Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Dame Margaret Baillie, Lady Luss, and Sir Robert Sinclair, v. The Lady Idington
Date: 14 June 1678
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Dame Margaret Baillie, Lady Luss, and Sir Robert Sinclair, now of Loch-end, advocate, pursue the Lady Idington, and the other seven daughters of Mr William Kelly, and the representatives of such of them as are dead, upon the 57th Act, Parl. 7, James III. to enter to the superiority of some lands in Newton-Leys, to the effect they give infeftment to the pursuers of the property; otherwise that the pursuers might be infeft by the King, upon precepts furth of the King's Chancery, and they lose their superiority ad vitam.
In this process some of the defenders compeared, and offered themselves willing to enter the pursuers, and give them either a charter, or precept of clare constat, in so far as concerned their shares and proportions. The pursuer Alleged, She was not obliged to enter that way, except all of them concurred jointly, and were ready to enter her quoad the whole; else this were to divide her security, and make it party-coloured, the one half holden of them, and the rest of the King; and the superiority was jus individuum, and she could not be put to double charges, but behoved to be entered either wholly by them or wholly by the King.
Answered,—The contumacy of those heirs-portioners who compeared not, could neither in law nor reason be prejudicial to the rest, who were willing to enter the pursuer as to their parts.
This being taken to the Lords' answer, and reported upon the 30th of July 1678, the Lords found the eldest daughter and her heirs were only liable in law to enter the vassals; the superiorities, as indivisible, belonging to her; but the obventions, and emoluments redounding therefrom, were divisible among all the heirs-portioners. See, anent this, a remark in another MS. which begins with the account of the General Assembly held at Glasgow in 1638, fol. 29.
N.B.—In regard of the contumacy of the eldest, he was admitted by the King.
