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 Pittarro
v.
Glenbervie

Date: 22 July 1673

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Pittarro having charged Glenbervie to infeft him in the teinds of the lands of Drumlethie, he did Suspend, upon this reason:—That the said teinds were a part of the parsonage, and so his office to infeft was imprestable. But the same was only inserted by the notary ex stilo; whereas, in the disposition of the lands and teinds, he did assign him to four or five nineteen years' tacks, [and] to a bond of the Lord Arbuthnot's, to obtain the same renewed after expiring.

It was answered, That the disposition for lands and teinds, being of the like price for both, as to the chalder of victual, and the obligement to infeft being clear and positive for both, without distinction, and the assignation to the tacks to run being only in farther corroboration, the same was not equivalent to an heritable right, and could not satisfy the obligement to infeft, he ought to be liable for damnum et interesse, quod succedit loco facti imprestabilis.

The Lords did find the letters orderly proceeded against Glenbervie, for damage and interest; which they did value to be the fifth part of the stock and teind disponed, which Glenbervie should satisfy according to the price of the lands disponed.

Page 364.