Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Home and Pringle v. -
Date: 1 December 1671
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This is a pursuit at a relict's instance, for removing from some lands whereof she was liferentrix.
Alleged,—I cannot remove, because having lent a sum of money to the pursuer's husband, he had granted him an heritable right to the said land, to be bruiked by him aye and while the sum lent were repaid to him.
Replied,—That right was null, and notwithstanding thereof he must remove; because, though it bore these words, “sets, wadsets, dispones, and annalyies,” and though it bore an yearly duty to be paid to this pursuer as a tack-duty, yet in effect it is neither a wadset nor a tack. A tack it was not, because it wanted a definite ish. A wadset it could not be, because it bore no precept of seasine or obligement to infeft; which, though it had carried, yet it could never have defended, because no seasine was ever taken thereon.
Duplied,—This relict can never be heard to quarrel the right alleged on, because she has homologated the same, in so far as she received the tack-duty of sundry years bygone, and so has acknowledged the tack. 2do, It is a formal enough tack; and for the pretence that it wants an ish, the same ought to be repelled, because it has a most expressive ish, viz. when the sum shall be paid; and offered to adduce sundry practiques where this was sustained, and namely, one in terminis out of Dury, on the 25th of January 1625, betwixt Ronald and Strang.
Triplied,—The pretended homologation is ridiculous, seeing it imports a deed of one's own; and none can homologate the deed of another unless he represent that other; now there was no deed of the relict's here that she could homologate, the tack being set by her husband, (if so bp it be one,) and she being no party therein. As to that part of the duply alleging the tack to be valid, and to have an ish, because it bears aye and while the money be repaid, and the practiques for the same, Triplies, They have contrary practiques more pregnant; for, first, they have five to one; 2do, They have a late one, viz. in 1664. As for Dury, he is clear in the 12th of July 1621, Laird of Muckhall.
The Lords did not determine this point about the validity of the tack, because they found the writ a wadset, and so null quoad the relict, because not made real by infeftment.
Ex multitudine authorum quod melius et æquius est non est judicandum, cum possit unius et deterioris sententia alias omnes superare; Justinianus, in constitut. de conceptione Digest. Yet in Italy, where they judge by the opinion of the doctors, he who brings maniest, providing they be classic, wins the cause.
