Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Archibald Murray of Blackbarony v. Sir George Campbell of Cesnock
1693,
1694, and
1696.
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1693. February 8.—The Lords found the Act of Parliament in 1690, anent retouring annualrents in non-entries, to be declaratory, and to draw back to years prior to the Act wherein the infeftment of annualrent was in non-entry, if the action of declarator was posterior to the said Act; as here, not only the declarator, but the very gift, were after the date of the Act. Some doubted what the meaning of this pursuit was; whether he would have exacted the full annualrent for the non-entry, because then valebit seipsum; and also have exacted it over again by the obligement of the heritable bond: But others conjectured that his design was, that Cesnock being one of the forfeited persons who, by the act of restitution in 1690, have right to claim an abatement of annualrents during the forfeiture, Blackbarony, the donatar, has intended, by this non-entry, to have got payment of these years' annualrents. Some of the Lords did not think the Act anent retouring annualrents declaratory, so as to cut off superiors for years preceding that law; which is not to be inferred except where it is expressed.
Vol. I. Page 555.
1694. July 13.—Sir Archibald Murray of Blackbarony against Sir George Campbell of Cesnock, about the non-entry. The first question was, Whether the infeftment was holden of the king or not; seeing the confirmation did not bear whether it was a me, or de me; and Mr William Wallace's heirs had seemed to make their election, by taking a precept of clare constat from Cesnock: yet the Lords found it was held of the king; and so the non-entry was in his hands, because it bore tenen. de nobis et successoribus nostris. The second point was anent the receipt of the renunciation, which bore that they had renounced the said infeftment of annualrent, except as to the sum of 19,000 merks. A doubt arose, 1mo. If this could be divided, so as not to acknowledge that sum resting. 2do. If the real right was reserved, pro tanto, for security of that 19,000 merks, or if it was a total renunciation, and only a personal obligement for that sum.
The Lords resolved first to expiscate anent the existence of the said renunciation, and to examine Blackbarrony, his daughter-in-law, &c. about it; as also anent the transaction alleged made by Blackbarrony with the Earl of Melford for 23,000 merks.
Vol. I. Page 631.
1696. February 27.—In the process, Sir Archibald Murray of Blackbarrony against Sir George Campbell of Cesnock, for a declarator of the non-entry of an infeftment of annualrent, which Mr William Wallace, his daughter-in-law's father, had in these lands:—Alleged,—There can be 110 declarator of non-entry, because the infeftment was extinct;—1 mo. by extrinsic payment; 2do. by a renunciation.—See February I671, Wishart against Arthur. Answered,— Extrinsic payment cannot extinguish in prejudice of the superior's casualty; and the renunciation was null, being granted by one not validly infeft.
The Lords sustained the declarator, but restricted it to serve allenarly for a security to Blackbarrony of the sum of 19,000 merks, yet resting of that heritable bond; otherwise the Lords inclined to have repelled it. The non-entry of annualrents is now rectified by the Act 1690.
Vol. I. Page 716.
[See another Case between thir Parties, 11th February 1697, Dictionary, page 970.]
