Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Stair v. Cannon of Heidmark
Date: 28 December 1703
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Cunningham of Drougen wadsets some of his lands, in 1661, to Heidmark, redeemable on payment of 2500 merks; but, in regard the rental of the lands then exceeded the annualrent, therefore the wadset bears a clause, that Heidmark shall pay or allow £35, as the excresce of the rent above the annualrent. Lord Stair having acquired the reversion of this land, he uses an order of redemption; and, in the declarator, a long debate followed as to the possession; but the Lords, abstracting from that, ordained them to discuss the point of right. It was alleged for my Lord Stair, That Heidmark's wadset was now more than satisfied and paid, by the said excrescent duty of £35 yearly; which, being deducted annually these forty years bygone, will absorb and exhaust the principal sum. Answered,—That excresce can never be imputed to extinguish his wadset; but you ought, in your order, to have consigned the whole sum; such reversions being stridi juris, and to be implemented in forma specifica, and not by equipollents; as has been found by the Lords, 12thof November, 1675, Home of Plendergeist against Home of Linthill; and in President Falconer's Observes, 9th December, 1685, Cunningham against Dowie. Replied,—Extrinsic compensations in orders of redemption have been refused; which is the case of the decisions adduced: but, where they are a part of the wadset-right, et pars contractus et in gremio juris, they have been in use to have been sustained. Thus a decreet was found equivalent to money in the redemption of a wadset betwixt Hog and Hog, 2d January, 1667, because it was a debt founded upon one of the articles of the contract, and so was intrinsic.
The Lords found this £ 35 of excresce behoved to be deducted off the wadset; but, whether it should defaulk yearly, or only in cumulo from the date of using the order, the Lords ordained the parties to debate, a quo tempore it should commence, and if it was a proper or improper wadset; seeing, by the ignorance of the notary, who is the writer, it seems to participate something of the nature of both.
