Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Lessly of Balquhain v. Irvine of Drum
1692.
December23,and
January10,
1693.
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1692. December 23.—Lessly of Balquhain against Irvine of Drum, and his administrators, who sought to stop his general adjudication, and restrict him to a partial one, by offering him a progress.
The Lords did not regard his objections against the writs produced as defective; for they supplied that two ways, by referring to his oath, that he knew Drum's right to his lands these 500 years bygone has been incontroverted, and by offering to bring the Chancery-books and other records, for instructing his charters and retours; neither did the Lords notice much Balquhain's condescendence upon incumbrances; for his debts were prior thereto. But they ordained his general adjudication to go out, and would neither stop nor restrict it; because there was no party here to renounce the possession, and dispone the parcel, which was to be given him off, for his money. Though the President and sundry argued, that Drum being a weak man, he was to be repute in the case of a minor; and so his administrators might renounce and dispone. But the Lords thought this would not secure the adjudger, and that thir administrators had not the power of tutors or curators, much less could have a despotic and arbitrary power of consenting, renouncing, and disponing. And though they had all tenderness for supporting this ancient estate, especially when fallen into the hands of one near to an idiot, yet they thought they could not authorize his administrators to such an extraordinary act.
Vol. I. page 538.
1693. January 10.—After a great debate, Lessly of Balquhane's adjudication against Irvine of Drum, (vid. 23d Dec. last,) was ordained to be extracted; though it was urged, to restrict him to a special adjudication, that by the articles of the minute he had obliged himself, on payment of his annualrents, not to be first adjudger. 2do, That they would give him a progress, purge incumbrances, and cede the possession. But they failed in all these.
