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Scottish Court of Session Decisions >>
The Earl of Cassilis v Lord Bargent. [1687] 3 Brn 611 (9 February 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Brn030611-0938.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 9 February 1687
The Earl of Cassilis v. Lord Bargent
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The case of the Earl of Cassilis against Lord Bargeny was reported by Boyne. It was a declarator of non-entry. Alleged,—The Earl was obliged to receive Girvanmains, Bargeny's author, and his heirs and assignees, by a precept of clare constat; and my Lord Bargeny was his assignee, and so exceptione doli mali repellitur; and non-entries are odious, et ejus putamina sunt recidendo. Answered,—Nothing stops non-entry but feudum plenum; and Cassilis ought to be free of his bond, because he offered, by way of instrument, to implement it to Kennedy of Girvanmains, and was refused; and, he being now dead, it is imprestable to receive him.
Replied,—His cedent's collusion or contumacy cannot prejudge him, and it may be supplied ex officio nobili per æquipollens.
The Lords found the lands in non-entry, notwithstanding of the bond.
Then alleged, if the Earl do not perform, he must give back the composition paid, as causa data non secuta. 2do, This being probabilis et justa causa litigandi, it must excuse and exoner for bygone non-entries preceding the interlocutor.
