Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
David Ogilvie v. Farquharson Of Fingean
Date: 20 December 1698
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Crocerig also reported Mr David Ogilvie, late minister at Birse, against Farquharson of Fingean, for his proportion of £20 Scots, modified and assigned for his grass.
Alleged, 1mo. This designation was not in terms of the Act of Parliament 1663, which speaks only of pasturage, and not of money. Answered,—You were present at the designation, and consented to it as easier for you; and if grass had been designed out of the nearest Kirklands, you behoved to have relieved that heritor pro rata.
Replied,—Consent non relevat; because, not being subscribed, there is still locus pœnitentiœ, seeing it introduces a constant servitude upon my heritage. Duplied,—Resiling takes only place where the deed requires a subscription under my hand to the accomplishing and perfecting it; which this designation does not.
The Lords repelled the defence, in respect of the answer that he consented to be proven by his oath.
2do. alleged,—You can claim for no years since 1689, because you was deprived by the Council for not obeying the proclamation, commanding them to pray for King William, in April 1689; and though the sentence be not till 1697, yet it must be drawn back to its cause.
Answered,—These Acts do not take effect ipso jure, but only per declaratoriam, when they are applied by the sentence of a judge, and have no retrospect; and the Act of Parliament 1693 gave these ministers a term to take the oaths; likeas it has been found, both to Episcopal and Presbyterian ministers, that they get the stipend for such years as they served through connivance, aye till they were removed by a sentence.
The Lords likewise repelled this defence in respect of the answer aforesaid.
