Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Euphame Mackalzean and Patrick Moscropt
v.
William Napier of Wrights-houses

1583. June.

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Euphame Mackalzean, as nearest and lawful heir to Mr Thomas her father and Patrick Moscropt, her husband, for his interest, pursued William Napier of Wrights-houses for the bygone annual-rents of 1000 merks laid upon his land by her father, whereof he received infeftment and sasine, to be holden blench of William, as superior. Alleged, She could not have the annual-rents for the space of three years, during which the said infeftment of annual-rent was in non-entry, and so belonged to the defender, as superior. Replied, He could not retain those three years' annual-rents in his own hands by reason of non-entry; because he was bound to warrant the pursuer's infeftment of annual-rent from all wards, non-entries, &c.—et sic quem de evictione, &c. Duplied, In so far as he was bound to warrant it from non-entries, that behoved to be understood of such as came by him, or by his deed and occasion; but this non-entry came by the pursuer's self, et ob negligentiam hæredis, jus suum minime prosequentis; for she might have sought the superior to have entered her, and used the ordinary remedy for the same. Triplied, That, albeit the fault proceeded not from him, yet there was no reason that he, having received another's silver, should retain the profit thereof in his own hands, et sic locupletaretur cum alterius jactura; for it was not alike in infeftments and alienations of annual-rents received by a vassal titulo oneroso, as in other heritable infeftments and dispositions made by superiors to vassals titulo lucrativo, or at least for service without any sums of money debursed; and also, it was notour that the pursuer was hindered to enter heir to her father legitimo impedimento, quia objecta fuit illi quæstio natalium, by Mr Henry Mackalzean, before the commissaries, and she summoned to hear herself declared bastard; in respect whereof her lying out could not prejudge her; but now, after she is declared heir, debet recuperare fructus hæreditatis jacentis. The Lords found, that, during the time of the non-entry, the annual-rents belonged to the superior.

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