Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Duke and Duchess of Hamilton v. Hamilton of Bangour
1693 and
1694.
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1693. Feb. 7.—The Lords found Trotter the adjudger's instrument of offer of a year's annualrent of the sum, and a bond for the rest, to make up a year's rent, with the charter to be signed, bearing salvo jure domini superioris, was sufficient to stop and purge the non-entry, though caution was not offered; albeit it was only offered to the Duchess, and the Duke cited at the market-cross, he being then out of the kingdom.—See Stair, 9th February 1669, Black. But, in regard the Duke's procurator then offered to pay the adjudger the principal sum, and that it did not appear whether he had a special mandate to that effect; therefore the reporter was to hear them, if the superior could redeem after the legal, as well as before, on the 36th Act of Parliament, 1469, allowing the over-lord, on the payment of the sum for which the creditor apprises, to take the lands to himself; which is called, by the lawyers, regressus seu retractus feudalis, et redemptio dominica.
Vol. I. Page 554.
February 17.—Duke Hamilton's declarator of non-entry, against Hamilton of Bangour, mentioned 7th current, being again reported,—the Lords, as to the first particular, adhered to their former interlocutor, that the offer given to the Duchess, and charge to the Duke, at the pier and shore of Leith, (being then out of the kingdom,) was sufficient to stop the non-entry, though there was no offer nor consignation made when the Duke was charged to receive his vassal but found, quoad the second point, that the bond offered for the year's rent was not valid, being not subscribed at the margins; and is now cancelled; and was a bankrupt: therefore they decerned in the non-entry; and did proceed no farther to examine the other objections made by the Duke against that offer.
Vol. I. Page 562.
1694. February 13.—In Duke Hamilton's declarator of non-entry, against Hamilton of Bangour, mentioned 17th February 1693: in regard the pursuer's advocates would not insist, because the Duke was out of the kingdom; therefore the Lords declared the non-entry should not run against the defender, who was ready to debate instanter, till the Duke insisted; for it was hard, by the pursuer's tergiversing, that the defender should still be liable in the maills and duties, if the non-entry should be found: though it was alleged they had another remedy, by offering to enter by a charter, and a year's rent to the Duchess; and how long ordinary remedies were competent, we ought not to recur to extraordinary methods.
But the Lords considered they had offered already; and this new offer might weaken the former, even though done under protestation.
