Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 YULE VACANCY.
Mr James Lauder v. The Tenants Of Cockburn's-Path
Date: 2 February 1677
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Mr James Lauder, sheriff-clerk of Hadinton, as having right, by disposition from two sisters heirs-portioners, to an husband-land in Cockburn's-path, pursues the tenants for maills and duties, and Wauchop of Stottincleuch for reduction and improbation of a right he had got to it from the husband of one of these two women, upon this reason: 1mo, That it was elicited, and called only a factory. 2do, It being subscribed by two notaries for him, there was the interval of some days between their subscribing, and so was null, since the act must be done unico contextu. Farther, the husband's being guilty of adultery, and having confessed it in the kirk-session, that might be the foundation of a criminal process, whereon being convicted, his escheat would fall, and the gift thereof might be taken by Mr James. Yet it was thought the escheat on adultery was not a liferent escheat, which would carry his jus mariti, or the courtesy of Scotland, (for here the wife was lately dead, and there having been a living child between them, he had undoubted right to the courtesy,) but only a single escheat.
The tenants' defence against the maills and duties was, They were tenants to another, by payment of maill and duty, and he not called.
This Newton repelled, as competent against a removing, but not an action for maills and duties. What we were most afraid of, was that our right was null, being granted by a woman clad with a husband, and he not consenting; and it is not enough to say she stands in the fee: therefore, Mr James transacted with the husband and Stottincleuch.
