Scottish Court of Session Decisions

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

Lord Borthwick
v.
Walter Scott and John Turnbull

Date: 11 February 1666

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The Lord Borthwick having wadset the lands of Fearnisht and Gilmertoun to Walter Scott and John Turnbull, in anno 1600: both being in possession, and bruiking more nor paid the annualrent of their money at six per cent.; the Lord Borthwick pursues the wadsetters for payment of the superplus more nor pays them their ordinary annualrent, conform to the Act of Parliament.

It was alleged by the defenders, That they could not count for the superplus of their annualrent but from the date of the citation: and that they could not count at all; because the Lord Borthwick had renounced all benefit of the act of debtor and creditor, and of all acts made and to be made.

The Lords found, That the wadsetters ought to count only from the date of the granter of the wadset's requiring them to accept of caution for their money; and that such an offer of sufficient caution, by way of instrument, should be made before the intenting of any summons upon the act of debtor and creditor for count and reckoning: and that they would decide so in all time coming: But found, That the pursuer's renouncing the benefit of the act of debtor and creditor did not bind him, in regard the Act of Parliament is posterior thereto.

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