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.
Hamilton of Monkland v. Hamiltons of Obbiston and Wishaw
Date: 26 December 1711
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William Hamilton of Monkland was forfeited, anno 1673, for his accession to the rebellion of Bothwell Bridge; in so far as he sent turkeys, and other victuals, and provisions to their camp; though he alleged he was forced, to save his lands from being plundered; and his forfeiture being gifted to the Earl of Melfort, he caused try at his lady and friends, what they would give for a composition; and their utmost length being £1000 sterling, at last Orbiston and Wishaw were prevailed with to give 40,000 merks; and they took an assignation to the gift of forfeiture, and put in one James Black to be their factor, and entered in possession anno 1686. On the Revohition, Monkiand not only got his doom of forfeiture rescinded by the general great act rescissory in 1690, but farther obtained a special act, reponing him to the bygone rents of his estate, preceding 1689, against all intromitters, only burdened with the payment of the £1000 sterling Monkland's friends had offered to give. But he dying, and leaving his son minor, the process against Orbiston and Wishaw, for restitution of his rents, slept, till it was of late wakened.
Against which it was alleged for Wishaw,—That truly his meddling and interposing was in favours of Monkiand, without any design of profit; and he was always ready to count for his actual intromission: and to stretch any farther is odious and unfavourable.
Answered,—He had proven the rental, and their entry to possess; and under whatsoever notion or capacity they fell to be considered, they behoved to count to him conform to the proven rental, whether they called themselves his trustees, or creditors, or assignees, to Melfort the donatar; and as he would have been bound to count for the whole, so must they: Which rule they did not stretch any farther than in the terms of the late Act of Sederunt, 20th November last, that he may give in a charge against himself, that, under certification if it be short, he shall be liable in the double; and in his discharge all legal deductions shall be allowed, as cesses, minister's stipends, depauperation of tenants, waste rooms, &c. And to restrict his counting to actual intromission were both unjust and ridiculous. For, 1mo, It is contrary to the express terms of the said rescissory act 1690, which ordains all who obtain special acts not only to be restored per modum justitice, but also to get repetition of all bygones; and on that very clause did Jerviswood recover from the Duke of Gordon, and Marchmont from Seaforth, all their bygone rents. 2do, All lawyers, and particularly Antonius Mattheus de Criminibus, agree that the natural effect of a restitution per modum justitice, is to repone them cum omni causa. 3tio, You can be in no better case than an adjudger or appriser, who, entering once into possession, must continue and count for the whole, unless they instruct that they were debarred: Even so, you having come in the donatar's right, and entered to the house and yards, even to the carrying away of the kitchen chimney, and to a promiscuous possession over all the barony, getting more or less from every tenant, you must count for the whole; seeing it is not pretended that Monkland's lady or relations had intromission with a sixpence, or that he was interrupted by them or any others in the peaceable possession till after the Revolution: and our law has ever sustained the entry to possession of a part sufficient to make them count for the whole, unless debarment be proven; as is clear from Stair, lib. 2, tit. 1, sect. 13, and from Dury, 14th January 1630, Hunter against Tenants and Hardy; and likeways from Spottiswood, voce Removing and voce Possession, where possession of a part of land validates a base infeftment quoad the whole, being unum continuum tenementum; and, in a cause betwixt Merchiston and the Goodman of' Wright's houses, by apprehending a possession of a part of the teinds, the pursuer censebatur fuisse in possessione totarum decimarum. Neither does this go so much upon the head of “ought and should,” as that their uplifting a part presumes their intromission with the whole, unless they tell who got the rest, seeing no other had a title to uplift but they.
Replied,—Their case was carefully to be distinguished from the donatar's; for they were assignees for an onerous cause, and now, after twenty years, could not give that satisfaction demanded, but were willing to count to the utmost penny received; and no rigour of law can seek more. And where the Act speaks of counting for intromissions, it must be understood of actual intromissions, that being the genuine grammatical sense of the word, and not to be strained to remote consequences.
The Lords thought the case new, and would not summarily determine it on the debate, but ordained the parties to inform.
