Court Records for George Seton of Barnes and the Seton's Irish Estate:

Supplement to the Dictionary of the decisions of the Court of Session, Volume 3

By Scotland. Court of Session, Mungo Ponton Brown, William Maxwell Morison

1680. June 22.
Dame Lilias Seton, and Sir James Ramsay of Logie, her Husband, against George Seton of Barns.
Dame Lilias Seton, and Sir James Ramsay of Logie, her husband, pursue George Seton of Barns, her brother, for L. 900 Sterling, promised to her by her father, Sir John Seton, in a letter to her. Alleged, The letter is conditional, as shall appear by a writ under his hand, which is not produced, and non creditur referenti nisi constet de relato; 2do, It bears, " In case I die before you be married, and your tocher paid;" but ita est, she was married in her father's lifetime, and he gave 10,000 merks of tocher with her, and got a discharge of it. This being reported, " the Lords find, the father having after the date of the letter met with his daughter, and married her, and provided her to a competent tocher, the letter does not oblige; and therefore assoilzied."

1680. July 1.—In the action Dame Lilias Seton against Barns, (22d June 1680.) being beaten from the letter, they recurred to a new claim, viz. the 5000 merks contained in her infeftment, which albeit it carried that same quality of the missive, viz. that it should be void and null when she was married and her tocher paid, yet it behoved to remain as a debt, because, by an agreement betwixt this Barns and his father, he did take his father expressly obliged to purge and obtain her renunciation of that infeftment, which he never would have done, if he had looked upon it as a right satisfied and extinct.— Answered, That infeftment is res hactenus judicata, and out of doors by a decreet absolvitor inforo, obtained by Barns against it in 1663; and this new allegeance on the contract betwixt his father and him was competent then, and being omitted, cannot be proponed now; and cannot be said to be emergent, or noviter veniens notitiam; see an express and solemn decision on this, 20th January 1631, Gordon, voce Process. 2do, Esto the allegeance were receivable, (as it is not) nullo modo relevat ; for there is nothing more ordinary.
Vol. XXVII. 63 R

8 Martii 1681.

The Privy Councell refused a warrand or licence to No 584 p 192 George Seton of Barnes to import horses or cows from Ireland whither he was going tho in his bill he offered caution and bond to sell none of them and thereby wrong the native product but he was only to use them for his own labouring and stocking the ground and they would not dispenss with ther oune Act of Councell

2. March 14. George Seaton of Barns against The Lady Bearford, his Sister.

In George Seaton of Barns his petition against the Lady Bearford, his sister, the Lords, after a debate in praesentia, refused to give an act declaring the validity of their own extracts under the clerk-register's hand; in regard it was not craved by any warrant from the Irish judges, where the affair was depending, but only by a private party. Yet the noble senatusconsullum, or Act of Sederunt, in Latin, made on the 31st day of July 1596, (which is not recorded till the 17th of November 1599,) is very positive that such extracts are as probative as the principal writs, except in case of falsehood and improbation.

Yet Barns' Irish counsel-at-law Alleged,—That Act was only a desire of the Lords of the Session to foreign judicatures, to esteem our extracts as probative ; but they saw no answer from other courts granting the same. But they mistake it ; for, Imo, It is declaratory what is the import and strength of these extracts in our law and custom; and, 2do, It is petitory, that they may pay them the same deference and respect; else they will not repute what shall come from the clerks of these sovereign courts as authentic. Which was all the certification the Lords could give against coordinate independent courts.

Vol. I. Page 178.

1683. George Seton of Barns against The Lady Bearford, &c.

February 7-—Sir Arthur Forbes, Viscount Granard, Lady Margaret Hay, and the Lady Bearford, gave in a bill against George Seton of Barns, complaining he had vitiated a principal agreement, or decreet-arbitral, passed betwixt his father and him in 1658, by making eighteen hundred sixteen hundred, and his estate this estate, and adding the word rents, which corrupted the sense.

Answered,—They were not vitiations, but amendments, inserted in it at the very beginning by the arbiters.

The Lords, having considered the bill and answers, recommend to my Lord Register and Redfoord to hear the parties anent the vitiation of the said decreet-arbitral, and upon the haill points controverted ; and, for that effect, grant warrant to the Commissary-clerk of Edinburgh to exhibit and produce the principal decreet-arbitral in question ; and to the Clerks of Session, and Keepers of the registers and records, to exhibit and produce, before the said Lords, any grounds or warrants, and books, that can clear the whole matter.. And ordain the Lords to make report. Vide 13th March 1683.

Vol. I. Page 216.

March 13.—George Seton of Barns, in the affair between him and the Lady Bearford, &c. (mentioned 7th Feb. 1683,) on a bill gets a deliverance and warrant to examine the Commissary-clerk arid his. servants on the said minute and its extracts ; as also a commission to examine Mr Robert Hodge, the arbiter, and writer of it, &c,— Vide 30th current. Vol. I. Page 225.

March 30.—The Viscount Granard, Lady Logie, and Lady Bearford, against George Seaton of Barns, (mentioned 13th current,) being advised; the Lords found, by the writs produced, the deposition of Mr Robert Hodge of Westgladsmuir, the arbiter, and writer of the minute of the decreet-arbitral, and the Commissaries their clerks and servants, and particularly by the oaths of Home and Sandy, that the said decreet at the beginning has borne his estate, and is since made this ejtate, by adding the letter T to his in two places of it, where Sir John Seaton, his father, is empowered to dispose upon the rest of his estate; and that it has no other vitiation in it ; and that it appears that Barns, neither by himself nor others, had any accession thereto.

Barns, in this process, to blunt Lady Margaret Hay his stepmother's process, by the popish priests, agreed with her. Yet the enemies he left behind prevailed thus far, as we have seen ; which they sought to counterbalance and enervate Barns's suit he had commenced in Ireland, for some lands there belonging to his father, where they made use of the foresaid decreet-arbitral as a renunciation of all he had to crave, save the lands of Barns.. Vol. /. Page 23U

offering to prove it was in his ground, a visitation act and commission was appointed by Colinton, before whom it was debated. Then, upon a bill given in by Barnes, the Lords named Newbyth and Gosfoord to perambulate and take inspection of the ground, and receive the depositions of witnesses to be adduced by either party, anent the property, and possession past memory, &c. (See the information.) Who met, upon the ground, on the 9th of May, and considered, from point to point, if my Lord Uundonald's Hecreet-arbitral betwixt them was fulfilled ; then examined four witnesses for either party, anent the property of the strand and aqueduct, and Barnes his use of casting the same, &c. Advocates' MS. No. 553, folio 278.

1677. November 14.—Sir John Seton of Garmilton having charged George Seton of Barnes, upon a decreet of the Sheriff of Hadington, finding that some of Barnes his cattle had come upon an inclosure in Garleton's ground, and therefore fining him in £5 Scots for each beast, conform to the Act, in the Parliament iGGl : Of this decreet Barnes raised suspension and reduction, upon iniquity, that the sheriff had refused a visitation, and found it to be an inclosure, upon the testimonies of some of Garmilton's own servants; and that it truly had none of the qualifications required, by the foresaid Act of Parliament, to a privileged inclosure.

The suspension coming first to be cal!ed,-^Newton repelled the reasons, as not instantly verified, and found the letters orderly proceeded ; superseding extract for a month, in which time Barnes might insist in the discussing of his reduction. Before the elapsing of this time, on the 21st of November, we gave in a bill to the Lords, representing, that our reduction was now ready ; and, for the speedier dispatch, to verify our reasons, the process led before the sheriff, and the principal depositions of the witnesses would be necessary ; therefore craved a warrant against the sheriff-clerk, to send them in.

The desire of this bill the Lords granted. And Barnes having charged him with horning, he transmitted the haill process to Mr Thomas Hay ; after which, upon a new bill, we got it remitted to Newton, to compare the probation with the decreet, and with the reasons libelled against it, and, after perusal, to report:

Which he having done on the 2Gth of February 1678, the Lords found the said decreet unjust; and therefore reduced and suspended simpliciter.

We were not expecting so much ; but only that the Lords should have turned it to a libel, and appointed a visitation and perambulation on the ground, for cognoscing if it was truly such an inclosure as was meant by the foresaid Act of Parliament. See the copy of the decreet, and reasons against it, apud me. Anent the evoking and transmitting processes in inferior courts, see an instance, supra, num. 623, Sir A. Ramsay, [26th July 1677.]

Advocates' MS. No. 655, folio 307.

1678. February 2.—In the declarator of property, or cognition and perambulation of molestation of the meiths and marches, between Seton of Barns and Seton of Garmilton, (of which vide supra, No. 553,)—the probation and report of the commission being this day advised, and the Lords having considered the report made by the Lords Newbyth and Gosfuird, visitors, adhere to the said report, in so far as they have determined the matter in question. And siclike, having considered Garmilton's oath and deposition, and the testimony of the witnesses adduced, they find, by Garmilton's deposition, That the stone dyke of the park is rightly situated, according to the Earl of Dundonald's decreet-arbitral; and find that Garmilton should make a stone pent! in the park-dyke, sufficient to let the water go out, not being of that wideness to let ,in or out beasts. And find that the water-gang, from the parkdyke to Barnes his mill, ought to continue in the old channel; and that the channel wherein it now runs is the old channel ; and that the said water-gang, from the ston park, is the march betwixt Barnes* and Garmil-. ton's lands; and that the water running therein can suffer no division; and the diversion made by Garilton ought to be restored, so that the water may run entire in the old channel. And find that Garilton's feal-dyke, at the east end thereof, is built, by the space of a pair of boots, on Barnes his land; andthat therefore the same ought to be demolished, by the said space of a pair of boots. And find that both Barnes and Garmilton may, at their pleasure, cast the foresaid aqueduct and water-gang ; and that, in their casting, they ought to. do no prejudice, either of them, to other's lands, or to the feal-dyke built by Garmilton, except in so far as the same is ordained to be demolished;. and that the mud and earth, to be cast out by either party, when they dight the aqueduct, ought to be casten, the one half thereof on Barnes his side of the aqueduct, and the other half on Garmilton's side : and decerned accordingly.

On the 6th of June 1678, Garmilton having given in a bill to the Lords, com* plaining of this decreet, (for it was not then extracted,) and craving the Lords. would readvise the probation; and answers being made to it,—-The Lords refused the bill, and adhered to their interlocutor.

Advocates' MS. No. 719i folio 318.

The Decisions of the Lords of Council and Session, from June 6th, 1678, to July 30th, 1712:

Collected by the Honourable Sir John Lauder of Fountainhall

Supplement to the Dictionary of the decisions of the Court of Session

1702. December 18. The Earl of Errol against George Seton of Barns.
Sir John Seton, father to the said George, being married to Lady Margaret Hay, and provided her to a liferent-annuity of 2400 merks; and she having assigned the bygones of it to the Earl of Errol, he pursues a poinding of the ground; against which Barns craved compensation on a bond of 10,000 merks, due by Errol's predecessors, as her tocher; and Errol alleging that Sir John had assigned his lady to that sum, and from whom he derived right thereto:
Answered by Barns,—That the assignation was given to her by his father when in lecto, only five days before his decease, and that he had raised reduction thereof upon that head.
Errol Contended,—His action of reduction was prescribed by the negative prescription; the assignation being in February 1659, and not quarrelled till the forty years were run.
Alleged for Barns, lmo, His action would not prescribe, because he was non valens agere during the lady's lifetime, in regard she was liferenter of the sum, and it was wholly unnecessary for him to quarrel her right of fee till the liferent expired; as was found, the last of February 1666, Earl of Lauderdale against the Viscount of Oxford; and 5th February 1680, Brown against Hepburn. 2do, This assignation was a latent deed, so Barns, morally speaking, could not quarrel it till he knew it; which is of the nature of an exception, quce non nascitur till the right be some way made use of or produced. And what if a deed done in lecto, or posterior to an inhibition, be kept quiet for forty years, and then insisted in; will it be a good defence to say, Your action of reduction, ex capite inhibitionis, or that it was on death-bed, is prescribed, because not intented within forty years of the date of the bond? I think it would not; and as little here. Stio, The bond given by Barns to Lady Margaret, for her annuity in 1683, reserves, per expressum, Barns's reduction of her fee of the said 10,000 merks, which is a clear and plain interruption within the forty years; and as this prescription is odious, so the Lords have found interruptions favourable, 26th July, 1637, L. of Lawers against Dunbar; and 25th November 1665, White against Horn.
Answered for Errol to the first,—That Barns was valens agere, even cum effectu, from the very moment of his father's death; and though she liferented the sum, yet nihil impediebat but he might, in a reduction and declarator, have annulled her right to the fee; and the decisions cited are only in the case of a positive prescription, and so are misapplied here. To the second, Latency is no defence against the long prescription of forty years; neither does law presume an heir to be ignorant of his father's debts, but on the contrary to know them. 3/io, Barns's obligation in 1683 favours Lady Margaret as much as him; for, as it reserves his power of quarrelling, so all the lady's legal defences are as fully, and with the same breath, reserved; which makes it as broad as long.
The Lords thought her being liferenter did not make him non valens agere in this case; but found his proponing compensation against the Earl in that 10,000 merks' bond, with his reservation in 1683, &c. were sufficient interruptions; and therefore his action of reduction, ex capite lecti, was not prescribed.
Vol. II. Page 167.