Scottish Court of Session Decisions

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

Helen and John Daills
v.
John Mackison and Eupham Harlaw

Date: 29 January 1633

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Helen and John Daills pursue Eupham Harlaw, as executrix to umquhile Barbara Harlaw, her sister, relict of umquhile John Daill; and John Mackison, spouse to the said Eupham; to pay to ilk one of thir two pursuers the sum of 100 merks and a pair of plaids worth ten pounds, addebted to the pursuers by umquhile John Daill, husband to the said Barbara Harlaw; and which sum, the said Barbara, immediately after her husband's decease, promised to pay to the pursuers; and therefore they craved the same against the said Eupham, executrix to the said Barbara, her sister, who made the said promise; and against John Mackison, her husband, for his interest. The defender alleging, that the said umquhile Barbara, her sister, alleged maker of the promise, was executrix to her husband, alleged debtor to the pursuers, who, after the alleged time of her promise, had obtained sentence of exoneration and a sentence against the creditors of the said umquhile John Daill her husband, wherein thir parties were called and compeared, and other creditors preferred to them, and they found not creditors to her husband; so that that sentence being given against them, at which time they might have claimed the benefit of the promise, and did not, nor at no time thereafter during her lifetime, she living two years thereafter, or thereby, they cannot now come back, after her decease, to prove this promise against her executrix; especially to be proven by witnesses. The Lords found this allegeance relevant, in respect of the said decreet of exoneration, given against the pursuers compearing; they never pursuing the defunct nor her husband while they lived; except that they would prove the promise by writ:—and it was not respected, what the pursuers alleged and replied, that that decreet exonerated her only of her office of executry; quo nomine this sum is not sought, but only upon the ground of her promise, which cannot be prejudged by that sentence; and, in respect of the smallness of the sum, viz. as if there were two libels for one hundred merks ilk one, they contended that the same was probable by witnesses. Which was repelled, as said is.

Act. ——. Alt. Burnet. Hay, Clerk.

Page 665.