Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Maxwell v. The Viscount of Tarbet
Date: 7 December 1694
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John Maxwell, grandchild to the Bishop of Ross, having obtained decreet against the Viscount of Tarbet for some feu duties of lands, now belonging to Tarbet, holding of the Bishop of Ross;—Tarbet's reasons of suspension were, lst. The lands pertained to the Laird of Innes at that time, and he offered to prove he had paid these feus; 2d. Esto they were owing, the most he could crave was to poind the grounds; and cannot make him personally liable for any years preceding his possession and entry to the lands.
The Lords thought both the reasons relevant; but, in regard there was a decreet in foro against Tarbet for these feu-duties, they desired the reporter to consider the decreet, if these allegeances were proponed, and if Tarbet got a term to prove payment, and succumbed, so as the term was circumduced against him; for in that case he ought not to be reponed. And if, in the first summons, he was craved to be personally liable, and proponed not this defence against it, then it was competent and omitted.
