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.

Lady Borthwick
v.
Sir Mark Ker

Date: 26 January 1636

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The Lady Borthwick pursued her brother, Sir Mark Ker, for the mails and duties of the Lands of Torcraick, wherein she was infeft by her husband, for the years 1623, 1624, 1625, and for all years to come. The Lords would not sustain that conclusion of the summons, for all years to come, against possessors of lands, except it had been libelled particularly, and offered to be proven, that they possessed them the said years; notwithstanding that the pursuer alleged, he might reply upon it, and offer to prove the defender's possession: for they thought, if the defender had been absent, they could never have admitted that to the pursuer's probation; ergo no more compearing and replying upon it. It is true, that, in real and petitory actions quæ afficiunt fundum, as in poindings of the ground, such conclusions are sustained for all years to come, the terms of payment being bypast; and sicklike against tacksmen; but never against simple possessors, except it be both libelled and proven that they possessed these years.

Afterwards, Alleged absolvitor for all the years libelled before the intention of the pursuer's cause; because the defender was long before infeft in the lands libelled holding of the king, upon a comprising, and by virtue thereof in possession; so that he ought not to be countable for the fruits, which were bona fide percepti. Replied, He cannot allege bonam fidem; because any infeftment he had was upon a comprising led against her husband, upon a bond granted by him and her durante matrimonio, whereupon he could never comprise her conjunct-fee lands, in respect that the said bond was, ipso jure, null, in so far as concerned her, and no way obligatory; and so the defender, not being ignorant of the nullity of his own right, and of her perfect infeftment standing confirmed by the king, was in pessima fide to possess her lands, and ought to restore her to the mails and duties thereof, the years libelled. Duplied, He was not obliged to know her right, but was in optima fide to continue his own possession, aye and while she had used some lawful interruption against him. The Lords found this allegeance relevant.

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