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Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VII.
Whether a preferable infeftment without interpellation will induce mala fides.
The Earl of Argyle v. The Lord Macdonald
Date: 14 December 1676 Case No. No 31.
In the reduction of a feu ob non solutum canonem; found the defender was in bona fide not to pay; having the first disposition of the superiority from the common author, though the pursuer was first infeft; the puriuer having done nothing on his right to wake interruption.
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The Earl of Argyle having pursued the Lord Macdonald, for reduction of a feu holden of the pursuer ob non solutum canonem; it was alleged, That the defender had a disposition of the superiority from Locheal, before my Lord Argyle's right, by a disposition likewise from him: And though my Lord Argyle having completed his right before the pursuer, by an infeftment upon the same, will have right to the feu-duties after his infeftment; yet the defender had right to the bygones by the foresaid disposition made to him; which, being of the lands, and superiority, and made to the vassal himself, was, upon the matter, an assignation to the feu-duties, and a discharge. And farther, That, as to the feu-duties after my Lord Argyle's right, he was in bona fide not to pay the same, having the foresaid disposition as said is: And my Lord Argyle having done nothing upon his right to make interruption; and theresore the summons ought not to be sustained upon cessation and not-payment, before intimation of the pursuer's right to the defender.——Both which allegeances the Lords found relevant.
In the same case, the Lord Macdonald having proponed an allegeance, viz. That my Lord Argyle was obliged, by bond, to warrant Lochbeal at the hands of the defender; and of any pursuit competent upon the said disposition, made to the defender, et quern de evictione tenet actio, agentem repellit exceptio: And the same being found relevant, the defender giving his oath of calumny thereupon, the Lords, in respect the defender being in town, had refused, at least had not come to give his oath of calumny, had decerned: But the Lord Macdonald having intented reduction of that decreet, upon offer to give his oath of calumny, upon pretence, that it was towards the end of the Session, when his oath of calumny was craved; and that upon some occasions he had been forced to go home: It was alleged for the Earl of Argyle, That upon Macdonald's refusal to give his oath of calumny, it was, in construction of law, a calumnious allegeance, and could not now be received; and the greatest favour could be shown to him, was, that he should be heard to verify the same instanter.——The Lords did decern, superseding extracting until a day in January; that, in the mean time, the defender might verify the said allegeance, having taken his path of calumny, that the writ was not in his own hand. See Oath, of Calumny.
Act. Lockhart & Bernie.Alt. Cuninghame & Thoirs.
Fol. Dic. v. 1. p. 109. Dirleton, No 401. p. 197.
