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.

David Balfour
v.
The Commendator of Cambuskenneth

1590.

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David Balfour pursued the Commendator of Cambuskenneth for spoliation of a bonnet-case, wherein there was contained an obligation made to him by the commendator, for setting to him a nineteen years' tack of the teinds of the kirk of Tullibody, &c. The spuilyie being proven, the quantity thereof was referred to the pursuer's oath; which being taken, and decreet given thereto, the commendator pursued him to hear and see the said decreet declared null, in respect that it was ultra libellata, because David had given his oath otherwise than was expressed in his summons; for, in the libel, he made mention of an obligation made for setting of a tack to David Balfour, elder, his heirs and assignees, with this limitation,—when the commendator had power to set tacks of the lands; and in his disposition he declared the tack should be set to David Balfour, elder, and to David Balfour, younger, his heirs or assignees, without the foresaid limitation, et sic ultra libellata. Answered, That the decreet ought to be taken away via ordinaria by reduction, and not by way of nullity. The Lords found that the declaration could not debord from the libel; and, in so far as it was otherwise, found the decreet null in that part, but not in totum.

Page 89.