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Scottish Court of Session Decisions >>
Ayton of Inchderny v Alexander Napier. [1694] 4 Brn 132 (00 January 1688)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040132-0303.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Ayton of Inchderny v. Alexander Napier
1688 and
1694.
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[See the prior, intermediate, and posterior parts of the report of this Case, Dictionary, pages 12,609 and 11,479.]
1688. January 13.—The case of Ayton of Inchderny and Alexander Napier, mentioned 11th December 1686, was debated upon a new point,—If a relict be such a stranger executor as that she ought to have a third of the dead's part of the moveables confirmed, conform to the 14th Act, Parliament 1617.
Vol. I. Page 492.
1694. January 18.—The reduction pursued by Alexander Napier against Ayton, mentioned 7th December last, being further debated, they insisted on a third nullity for opening the decreet, viz. That Inchderny called for two testaments and a disposition, and yet the decreet related only to one of them, and the other two received no answer. Answered,—They needed none, seeing there were decreets of reduction formerly pronounced against them. Replied, —These should have been in this decreet, else it is without probation. The Lords found this nullity not sufficient to loose or open the decreet.
Vol. I. Page 592.
January 26.—The case of Napier of Blackston against Ayton of Inchderny (mentioned 10th January last,) was farther debated; and they insisted upon two more nullities, viz. that the time of Catharine Drummond the liferentrix's death, as it was not libelled, so it had no warrant from the interlocutor subscribed by the President. This the plurality of the Lords repelled, and thought it no nullity; seeing it was in favours of the defender Blackston, making him liable in less, and that caution was found to restore, if any more was exacted. The second nullity was, that he was not only decerned to restore the principal sum uplifted by him out of the Earl of Tweddale's hand, but also the annualrent of it since the time he received it; which not only wanted a warrant from the summons and interlocutor, but was unjust, unless they had proven he had lent it out and gotten annualrent for it. Alleged,—It was to be presumed, and it was a necessary consequence; and the clerks had liberty to make such extensions as only related to the formality of the decreet. Answered,—He lifted it bonafide by virtue of a right then valid, and was not bound to lend it out upon annualrent. The Lords found this a nullity. Then the debate arose, Whether such nullities did open the decreet so as to allow the parties to say what they could against the material justice of the decreet, or only that the party might be allowed to fortify and adminiculate the defect: For the President alleged,—If that were all the meaning of it, then the remedy the people had of winning into decreets, where they were truly lesed, by the mistake of the Lords or otherwise, would be altogether evacuated. But at last the parties, waving this, agreed to enter on the material justice of the cause.
