Scottish Court of Session Decisions

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

James Nasmyth
v.
George Stewart of Auldhame

Date: 15 February 1665

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James Home of Bonprie being denounced to the horn in January 1662, his liferent estate fell; the gift whereof Mr. Ja. Nasmyth, writer in Edinburgh, procures on the 2d of July, 1662; gets it past the seals on the 3d day of July. Then intents a general declarator of his gift. Compears, Geo. Stewart of Auldhame, advocate, for his interest; craves to be admitted; and for instructing his interest produces a gift of the same escheat dated in March 1662, sealed the 14th July, 1662; item, an instrument under a notary's hand, bearing Nicoll Somervell, servitor to the said George, to have several times required the said signature from Mr. William Burnet, keeper of the register of signatures, but could not get the same, and therefore protested for cost, scaith, &c. he might sustain thereby; item, a summons of general declarator of his gift, at the said George his instance. Then alleged, that, since he had the like declarator with the pursuer, and had done the first diligence before him, he ought to be preferred, at the least he was content that a general declarator might pass for them both together of one date, seeing his composition was first paid: and craved that each party's defences might be reserved in the special declarator.

Whereunto it was replied,—That albeit George Stewart's gift was prior in date to the pursuer's, yet the pursuer's was expede before it; and the summons raised, execute, and called before his; and, therefore, albeit posterior in date, seeing it was prior in diligence, the pursuer ought to have his gift first declared.

Upon which dispute the Lords preferred the pursuer. After pronouncing of which interlocutor, the cause being again called, George Stewart craved to be first declarator, notwithstanding thereof; in respect he had the first gift and first signature, and had done first diligence thereon; and any interruption made in passing through the seals, was not his default, but the treasurer's clerks, who kept up the same while the pursuer's gift passed. Whereunto the pursuer repeated his answer ut supra.

On this the Lords adhered to their former interlocutor. Then alleged,—That no respect could be had to the pursuer's gift, because he offered him to prove, that the debt which was the ground of the horning was satisfied. Item, that the pursuer at the taking of the gift granted back—bond to the treasurer, declaring his gift to extend only for payment of the debt contained in the horning whereupon the gift proceeded.

Replied nullo modo relevat to say the debt was paid, unless ye say before denunciation and registration of the horning.

In respect of which reply; item, that the said George produced not the back-bond, nor no declaration relative thereto under the treasurer's hand, they repelled the allegeance; and preferred the pursuer; and declared his gift in communi forma.

Act. Da. Dinmuire. Signet MS. No. 70, folio 61.