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The Tenants of the Earl of Kincarden v The Countess of Kincarden and other Creditors of the Earl. [1681] 3 Brn 414 (23 February 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Brn030414-0591.html Cite as:
[1681] 3 Brn 414
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Tenants of the Earl of Kincarden v. The Countess of Kincarden and other Creditors of the Earl
1681.
February2325
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February 23 and 25.—In the action of multiplepoinding, raised by the tenants of the Earl of Kincarden against the Countess and other Creditors, the Lords, upon report, ordain the book of the register of the date of the seasine in question to be produced, to the effect it may appear whether the said seasine be therein contained; and find it relevant that the lands were united in a barony by the King, in favours of the granter, his authors and predecessors, before my Lady's infeftment; and repel the allegeance of the not payment of the 80,000 guilders of her tocher, simply as to the abating any thing of her jointure; but sustain her reply, offering to prove payment thereof, relevant to infer repetition of the 80,000 guilders, conform to the contract; reserving to the Lords' consideration the point of repetition after the probation.
Then, on the 25th February, the Lords having understood, on production of the book of the register, that my Lady's seasine was in the general register, duly registrate, and that the union of the lands in a barony is in Sir James Lumisden's charter, the Earl's author, anterior to my Lady's infeftment, therefore prefer my Lady, quoad her jointure, to all the creditors; and find it proven, by the discharge produced, that the 80,000 guilders were paid to the deceased E. of Kincarden. But allow the creditors to see and object against that discharge; and reserve the point of repetition of the foresaid sum, to be considered at advising the probation, and the creditors to be heard thereupon. Vide 29th Nov. 1681.
Vol. I. Page 132.
November 29—The case between the Earl, Countess, and Children of Kincardin, and the Creditors, (23d Feb. 1681,) being advised, the creditors were preferred quoad her 80,000 guilders of tocher, provided to the younger children at their age of twenty years, in regard the clause bore a proviso in case they had disponed on it; which was not done.
