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.

John Inglis
v.
Gilbert Kirkwood

Date: 26 July 1627

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John Inglis having right to my Lord Ochiltrie's escheat, by assignation from Anna Ker, Lady Garthland, who had right thereto by the Laird of Caprington, principal donator, pursued spuilyie of the teind sheaves of the lands of Killeith against Gilbert Kirkwood. Alleged, That the defender did no wrong in meddling therewith, because he had a right to these teinds, disponed to him by James Donaldson, to whom my Lord Ochiltrie had disponed them, 1614; by virtue whereof the defender and his author had possessed them 13 or 14 years. Replied, That disposition made by my Lord Ochiltrie was null, as being made stante rebellione, during which time he could make no right in prejudice of the king and his donator. Duplied, The allegeance stood relevant notwithstanding: because the hornings upon which my Lord Ochiltrie's escheat was gifted, being the one 1603 and the other 1607; the defender having acquired lawfully for onerous causes the right of that tack, and by virtue thereof peaceably possessed the same for so many years, before any gift of escheat purchased by the pursuer,—the same tack could neither be acclaimed by the donator to the single escheat; and further, the right of the tack could not fall under the pursuer's gift, because the right thereof was not acquired by my Lord Ochiltrie four years after the first and second hornings, by virtue whereof it is craved: And, by the daily practique, there comes nothing under the single escheat, but such moveables as belong to the rebel the time of his denunciation, or at the most within a year thereafter. In respect whereof the defender brooking, by virtue of a title standing clothed with twelve or fourteen years' possession, could not be convened as wrongous intromitter, to which the pursuer had restricted his summons. The Lords found that the right made by my Lord Ochiltrie, the time of his rebellion, was null, and sustained the summons for all years after the pursuer's general declarator, (which they found put the defender in mala fide.) And so repelled the exception. See the case below.

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