Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Collinson
v.
Menzies of Balgounie

Date: 11 June 1669

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Menzies of Balgounie having given a bond of provision of 12,000 merks to five of his younger children, payable at the first term after his decease, and bearing an obligement, in case of not payment, that his heirs should infeft them in the lands of Balgounie for their security: They did obtain a decreet against his grandchild, as representing him, not only for the principal sum, but for the bygone annualrents since their father's decease, upon that ground,—That the defender and his father had continually possessed the lands since the death of the goodsire, who was granter of the bond: Which decreet being suspended, and reduction raised upon this reason,—That the suspender was minor the time of the decreet, and enormly lesed; because the bond did bear no annualrent, but only an obligement to infeft; and the most that could have been decerned was the rents of the lands, which ought to have been liquidated by a sentence, and found to have been equivalent to the annualrent of the money:

Notwithstanding whereof, the Lords found the letters orderly proceeded for apprising the lands, for security, both of principal and annualrents; in regard other creditors were doing diligence, by comprising and adjudication: But withal ordained the charger to prove the worth of the rents of the lands: for which they ordained letters to be directed; and declared, that if they should not extend to the yearly annualrent, the comprising should be restricted, in so far as the annualrent did exceed the same.

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