BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
George Gordon v The Earl of Aboyne. [1701] 4 Brn 508 (13 November 1701)
URL: http://www.bailii.org/scot/cases/ScotCS/1701/Brn040508-0016.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
George Gordon v. The Earl of Aboyne
Date: 13 November 1701
Click here to view a pdf copy of this documet : PDF Copy
Mr George Gordon against the Earl of Aboyne, his brother.—The deceased Earl of Aboyne granted a bond of “provision to the said Mr George for 10,000 merks. He pursuing the present Earl on the passive titles for payment, a defence was proponed, that the bygone annualrents were all consumed in his aliment and education, and likewise offered to prove part of the principal sum paid, scripto vel juramento; which the Lords sustained in July last, but modified 1000 merks to be paid medio tempore by the Earl to his brother, for his subsistence; which was accordingly done. The Earl having neglected to make his election of his manner of probation, Mr George circumduces the term against him, and extracts the decreet; against which the Earl reclaims by a bill, representing, 1mo, That the decreet was wrong put in the minute-book, Mr Charles Gordon for Mr George, contrary to the Act of regulation 1672, and the Act of Sederunt 10th December 1687. 2do, It was null pluris petitione, being extracted for the whole 10,000 merks, when there was 1000 merks of it paid this last vacance.
Answered to the first,—That the error was inconsiderable, seeing constet de persona, and the Earl had no process with any called Mr Charles, and so was sufficiently certiorated; and that the Acts of Parliament and Sederunt require only the special designations of the defender's name, and speak nothing of the pursuer's. And, as to the second, though the decreet be extracted for the whole, yet he will deduce the 1000 merks paid, and restrict his charge to the superplus.
The Lords thought the extracting the decreet precipitant and informal, and therefore allowed the Earl yet to be heard before the Ordinary in the cause, what he could instruct paid scripto vel juramento; but, that the pursuer might not be any longer delayed, ordained that he behoved instantly to prove his allegeances, otherwise not to be received.
