Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Lord Halton, and Sir Robert Miln, v. Lord Yester and his Children
Date: 23 February 1694
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The debate was anent the bygone rests of rents, due by the tenants, or in the factor's hands, preceding the late Earl of Lauderdale's decease, in June 1691, Whether they fell under his executry, or belonged to his son Halton, and Sir Robert Miln his assignees; for this onerous cause, that they were applied for defraying his funeral charges; or, if they belonged to Yester, who was infeft in the lands, on his adjudication under the Great Seal; and the other adjudgers.
Answered,—If Yester's annualrents, preceding Whitsunday 1691, when Lauderdale died, were then owing, then it was just he should affect these rents, due preceding that term; but they offered to prove he was paid till then; and, by the decreet of ranking, Yester had no preference but for his annualrents allenarly.
Replied,—The payment I got was not out of these rents, but out of years subsequent to 1691; and, therefore, in so far as I want any annualrents of years since Whitsunday 1691, I must recur to make these rests liable for the same.
The Lords found, as to 10,000 merks Halton had paid of these annualrents to Yester, that he succeeded in his preference; and declared these rests subject to him for reimbursement of that sum. And, as to the remanent bygone rests, found Halton and Sir Robert also preferable, in so far as Yester and the other adjudgers were satisfied of their subsequent years' annualrents: but, if Yester fell short, then found, that he had recourse to affect the bygones, to make up the deficiency; though some contended, that it behoved to be interpreted singula singulis, that each year's rent should pay that year's current annualrent.
