Scottish Court of Session Decisions

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

The Countess of Erroll
v.
The Earl of Erroll

Date: 27 July 1675

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The Countess having pursued the Earl to purge the little Mill of Esselmount, which was a part of her conjunct-fee lands, of a wadset which did affect the same, and whereof the wadsetter was in possession; which distress was referred to the Earl's oath of verity:—It was alleged, That the distress being factum alienum, and not a deed of this Earl, but of his predecessor, to whom he was heir, he was not in law obliged to give his oath of verity thereupon: and the legal course that the Countess must take, is first to pursue for possession of the mill, upon her contract of marriage and infeftment; and, in case she be debarred by the wadsetter, then to have recourse upon the warrandice against the Earl, as representing.

The Lords did repel the defence; and found, That the summons being referred to the defender's oath, that he certainly knew of the distress; and that the wadset was prior to the contract of marriage, and so would maintain the wadsetter's possession, if he were pursued.

Page 499.