Scottish Court of Session Decisions

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

The Laird of Meldrum
v.
James and Alexander Lumsdens

Date: 22 February 1670

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The said Lumsdens having a wadset of Meldrum's lands, worth 16 chalders victual of yearly rent, for the sum of 10,000 merks, wherein he was obliged to be accountable for the surplus of the rent, which did exceed the annualrent of themoney; after many years' possession, they did enter in a transaction, whereby Meldrum did discharge him of his whole intromissions, and gave him bond for £100 sterling; and Lumsden, on the other part, did assign Meldrum to three years' rent, as intromitted with by the Laird of Philorth, during his wadset, with warrandice from his own fact and deed. Lumsden having charged Meldrum upon the said bond, he did suspend upon this reason,—That, at the same time when he gave the bond, he got the said assignation to three years' rent, intromitted with by Philorth; whereas he offered to prove, by the charger's own oath, that he himself had intromitted all these years.

It was answered by the charger, That, as to his own intromission, he had a general discharge: And as to the assignation to Philorth's intromission, it was only taxative in so far as Philorth had intromitted; and he having quit a great deal of his annualrents, which exceeded the sum charged for, the letters ought to be found orderly proceeded.

The Lords, notwithstanding, did suspend the letters simpliciter; in respect that the charger was obliged to warrant from his own proper fact and deed; whereas he himself had actually intromitted: And found, That the conception of the assignation to three years' intromission by Philorth was as full and obligatory as if it had bore that Philorth had intromitted with the full rents all these years; otherwise it could not be interpreted but to be a clear cheat and fraud, if it should be taxed to Philorth's intromission; whereas he never intromitted, but the charger himself.

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