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 Lady Enterkin v. Cunningham of Enterkin
Date: 11 December 1711
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The Lady Enterkin against the Laird. Mistress Catharine Hamilton, Lady Ehterkin, being in possession of her jointure-lands; John Cunningham of Enterkin, her son, alleging she had taken herself to a lesser annuity till the debts were paid, holds a Baron-court, and therein decerns the tenants of the lifer rent-lands to pay in their rents to him; and then, in the tenants' name, raises a suspension upon multiple distress, as not knowing whether to pay their rents to the Lady or to him: and then his girnel-keeper broke up the Lady's girnel, and carried away 33 bolls meal to his own girnel. Upon thir acts of dispossession, she gives in a complaint to the Lords, craving to be repossessed of her lands, and restitution of her meal, and bygone rents, with a sum for her damages.
And this summary complaint being admitted to probation, and falling to be advised this day:—Alleged, There could neither be repossession, nor restitution, till the competition of right betwixt his mother and him were discussed; for, as she craved an additional remunerative jointure, which wanted a warrant, so he instructed, by the tack of farm set to Drumsuy, she had restricted herself to a lesser annuity. And what he did was legal; the rollment of a Baron-court being a judicial deed by our laws, both ancient and modern; and being suspended, the only remedy in form was to call for the suspension and discuss the reasons, which he was willing to debate instanter. And masters have always been allowed to use their tenants' names in double poindings; neither can they disclaim it.
Answered,—The sole question now was the possession; the point of right would come in, in its own proper place; but it was an undoubted principle, that spoliatus ante omnia est restituendus; and that the dispossession was illegal and unwarrantable is evident from the probation. And her possession was neither clam, vi, nee precario; nor a momentary possession, but of a long continuance for sundry years. And his taking decreets before his own Baron-bailie was but a color qucesitus, and a sham-pretence to cover and palliate his oppression. And where forms of law are made use of to colour and varnish plain violence and spuilvie, it is so far from excusing it, that it aggravates the guilt.
The Lords found my Lady ought to be repossessed, but ordained her to find caution to make her intromission forthcoming to any that in the event should be found to have best right; and remitted to the Ordinary to determine the point of right summarily with his first conveniency. Enterkin alleging the meal was yet extant in girnels, and offering to restore it to the Lady; it was found she was not bound to accept it, after it was deteriorated by two or three years' keeping. But ordained him to pay her the price at the fiars of that year; who, for her subsistence in carrying on the plea, stood more in need of money than victual.
