Scottish Court of Session Decisions

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

Charles Cassie
v.
Cockpen and Adam Watt

Date: 8 November 1666

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Cockpen, and the deceased Adam Watt, being infeft in a yearly annualrent, effeiring to the sum of 4000 merks, forth of the lands of Auchinharvie, and others; by their back-bond, did declare the right of this infeftment, in their favours, to be in trust, and to the behoof of Doctor Cassie. This infeftment being dated in anno 1647, the trustees, for the arrears of the said annualrent, did not only comprise the lands of Auchinharvie, which were affected with the said annualrent; but also the lands of Fairherrivo, belonging to Sir David Cunninghame, the principal debtor; and the estate of Robertland, belonging to his cautioner; and whereupon they were infeft. The haill lands of Auchinharvie and others, out of which the annualrent was [payable,] were holden feu or blench of the king, or prince; but the lands comprised for the byrun annualrents were holden ward of the prince; and, before the leading of the said comprising, there were three other comprisings of the same lands, led at the instance of Sir David Cunninghame of Auchinharvie, and Robertland, their creditors; and whereupon the comprisers were infeft. Doctor Cassie being now deceased, Charles Cassie, his son and heir, being about to dispone his right to Doctor Cunninghame, does, in order to the perfecting of his bargain with the doctor, pursue the trustees, upon their backbond and comprising, for the arrears of the same. The trustees, pretending that their name being only made use of to Doctor Cassie's behoof, they ought to be relieved of all hazards they may suffer upon that account; do therefore, in the draught of the disposition which they make offer of, assert the same, with this quality, viz. that the right disponed shall be burdened with the reliefs of all wards and marriages, and public assessments, ministers' stipends, or other incumbrances, in all time coming.

The Lords found, That Cockpen, and Mr John Watt, ought to denude themselves with the burden of the relief of all wards and other incumbrances; or else that Charles Cassie give them bond and caution, or other real security, to warrant them of the ward and other incumbrances: and found, that Charles Cassie, upon the defenders' resignation, should purchase himself infeft, for freeing the defenders of the ward and marriage: and the Lords had no respect to that allegeance, that the comprising of the ward-lands, was but a fourth comprising, and that there was no necessity of being infeft thereon.

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