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.

George Home
v.
the Laird of Blackader

Date: 19 March 1633

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George Home, brother to the Laird of Renton, as donator to John Stuart of Coldingham's escheat and liferent, and thereby having right to the liferent-escheat of the Laird of Wedderburn, who was John's vassal, pursued for the mails and duties of certain lands pertaining to Wedderburn. Compeared the Laird of Blackader, and Alleged, The pursuer, as donator foresaid, could not be answered of the mails and duties libelled, because he was infeft in the lands libelled long before Wedderburn's rebellion. Replied, His infeftment was but base, never clothed with possession, and so could not prejudge the superior nor his donator post jus acquisitum. Duplied, His infeftment was for an onerous cause, viz. for relief of cautionary for Wedderburn, in case it should happen him to be distressed; and, as long as he was not distressed, he had no necessity to apprehend possession, but suffered Wedderburn to possess his own lands, and pay the annual-rent of the sums for which he was cautioner; In respect whereof, his not possessing cannot be obtruded to him. Triplied, A base infeftment, without possession, can never maintain one against another pretending right. The Lords repelled the exception, in respect of the reply.

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