Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

William Weir
v.
The Earl of Bramford

Date: 24 November 1676

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His Majesty and the Parliament, having rescinded the forefaulture of the late Earl of Bramford, who had been forefaulted, the time of the troubles, for his loyalty; did so qualify the act of rescission and restitution, that, albeit he had daughters, who, by the law, would have been heirs of line; yet the estate was settled by the Parliament upon his grandchild, son to the Lord Forrester, who had married one of the daughters.

Mr William Weir, having right by assignation to a debt of 5000 merks, due by the Earl of Bramford to Patrick Ker, one of the grand-children of the said Earl; and a decreet being obtained for the said debt against Edward Ruthven, the Lord Forrester's son, as having succeeded in the said estate, and being bonorum possessor, and having right, as said is, to said estate, ought to be liable, passivè, to the burden; the Lords, by the said decreet, declared, that the estate should be liable: and thereupon, adjudication having followed, against the said Edward, of a part of the estate, and infeftment upon the same; the said Edward did intent reduction of the said adjudication upon that reason;—That the said decreet against Edward Ruthven, whereupon it proceeded, was extracted wrongously; and not conform to the minutes and interlocutor; which were in these terms,—That the estate should be liable to the debt; but not that the said Edward should be decerned to pay, as the decree bears: And that there could be no adjudication against the said Edward, who was not heir to the said Earl; but there ought to have been a decreet and adjudication against his heirs of line, being charged to enter heir.

Upon debate among the Lords, some were of the opinion, and did represent, that there could be no adjudication against the heirs of line, nor decreet cognitionis causa; seeing they could not be charged to enter heir in special to that estate; which, by the Act of Parliament, did not belong to them; but was settled upon the said Edward, as said is: And that the said decreet against Edward was disconform to the Lords' interlocutor; seeing it was not intended, by the said decreet, that the said Edward, or any other estate of his, should be liable to the said debt; it being expressly declared, in the said decreet, that he should be free of personal execution: And the said decreet was but in effect a decreet cognitionis causa; and therefore behoved to bear the decerniture foresaid, that he should be decerned to make payment; which was only dicis causa, to the effect execution might follow by adjudication: And, by the summons whereupon the decreet proceeded, it was only craved that the estate should be affected: And, by the adjudication, Bramford's estate was only affected; and the adjudger was content to declare that he should affect no other estate.

Yet some of the Lords were of the opinion, That the decreet not being in these terms,—That the Lords decerned, cognitionis causa, to the effect execution might follow against Bramford's estate,—it was in arbitrio judicis, to sustain the decreet to be a ground of adjudication or not: And that Mr William Weir, having been accessory to the appeals, at the instance of Callender, from the Lords of Session, deserved no favour. And it was carried by plurality, that the adjudication should be reduced.

Newtoun, Reporter. Mr John Hay, Clerk.

Page 189.