Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir James Cockburn v. The Laird of Linthill
1693 and
1694.
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1693. January 18.—The Lords found Sir James Cockburn, having the rents of the lands of Whitchester in his hands, for the three years he possessed, he could retain no more but the yearly annualrent of Crawford's sum, as it fell due for these three years; and that Home of Linthill behoved to come in secundo loco for the annualrent of his sum, whereon he craved compensation, as assignee to the Lady Lumsden's liferent on these lands of Whitchester, as being the next preferable right; and that Sir James Cockburn could not exact the rents, nor ascribe his possession to the annualrents of Crawford's sum, for years subsequent to the 1681, which was the last year of his possession, though the compensation was not proponed nor applied by Linthill till 1687. And the Lords did not regard whether Linthill intimated his right before, or whether Sir James knew of it, seeing she had a decreet of poinding of the ground on her infeftment.
Vol. I. Page 546.
1694. January 10.—Sir James Cockburn of that ilk, against Home of Linthill, mentioned supra, 18th January 1693. The Lords thought the intimation made of the assignation to Sir James was not sufficient to put Douglas of Lumsden, the debtor and heritor, in mala fide to pay these years assigned to Elizabeth Lyell, the lady, and Linthill's cedent: but laid hold on that allegeance, that the lady's discharge produced did not proceed upon payment of money for these years assigned; but the assignation was held and reputed as payment, and so allowed in the count betwixt them. But they would not admit this to be proven by the writer and witnesses in the discharge, but only by Lumsden's oath, (to whom the discharge is granted;) but permitted them to confront him with the lady and the witnesses, to refresh his memory, at the time of his deponing, if they thought fit to cite them for that effect.
