Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Earl of Nithsdale v. The Duchess of Buccleugh
Date: 21 December 1693
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[See the two prior parts of this Report, Dict. p. 545, 546.]
The Earl of Nithsdale, against the Duchess of Buccleugh, on the £5000 minute. The first defence was against Nithsdale's title, That it was not in bonis of Earl Robert, the philosopher, and so cannot fall to his executor;—that the sum was heritable, as surrogatum in place of lands, and so fell not under confirmation and executry;—and that the Duchess was not bound to pay till the Earl of Nithsdale fulfilled his part of the minute; it being a synallagma, consisting of mutual prestations, and the Duchess is not yet secured in the barony of Langholm. Answered.—This sum was moveable, it neither excluding executors nor bearing a destination of infeftment; and so belonged to him as executor confirmed to the Earl, who entered into the minute; and as to the disburdening the lands of incumbrances, the Duchess was sufficiently secured by an adjudication she had led, and a certification she had obtained in an improbation.
The next point was as to the annualrents.
Alleged.—The minute bore none, and they were only due ex lege et pacto. Answered.—Here it is due by law, being the price of lands. Replied.—It is but a consideration and gratuity given for the Earls of Nithsdale their good-will and kindness; seeing they had irredeemable right, and paid the price before; and so could bear no annualrent.
The Lords thought fit to hear this case in their own presence.
