Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Johnston v. Hamilton of Gairen
Date: 1 February 1694
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Phesdo reported Robert Johnston, son to James Johnston, writer to the signet, against Hamilton of Gairen. The apparent heir of Gairen had got the possession, by buying in an apprising. Johnston, who had another right preferable to that apprising, pursues for maills and duties. Gairen offers to prove his apprising satisfied, and paid by intromission with Whitehead of Park's estate; which was also comprised for the same debt. Johnston finds it relevant, of consent; but alleged it was only proponed to retain the possession of the lands two or three years longer, during the dependence of the count and reckoning, wherein he would certainly succumb; and so these years' rents would be clearly lost; and, therefore, he offered to find caution, if Hamilton prevailed, to refund the rents.
The Lords thought this very equitable, if it were not to turn one out of his possession; and, therefore, they fell on this medium:—that Gairen should continue to possess, but find caution for one year's rent, in which space he might bring his account to a period, if he was serious in it, to be refunded to Johnston if he did not prove him paid. Some thought it hard to put one in possession to find caution. But it was better so, than to put the other, (whose right was unquestionably preferable, if not paid,) or to sequestrate the rents by placing a factor.
