Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

John Hamilton of Pumpherstoun
v.
the Lady Cardross

Date: 19 November 1712

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The House of Peers having reversed a decreet of the Lords of Session, reducing a tack of the lands of Broxburn, &c. set by Sir William Stuart of Strathbrock, the Lady Cardross's predecessor, to Alexander Hamilton of Broxburn, his heirs, &c. for the space of three nineteen years after the respective terms of commencement; and removing John Hamilton of Pumpherstoun, his son and heir, from the possession; and having ordered John Hamiltoun to be restored to the possession of the lands, and to have satisfaction for what he hath lost, in respect of the profits thereof, by reason of the decreet reversed: he, in pursuance of this sentence, applied to the Lords of Session, for liquidating what he had lost by his being turned out.

The Lords found the Lady Cardross liable to Pumpherstoun, for the years he was out of possession, for the excrescent duty contained in the tack set by her to the new tenant, more than what was contained in the tack set to Pumpherstoun's father; and for a proportion of the grassum, paid by the present tenant to the Lady, effeiring to the said years; in full satisfaction of Pumpherstoun's damages, through being dispossessed:

Albeit it was Alleged for Pumpherstoun, that the decree of the House of Peers, entitled him not only to the profits the Lady had made by the decreet of the Session, but also to the advantage he might have made, had he been allowed to continue his possession; and therefore she should be liable to him for what profit the land yielded to the tenant put in by her, since that would have fallen to him if he had not been removed:

In respect it was Answered for the Lady, that seeing the decree of the House of Peers orders satisfaction to be given to Pumpherstoun for his loss in general terms, the Lords are left to proceed and determine the same in their judicative capacity, regarding those differences that law makes betwixt possessors bona fide, and vitious possessors or intruders: and the Lady having set the lands to the present incumbent to the best advantage she could, bona fide, from a belief of her having right so to do, and by all the authority our law could give her; she can be obliged to restore no more than what she made thereby.

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