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.

The Laird of Clackmanan
v.
James Allardes

Date: 8 January 1620

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The Laird of Balnamoon having united the mains of Balnamoon and other lands lying contiguous to it, within the parish of Menmuir, in a barony called the barony of Menmuir, 1610: Long after, he gives an infeftment of an annual-rent of 600 merks to the Laird of Clackmanan, to be uplifted out of the lands and barony of Balnamoon, lying within the parish of Menmuir. When Clackmanan sought the ground to be provided for his annual-rent, it was alleged by James Allardes, who had comprised certain parcels of land lying within the foresaid barony from Balnamoon, that his lands should be free of the poinding, in respect they lay not within the barony of Balnamoon, but that of Menmuir. Replied, That it was only falsa designatio, quæ non debet vitiare actum cum constet de corpore; specially seeing he offered to prove that he had taken sasine at the place of Balnamoon, where it was appointed to be taken in the charter of union; likeas, the whole lands lay contiguous. Duplied, He being infeft in the barony of Balnamoon, which was not, his sasine could be extended no further than the mains of Balnamoon, and not to the rest of the lands contained in the barony of Menmuir. Triplied, If the word of Balnamoon had been left out, and he had been only infeft in his barony lying within the parish of Menmuir, it had been sufficient; and the adjection of that word, which was superfluous, should not vitiate the rest, cum utile per inutile non vitietur. After great reasoning and diversity of opinions, it was carried, by one vote only, that the wrong designation of the barony of Balnamoon for Menmuir should not prejudge the pursuer. And so the exception was repelled.

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