Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Archibald and Alexander Stewart
v.
Margaret Wardlaw, Robert Pittillo, William Baillie, and Others

Date: 5 December 1663

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The tenants of Killemie, Bandrun, and Steilend, lying within the regality of Dumferling and sheriffdom of Fyfe, raise a summons of multiplepoinding against Margaret Wardlaw, relict of Lieutenant-General William Ruthen and Mr. Robert Pittillo, her spouse, for his interest, on one part; Archibald and Alexander Stewarts, brothers to the laird of Rossayth, on the second; Earl of Tweddale, on the third; George Wardlaw, brother to the laird of Pitrevie, on the fourth part; Mr. William Bailzie, writer in Edinburgh, on the fifth part; and Mr. John Anderson, minister at Sauching, (within which parish the lands lie,) on the sixth part: summoning them to compear before the Lords, &c. to hear and see it declared which of the said persons has best right to the maills, farms, and duties of the said lands; that the said pursuers may make payment of them to them, and that the rest may be discharged of all calling, troubling, pursuing, or arresting the said tenants for the same. In this action compearance is first made for Archibald and Alexander Stewarts, who, for instructing their right and interest to the maills of the said lands, produce two bonds, containing precepts of seasing, granted by the said L. G. Ruthen and Margaret Wardlaw, his spouse, to the said two brothers, for certain great sums of money contained in the bonds, with two seasings (one taken by each of them) following thereon, with a summons of poinding of the ground, at their instance, against William Ruthen, now proprietor of these lands, son and heir to the [said] L. G. Ruthen, and his mother M. Wardlaw, liferentrix thereof, and her husband for his interest.

Compears, by his procurator, Mr. William Bailzie, and alleges, he ought to be preferred to the said Archibald and Alexander Stewarts, because he has right by disposition made of the said lands to his father, James Baillie, long before their rights.

Replied for the brothers, that Mr. William Baillie ought to be repelled, because they offered them to prove that L. G. Ruthen, their author, was seven years in possession, which puts them in judicio possessorio, they succeeding to him; and so must have a sentence for poinding of the ground, and be preferred to Mr. William. To the which it was

Duplied, by Mr. William, that whatever possession the said L. G. Ruthen their author had, it was violent, at the least vicious, because apprehended after that his author had obtained decreet of removing from the said lands. Whereto it was

Triplied, that no respect can be had to any decreet of removing obtained at the instance of Mr. William's author, because their author, L. G. Ruthen (who was both infeft in the said lands, and was seven years in possession thereof,) was not called thereto. Likeas, in fortification of what has been said, it is offered to be proven that James Bailzie, Mr. William's father and author, did before his decease denude himself of any right he had to the said lands in question, in favours of L. G. Ruthen, their author. This reply and triply for Archibald and Alexander Stewarts, the Lords found relevant to be proven scripto, notwithstanding of the allegeance and duply made in favours of Mr. William Bailzie; and therefore assigned them a term for proving the same by production of such writs, documents, and others, as they would judge necessary to use. And because the writs whereby they intended to prove their said reply and triply were not in their own hands; therefore they protested for an incident diligence against the havers of the same: which protestation the Lords admitted. Whereupon the saids Archibald and Alexander raise a summons of incident diligence against Mr. Robert Pittillo, advocate, and his spouse, M. Wardlaw, Mr. James Winrahame of Wouston, and Robert Leggat, writer in Edinburgh, one or other of them; either as having had the said writs, or as having fraudfully put them away; to exhibit all writs or evidents granted by whatsoever persons, specially by Bruce of Alboth, Inglis of Ingliston, Catharine Bennet, &c. (here is a long catalogue of writs deduced) to the said L. G. Ruthen of the said lands of Killerny and others, that thereby they may prove their said reply and triply, admitted to their probation, and that they being found to have best right to the said lands, may keep and use the same as their own proper writs and evidents: all which they referred to their oaths of verity simpliciter. All which the Lords found most relevant, and therefore they granted a term to the pursuers for summoning them to that effect; with certification that they failyieing, theyshould be holden for confessed; which all being done accordingly, and they cited personally by a messenger at arms, they failyied to compear to give their oaths; whereupon they were holden as confessed, and ordained to exhibit and produce the said writs called for, under the pain of horning, to be granted on fifteen days, &c.

In the action of multiplepoinding, for Archibald and Alexander Stewarts, compear Mrs. George Norvell, and William Maxwell; for Mr. William Baillie, compears Mr. Jo. Harper: in the incident, the pursuers compear ut supra.

Alt. Mrs. Robert Pitillo and Mr. John Eleis. Signet MS. No. 22, fol. 7.