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Scottish Court of Session Decisions >>
Dowie v Cuningham. [1685] Mor 16417 (00 December 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor3716417-021.html Cite as:
[1685] Mor 16417
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Found that a wadset (though it was very lucrative, and bore relief of all public burdens, and some of the hazards mentioned in the act of Parliament) was not to be restricted to the annual-rent from the date of the wadset, but from the offer of caution, as had been formerly decided in the case of Captain Hume of Ford against Jean Telfer in Dunbar, in respect the wadset did not secure against all the hazards mentioned in the act of Parliament, viz. fruits, tenants, or war.
Harcarse, No. 1029. p. 293.*** This case is reported by P. Falconer:
Robert Cuningham having granted a wadset of the links of Kinghorn to David Dowie, redeemable upon payment of £.1000, which wadset bore, That the granter of the wadset should pay the public burdens; there is a summons raised at the instance of Cuningham against Dowie, craving that Dowie might count for the superplus duty of the lands over and above the annual-rent, and that from the date of the wadset, in regard the wadset was improper, the granter of the wadset being obliged to pay the public burdens, and that there was no hazard that the same could be waste, it being grass lying at the port of Kinghorn, which the town could not want; the Lords found, that there were other hazards, viz. plague and war, which were mentioned in the act of Parliament, and which the wadsetter was liable to, and had no relief from the granter of the wadset, and therefore found him liable to count it not from the date of the wadset, but from the date of the offer of caution.
Therefore it was alleged, that the wadsetter behoved to be liable at the least from the date of a minute of agreement betwixt the pursuer and defender, whereby the wadsetter did restrict his wadset money for 1100 merks, which the granter of the wadset obliged himself to pay at Martinmas thereafter, and which 1100 merks the wadsetter was obliged to accept, and renounce the wadset, at the least he ought to count for the annual-rent of 400 merks, or a proportion of the mails and duties of the wadset lands effeiring to the 400 merks, being compared with the 1100 merks yet standing upon the wadset. The Lords found, that the restriction did not alter the nature of wadset, therefore found him only liable to count from the date of the offer of caution, and declared, that from that time he was only to have allowance of the annual-rent of the 1100 merks to which the wadset was restricted, and to count for the superplus duty.
