Scottish Court of Session Decisions

Subject_1 HYPOTHEC.

Robert Dalrymple
v.
Earl of Selkirk

1751, July 18.
Case No. No. 17.

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Earl of Selkirk, as creditor to Captain John Dalrymple, nephew to the late Ear] of Stair, and brother to this Earl of Dumfries, adjudged from the Earl of Dumfries and the first Earl of Stair, as charged to enter to Captain Dalrymple, certain lands part of Earl of Stair's estate, wherein he had infeft his nephew, held of the Crown, to qualify him for voting in elections; and having pursued maills and duties, Mr Dalrymple of Stair, as heir of provision to the late Earl, produced his rights to these lands and competed with him. Earl of Selkirk, on a diligence for recovering his author or debtor's rights, cited Robert Dalrymple, writer to the signet, who produced dispositions of the lands by the last Earl of Stair to Captain Dalrymple, with charters and sasines upon them, but claimed a hypothec for payment of the expenses of completing all these rights which he said he was employed by Earl of Stair to expede, and kept the writs for his payment. Kilkerran, Ordinary, seemed to think the hypothec was not good in this case against the pursuer, who might use the writs in modum probationis, as we found in the Earl of Sutherland's case in a declarator of recognition of the estate of Skelbo,—but I observed that would not apply to the case for that the pursuer was using these writs not in modum probationis of a fact, but as his titles to the maills and duties, and as now his writs by his adjudication. The Ordinary and the Court were satisfied with the distinction, and therefore remitted it back to the Ordinary that he might sustain the hypothec.