Scottish Court of Session Decisions

Subject_1 WADSET.

Elizabeth Ramsay and Mr Ashton, in Northumberland, her Husband,
v.
Clapperton of Wylie-Cleugh

Date: 18 July 1694
Case No. No. 33.

Same subject.

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The question was, a quo tempore Wylie-cleugh was to count for the superplus mails and duties of the wadset-lands more than paid the annual-rent of his wadset sum? It was contended, it behoved to be from the date of the offer of caution conform to the 62d act of Parl. 1661, between debtor and creditor, obliging them either to cede the possession, or else to impute the superplus fruits in sortem. It was objected against the instrument produced, that it did not bear the production of the factory and procuratory. Answered, it was not required nor called for; in which case it was sufficient, that the instrument bore quod de ejus potestate liquido notario constabat. The Lords repelled this objection. The second was, that though offered caution, yet it was only in general, and did not condescend upon any particular person; nor did it bear that any bond with a cautioner was offered, and so it was null. Answered, they offered to supply it now by finding caution beyond exception. The Lords found the instrument was not in the terms of the act of Parliament, and therefore could not oblige Wylie-cleugh to count for the superplus rents above his annual-rent from the date of it. Yet it was remembered, that in a case of the Earl of Marishal against his wadsetters, it was sustained that there was a general offer of caution, and a condescendence allowed ex intervallo; but this was not so conform to the act of Parliament.

Fauntainhall, v. 1. p. 633.