Click here to view a pdf copy of this documet : PDF Copy
Sir William Bruce having acquired right to the barony of Kinross-shire, did, in anno 1676, make an offer by an instrument to Robert Bogie, proper wadsetter of a part of the said barony, for 10,000 merks, “offering him security for his principal sum and annual-rent, and requiring him to cede the possession conform to the act of Parliament 1661, betwixt debtor and creditor, and protesting, that if he did not cede the same, that he should be countable for the superplus of the rent more than his annual-rent,” and now pursues him to count and reckon. The defender alleged, Absolvitor, 1mo, Because the instrument of offer bears “no production of Sir William's right to the reversion,” and he being a singular successor, never acknowledged by the defender, he was not obliged to cede his possession, and consequently was not countable; 2do, By the said act of Parliament it is declared, “that where the wadsetter is in natural possession by labouring the ground, that he shall not be obliged to remove, but upon warning before Whitsunday,” and this requisition being at Michaelmas, he could not cede his possession, being natural by labourage at that time, so that part of the act to count being only consequent where the wadsetter refuses to cede his possession upon an offer conform to the act of Parliament, this offer not being conform, he is not countable. The pursuer answered, That the act of Parliament requires no production of rights, but only “if the debtor, or any deriving right from him, offer” &c. and here the pursuer's disposition, containing or importing an assignation to the reversion of the barony, is prior to this offer; likeas the defender knew his right, and had treated with him for the wadset. The defender replied, That though the act of Parliament bears not expressly “the production of rights derived from the debtor,” yet it is necessary by the common law, or otherwise a wadsetter behoved to cede his possession at the requisition of any man pretending right; and though the defender had notice of the pursuer's right by hearsay, and had treated with him on that supposition, non relevat, seeing he never saw it, before the offer, nor had he any sasine then registered, nor assignation to the reversion registered.
The Lords sustained both the defences, and assoilzied.
