relevat, since the defunct was known to be a man of a plentiful fortune, why might he not leave that bond in legacy to whom he pleased; especially seeing the relict was sufficiently provided and secured aliunde by her contract of marriage.

All which dispute being considered by the Lords; item, The suspender's procurator refusing to produce his client to depone upon the second reason of suspension, they repelled the whole reasons, and found the letters orderly proceeded, ay and while they were obeyed.

Suspender, Ja. Aberneithy. Alt. Sir G. M'Kenzie. Signet MS. No. 60, folio 58.