Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Walwood v. Taylor and the E of Dunfermline.
Date: 19 July 1625 Case No. No 16.
In a competition between two persons for the property of a coal, one of them, who had obtained decree of removing against the tacksman, subscribed as witness to a tack let to the same tacksman by the other competitor. Found that this did not prejudge the subscriber in his right.
This sentence was adhered to, though the tack contained a clause in favour of the subscriber.
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In a suspension, Walwood, in Dunfermline, against Taylor and the Earl of Dunfermline, suspending a decreet obtained by Walwood against the said Taylor, for removing from a coal; in the which suspension, the right of the coal being disputed betwixt Walwood and the Earl of Dunfermline, the Lords found, that albeit Walwood was witness to a tack of that coal, set by the E of Dunfermline to Taylor, against whom Walwood had obtained a decreet of removing from the said coal, yet his being witness to that tack did not prejudge him of his right to the coal, nor yet of his decreet obtained after that tack against Taylor; but that, notwithstanding of his subscribing as witness to the tack set by the Earl of Dunfermline to Taylor, he might thereafter seek, and pursue, and obtain decreet of removing against Taylor, upon his right to the coal, and that he needed never to have warned the Earl of Dunfermline, setter of the tack, nor his heirs, in that process of removing, because Taylor was tenant of that coal to him divers years before that tack, set by the Earl of Dunfermline. Nam quando aliquis subscribit tanquam testis, non videtur se obligare, l. Titia, § Lucius, D. de legat. 2do, Ratio videtur quia subscribere possum at testis, licet non vidi quæ subscripsi, quo casu non obligor, Socin. Reg. 477.
1625. July 28.—In an action betwixt Walwood and the Earl of Dunfermline, a tack set by the Earl of Dunfermline of a coal, to one called Taylor, which tack was subscribed by Walwood as witness; it being controverted, and alleged, That Walwood, who pretended right to the said coal, set by the foresaid written tack, by the Earl of Dunfermline, as said is, could not come against any thing contained in that tack, so subscribed by him, as witness, specially also, seeing in that tack there was a clause contained in his favours.—The Lords found, that the said Walwood's subscribing that tack as witness, was not of that force to prejudge him of any right he had to that coal, which was set in tack, as said is, notwithstanding of any clause therein contained; and that his subscription, as witness thereto, was not obligatory against him, neither induced any consent of his to that tack.
Act. Stuart.Alt. Hope et Belshes.Clerk, Hay.
Fol. Dic. v. 1. p. 378. Durie, p. 179, & 183.
