Scottish Court of Session Decisions

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

The Earl of Aboyne, and the Lord Pittrichie,
v.
The Laird of Gight

Date: 5 July 1676

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In the above-mentioned action, at the instance of my Lord Pittrichie, after decreet pronounced in Pittrichie's favours, finding the minute null, because of non-performance on Gight's part; notwithstanding thereof, the Lords, upon an offer to make a sufficient security and performance, did grant a certain term for production of such securities as would make a perfect progress; and, after production, both parties being to be heard, and the Earl of Aboyne admitted for his interest,—it was alleged for Pittrichie, That the writs produced could not satisfy the minute:—

1st. Because Gight is obliged to dispone to Pittrichie the lands of Auchincreive and Shalmanae, with the teinds thereof, by a collateral security flowing from himself, to be holden of the king; whereas he himself hath no right from the king; but only a security by a disposition, from the comprisers of his estate to the Laird of Phedertie, and from Phedertie to Gight, but which are to be holden base.

2d. It was alleged for the Earl of Aboyne, That there being a decreet in foro contradictorio in favours of Pittrichie, he was in bona fide to contract with him; and, being a singular successor, Gight could never be reponed to his prejudice, and therefore craved that the Lords would declare, that, albeit it should be found that Gight had satisfied by production, it could only be the ground of a personal action against Pittrichie, but could never militate against Aboyne's real right, nor reduce the same.

It was replied to the first, That the minute was opponed; which is not conceived by way of obligement, to dispone the lands to be holden of the king, but only impersonaliter;—viz. That Pittrichie should have these lands sufficiently secured to him, to be holden of the king; which can never be controverted by himself, or any other person whatsoever; seeing, he hath not only a gift of recognition but a declarator passed thereupon, whereby he is already the king's immediate vassal: and now having a perfect right from the whole comprisers and Gight himself, unless he can condescend that some other than the king, Gight, or the comprisers, hath a better right, he can never quarrel the production, or the security offered.

It was replied to the second, That the Earl of Aboyne can be in no better case than Pittrichie; because, albeit he be a singular successor, yet his right was granted after res fuit litigiosa, and during the dependence of the process betwixt Gight and Pittrichie; there being a reduction raised of Pittrichie's decreet, the event whereof is specially reserved in the disposition made to the Earl of Aboyne.

The Lords did repone the Laird of Gight against the foresaid decreet in foro; he having purged himself, by oath, that he was not master of the writs now produced, when sentence was given, but had recovered them since by diligence, and dealing with Phedertie, and so was not in mora: and likewise they found, that he ought to be reponed against the Earl of Aboyne; because res fuit litigiosa the time of his right, which was burdened with the event thereof: which sentence, as it was founded in justice and equity, so it was generally approven by all who were not interested; seeing it restored Gight to a considerable estate and ancient family, which had been totally taken away upon a naked failyie of non-performance of a security to tithes, the value whereof was most inconsiderable.

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