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Scottish Court of Session Decisions >>
Thomas Fraser's Daughters v Renton of Lamberton. [1665] 2 Brn 397 (4 February 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Brn020397-0659.html Cite as:
[1665] 2 Brn 397
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Thomas Fraser's Daughters v. Renton of Lamberton
1665.
February4,
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In 1650, the Earl of Hartfield, (now of Annandale,) Home of Plenderghast, Home of Blaisterton, and Renton of Lamberton, oblige them to pay to Thomas Fraser merchant in Edinbugh, 8000 merks. In 1656 he gets a decreet against them for the same. His daughters, on this decreet, charge Lamberton's son therefore. He suspends, 1mo, Because he, being a minor, scarce yet fourteen years, must have the privilege of the law granted to minors; that is, that the letters must be suspended as to all execution against his person, that he be not hindered in his education at schools and colleges during his minority. 2do, The suspender and his correi debendi have taken the benefit of the act of debtor and creditor; and, conform thereto, have paid the chargers a year's annualrent of the said principal sum, whereof also they have granted discharge; which they refer to the charger's oath. 3tio, Its eiked in the margin, that the decreet, whereon the said discharge did proceed, is null, in so far as the same was given without any manner of probation; there being only a registrate bond produced, which was registrate after his father's decease, and no summons of registration raised against him. Item, That his father was but a cautioner in the said bond. In respect of all which the letters must be suspended without all caution or consignation to be made by the suspender; at least as to personal execution.
At the calling of it, to the first it was answered,—That, being a reason of suspension, is not instantly verified. To the second, repeats the same. As to the third, ought to be repelled, because the said decreet yet stands unreduced. Item, that the suspender's father was not a cautioner, but a principal debtor. Igitur, the suspender, whether major or minor, must be liable to the chargers for the sum charged for.
The Lords repelled the reasons of the suspension, in respect of the answers made thereto: only, if the suspender should produce any thing to instruct him or his codebtors to have taken the benefit of the act of debtor and creditor, then he was to be farther heard thereanent, and the decreet to be stopped. Which he failyieing to do, the Lords adhered to their former interlocutor, and found the letters orderly proceeded, ay and while the suspender and his curators should pay the sum charged for.
Susp. Mr. Roger Hog.Alt. Mr. Alexander Oswald.
Signet MS. No. 48, folio 55.
