Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Raith, Donator to Meldrum's Liferent,
v.
The Laird of Buckie

Date: 22 March 1628

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In the declarator of Andrew Meldrum's liferent, mentioned 19th March, 1628,—there being an exception proponed for the defender, upon an anterior gift of the rebel's liferent, whereupon declarator was recovered by the donator, before the pursuer's gift and declarator, to the which the defender, who was a creditor to the rebel, was made assignee; and who, according thereto, was in possession of the lands libelled, desired to be declared to the pursuer in this special declarator now sought by him: and the pursuer replying, that this general declarator cannot exclude this pursuer, who seeks a special declarator of the lands specially libelled; seeing that anterior gift and general declarator thereon cannot prejudge the pursuer, neither can be any warrant to the excipient to have apprehended possession thereon at his own hand, without order of law, except he had obtained special declarator also after the general, for thir lands controverted; likeas he offered to prove, that the rebel, notwithstanding of that anterior gift, and general declarator, retained the continual possession of thir lands to his own use, utility, and profit. This allegeance was found relevant, notwithstanding of the reply; and the rebel's retention of the possession was not respected, seeing the prior donator might pursue him therefore, and might evict it from him by law.

Vid. 23d December 1623, Bannatyne against Murray.

Page 367.