Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
George Young of Winchburgh v. William Nicol, Trumpeter
Date: 15 November 1679
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George Young of Winchburgh charges William Nicol, trumpeter, to count to him for the assignation he had given him to Kennoway's back-bond, and to the gift of Hugh Sinclair's liferent-escheat. Nicol's reason of suspension, with respect to the gift of the liferent-escheat, was, that he had done all legal and necessary diligence against the tenants, by imprisoning them; and they came out upon a suspension and multiplepoinding, wherein, at the discussing, many creditors of Hugh Sinclair's, who had real rights on the lands, were preferred to him, and he secluded and debarred by them, they having been clad with possession prior to Hugh Sinclair's denunciation to the horn.
Answered,—Ought to be repelled; because it is offered to be proven, that the rent of the lands falling under the escheat are worth L.200 sterling per annum; and that the annualrents of the preferable infeftments were within 2,400 merks yearly, so that there was an annual excrescence of 1,200 merks yearly, which Nicol might have uncontrovertedly affected; and so, not doing it, he was in mora.
Newton very justly appointed both parties to count and reckon, and George Young to prove the rental of the escheat lands, and William Nicol to prove what preferable rights debarred and secluded him from the possession, that, ex eventu of both probations, it may appear if there was any excrescence.
Then Nicol alleged,—He could do no diligence on the back-bond, because Kennoway died shortly after, and the papers were not delivered to him; and, when he spoke to Kennoway's relict to denude, she craved payment of the expense her husband was at for leading the said apprising, conform to an express quality and condition in the back-bond.
Answered,—Oppones Nicol's obligement to do all legal and necessary diligence upon the back-bond, so that he should have pursued Kennoway's representatives thereon.
This being reported on the 21st of November thereafter, the Lords found, that Nicol, having accepted an assignation to the back-bond, he, by the quality of his assignation, was bound to have done diligence thereon.
