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.

The Tutor of Balmaghie
v.
John Maxwel of Meikle Coklix

Date: 16 January 1634

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The Tutor of Balmaghie, having comprised certain lands from John Maxwel, of Meikle Coklix, and being infeft therein, after that the legal reversion was expired, sought the said John to be removed therefrom. Alleged, The pursuer was paid of the whole sums comprised for, before the expiring of the legal, by intromission with the mails and duties of other lands. Replied, Offered to prove that the Lord Harris, by virtue of a right, was in possession of the same lands the whole years that the comprising was running, and not the pursuer. Duplied, Not sufficient to allege that another was in possession, unless he alleged that he had done some diligence to remove the other, and come by the possession himself: for, if he might have intromitted with the mails, and did it not, it was enough as if he had intromitted; otherwise the debtor were in an ill case, if the compriser, that had right to the mails, did suffer another to meddle therewith, while the legal were expired, seeing, by that means, he should both want the duties of his lands all the foresaid years, and likewise lose the property thereof after seven years. Triplied upon the Act of Parliament 1621, bearing that the compriser should be countable, if he pleased to intromit, and accordingly did intromit; which words did not enforce a necessity of intromission upon him. The Lords repelled the allegeance, unless the defender would say, positively, that the pursuer had intromitted himself.

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