Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

Sir Richard Maitland of Pitrichie
v.
the Laird of Geight

Date: 5 July 1676

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Sir Richard Maitland of Pitrichie, having obtained a gift of recognition of the estate of Geight; there was thereafter a minute, betwixt him and his father and the Laird of Geight, whereby it was agreed that Pitrichie, who, and his predecessors, had an ancient wadset of the lands of Achincreive and others, being a part of the said barony, should have the reversion discharged by Geight; and that Geight should give him a new right of the said wadset-lands, irredeemable, and holden of the King; and should pay to Pitrichie, for the charges in obtaining and declaring of the said gift, 4000 merks: and that, on the other part, Pitrichie should dispone to Geight the rest of the estate, and the right he had thereto by the said recognition.

Thereafter Pitrichie, having intented declarator for nullity of the said minute, upon pretence that Geight did refuse and fail to perform his part, did obtain a decreet; and did enter into a bargain with the Earl of Aboyn, and did dispone to him a considerable part of the said estate, that, by his power and interest in the country, he might be maintained, and be able to enjoy the rest. But, before the granting of the said right to Aboyn, Geight had intented a reduction of the said decreet of nullity; upon that reason,—That the said decreet was given, in respect he had not the writs at that time in hand to produce, and to instruct that he was able to give a right of the said wadset-lands, to be holden of the King; and that they were now found upon search of the registers: so that he had not been in mora; and the not-production of the said writs ought not to be imputed to him, but to the confusion of the times; his writs being scattered, and his father having been long time a sufferer and prisoner, for serving the King.

The Lords found, That the said decreet, being in effect upon a certification for not production, and Geight condescending, and offering to instruct, that he had not been negligent, and the occasion and manner that the said writs were not in his hand; and how he had recovered the same; he ought to be reponed against the same: And that, by the reduction, before the granting of the right to Aboyn, it was res litigiosa; and Aboyn ought to be in no better case than Pitrichie.

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