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Scottish Court of Session Decisions >>
The Earl of Marishall v His Wadsetters and Vassals. [1683] 3 Brn 468 (00 January 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Brn030468-0705.html Cite as:
[1683] 3 Brn 468
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1680, 1682,and
1683.
The Earl of Marishall v. His Wadsetters and Vassals
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1680. February 28. —In the Earl of Marishall's improbation against his vassals and wadsetters, it was Alleged for one, You cannot crave certification against my rights, because I offer to prove any title you pursue by is apprisings which were bought in by the Earl your brother's means, from whom I got my right, though they were taken in Major George Keith's name as trustee; and so they must accresce to me in warrandice, nam jus venditoris accrescit emptori.
Vol. I. Page 93.
1680. June 10. —The E., as he who hath acquired some comprisings upon that estate, pursues the wadsetters to count and reckon for their intromissions.
Alleged,—They cannot be liable, upon the 62d Act of Pari. 1661, to count for the superplus duties over and above the annualrents of the sums contained in their wadsets; because this Earl's brother, when he was heritor, gave them a discharge thereof, as having counted to him for the same.
Replied,—This declaration and discharge of the debtor's cannot prejudge other creditors whose rights this Earl hath now, ex titulo singulari, acquired; but they must account for the superplus, and not keep up their debts as unpaid, to seduce and debar other creditors (who are posterior,) from coming in in their just ranks.
This was taken to interlocutor.
Vol. 1. Page 101.
1682. March 28.—The Lords ordained this point to be heard in præsentia, Whether or not an apparent heir, acquiring in an expired comprising on his predecessor's estate, and by it calling the wadsetters to count and reckon for the superplus rents, more than pays them their annualrents, on the 62d Act, Parl. 1661, or offering caution during the not requisition; if he, in such a case, ought not to be liable in the requisition; not indeed to infer a universal passive title, but, seeing he seeks benefit of the superintromissions, that at least he may state himself as their formal debtor. It is a certain truth, that an extraneous compriser could not be forced to these terms; but the case of an apparent heir buying in such apprisings is not so favourable. Vide this decided 22d March 1683.
Vol. I. Page 181.
1683. March 22. —In the Earl of MarishalPs cause against his wadsetters, (28th March 1682;) the Lords, in præsentia, found, that whatever apparent heir, as creditor, or singular successor, took the benefit of the 62d Act of Parl. 1661, anent restricting wadsetters to their annualrent, and imputing the superplus in sortem, should ipso facto make himself liable in the requisition, so as to become personally bound for what should be found resting them, on a count and reckoning, both principal and annualrents.
