Scottish Court of Session Decisions

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

Hew Wallace of Ingliston
v.
Lord Forrester

1692 and 1693.

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1692. November 30.—Hew Wallace of Ingliston against my Lord Forrester. The Lords did not incline, by the depositions of witnesses, to make up the tenor of interlocutors amissing or abstracted, but rather to hear them upon the material grounds of justice which may induce the Lords to renew them; and, therefore, ante omnia, ordained Thomas Baillie to fit his accounts during the years he was factor on the estate of Corstorphin, and my Lord Forrester to give in his objections against the same. And if by the balance, Thomas was found debtor, the Lords would, at advising, consider if Hew Wallace should be liable for him subsidiarle. And as to the other interlocutor, of Mrs. Martha Temple's annuity, depending on Hew Wallace's right, it being alleged, that since November 1689, the present Lords of Session had found the same; they ordained the Lord Ordinary to try that, and if it was not so, to hear them on the grounds of law why it should not subsist as a separate debt alone.

Vol. I. page 525.

December 14.—Hugh Wallace of Ingliston against the Lord Forrester, mentioned 30th November last. It was alleged,—The commissary's decreet was more than a decreet in absence; seeing the passive titles were proven, not by circumducing the term, and holding him as confessed, but by extracting his service, as heir of tailyie, to James Lord Forrester, his uncle; and for anticipating and preventing that exception, litis ingressus impeditiva, that the heirs of line of Lord James were not called and discussed, he produced a decreet at Major Murray's instance, against this present Lord Forrester, wherein the heirs of line were found sufficiently discussed, and he decerned against.

And it being answered,—That this was res inter alios acta, the Lords reponed him against that decreet, on his payment of the expenses; and found James Lord Forrester's daughters, as his heirs of line, nee led not be discussed, unless the present Lord, who is his heir of tailyie, condescended on an estate to be affected; and ordained him to condescend; and found his adjudication should subsist for the sum which, on the event of this cause should be found due to Ingliston, by my Lord, as heir of tailyie to his uncle.

Vol. I. page 532.

December 15.—Another cause was reported, between the said Hugh Wallace and Forrester, about the lands of Letham, viz. If Forrester was bound to debate his right to these lands, on a suspension raised by Ingliston, in the name of the tenants of Letham, without their knowledge or consent, yea contrary thereto, they having subscribed a disclamation of the process under their hands; and that by this means my Lord Forrester's possession might be inverted, and he summarily dispossessed.

Alleged,—Thir lands were no part of the tailyied estate; and Ingliston was only debarred by the liferentrix, who is now dead; and there is nothing more ordinary than to bring in causes summarily for discussing preferences amongst creditors, in the name of the tenants; and they cannot disclaim it, or elect their own master.

The Lords found this was a formal and ordinary way of bringing in causes for dispatch of justice, by raising suspension in the tenants' names; and that it was not in their power to disclaim it.

Vol. I. page 532.

1693. February 8.—The Lords advised the debate, mentioned 15th December, 1692, betwixt Heugh Wallace of Ingliston and my Lord Forrester; and found that the tailyie of Corstorphin and Letham was not such a mutual tailyie, (having neither resolutive, nor prohibitive clauses,) as to hinder James Lord Forrester to contract debts; and that he was fiar, being both the first member of the tailyie, and the last termination on his heirs: and, therefore, found his debts contracted not only during the standing of the marriage affected these baronies, but also those contracted thereafter: and that it was not like the fidecommissa in the Roman law; nor like that in the English law, called feuda possibilitate successionis extincta: and that this did not interfere with the decision in Spot's action against this Lord Forrester in 1691, whereby the Lords found this tailyie bound up to the said James Lord Forrester, that he could not dispone the lands to the children of the second marriage, who were not of the blood of George Lord Forrester; for though the tailyie hindered him from doing voluntary and gratuitous deeds, yet that could not prejudge his extraneous creditors, who seeing the fee in his person, on the faith thereof lent him their money. But the Lords reserved to Lord Forrester, as heir of tailyie, relief against the heirs of line of the said James Lord Forrester; as also ordained the creditors to depone on the truth of their debts, that they are yet resting owing unpaid; and such as had right by assignations, farther to depone what eases and compositions they got down.

Vol. I. page 556.