Scottish Court of Session Decisions

Subject_1 HYPOTHEC.

Robert Dalrymple
v.
Earl of Selkirk

Date: 18 July 1751
Case No. No. 17.

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The late Earl of Stair having employed Mr Robert Dalrymple to write dispositions, and expede charters and sasines of some lands in favours of his nephew the deceased Captain John Dalrymple, to qualify him to vote at elections,—Earl of Selkirk, as creditor to the Captain, adjudged these lands from his heirs, and pursued maills and duties; wherein compearance was made for Mr Dalrymple, now of Stair; and Earl of Selkirk called Mr Dalrymple on a diligence to produce the Captain's rights; and he pleaded his right of hypothec till he was paid his account. Lord Kilkerran, Ordinary, seemed to think the hypothec not good in this case, and that the pursuer might, without paying the account, force production of them in modum probationis, (agreeably to the decision Earl of Sutherland against Coupar, No. 8. supra.) But on a reclaiming bill I observed that the cases were different. There the Earl of Sutherland used them only to prove a fact, that the vassal had committed a feudal delinquency to infer the recognition; but here the pursuer was using these writs as his authors, and consequently his own titles to the lands and to the rents sued for; and the Lord Ordinary and the Court agreed to the distinction, and therefore remitted the cause to the Lord Ordinary.