Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Laird of Clackmannan
v.
James Allardyse

Date: 16 November 1630

Click here to view a pdf copy of this documet : PDF Copy

The Laird of Clackmannan, being infeft and seised by Collace of Bonnymoon in an annualrent of 600 merks furth of the lands and barony of Bonnymoon, or any part thereof, lying within the parish of Menmure, and sheriffdom of——, pursues an action for poinding of the ground. Compeared James Allardyse of Kinneff, who had comprised certain lands within the said barony after the said Laird of Clackmannan's infeftment; and alleged, No poinding of the ground can be granted upon the seasine produced by the Laird of Clackmannan, but for poinding of the lands called Bonnymoon; with the pertinents, seeing there was no such barony called Bonnymoon; and if any barony was which pertained to the Laird of Bonnymoon, it was the half barony of Menmure, which was not mentioned in Clackmannan's infeftment. To the which it was answered, That falsa designatio could not vitiate the seasine, cum constat de subjecto, viz. his lands and barony lying within the parish of Menmure; and, seeing he had no other barony lying within the parish, the seasine must be understood to be of that barony; and the same being a barony, a seasine taken at any part thereof, was sufficient for an annualrent out of the whole, or any part thereof lying contiguous. It was duplied for the defender, That Bonnymoon was only infeft himself in the half barony of Menmure. Whereunto it was answered, That the Laird of Bonnymoon, goodsire to this laird who disponed the annualrent to Clackmannan, was infeft himself in the half barony of Menmure, and had infeft his oye in the said lands, to be holden in libera baronia; which infeftment was confirmed by the king; and so thereby the half barony was, by virtue of the king's confirmation, made a barony. The Lords sustained the seasine to give action to Clackmannan for poinding of any part of the lands of the barony lying contiguous.

Page 211.