Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

The Lady Knappernay
v.
Sir Robert Ferquhar and the Tenants of the same

Date: 23 November 1664

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Jean Thomson, Lady Knappernay, being infeft in the lands and miln of Tulliemald and Knappernay, pursues Sir Robert Ferquhar, and the tenants and possessors of the same, for maills and duties for several years bygone, and in time coming. It was alleged for Sir Robert, Because he possessed the said lands by virtue of a wadset right, flowing from the pursuer's husband, in which the pursuer had consented. It was replied, That any right the defender had was discharged, in so far as, by a ticket under his hand, he declared, that, notwithstanding he stood infeft in the said lands, yet there was nothing resting to him by the defender's husband but what was contained in a particular account, subscribed by Knappernay; upon payment whereof, Sir Robert was obliged to denude himself of all right he had to the foresaid lands. Likeas, immediately thereafter, in anno 1641, Knappernay did enter to the possession, which he and his relict, the pursuer, did continue till the year 16?5, that she was put from [it] by a decreet surreptitiously purchased against her tenants, to which she was not called, and whereof she has reduction depending, As also, in anno 1643, Knappernay gave bond to Sir Robert Ferquhar for the sum of £1390, which he acknowledged him to be resting, after just count and reckoning; and which sum was satisfied, and bond retired, and Knappernay's subscription taken from it, which is extant to be seen. The Lords, before answer, ordained both parties to produce their subscribed accounts, and to give their oaths upon the having thereof; and Sir Robert to depone upon the double thereof, and to produce the contract of wadset, with the retired bond granted by Knappernay to Sir Robert for the sum of £1390, after count and reckoning. Thereafter it was declared in whose hands the subscribed account was presumed to be, since it was not produced. The Lords found the same was presumed to be in Sir Robert's hands, in regard of many circumstances;—and therefore found Sir Robert ought to produce the same. And a day being assigned, and the term circumduced against him, the Lords decerned in favours of the Lady Knappernay, the pursuer.

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