Scottish Court of Session Decisions

Subject_Poinding of the ground—Right in security.— Headnote:

A title was made up in the person of Major Robert Anstruther, as heir to his father in certain lands, which, in gremio, declared an annuity of £1000 by his father in favour of Lady Anstruther to be a real burden. Lady Anstruther raised an action concluding for decreet for letters of poinding of the ground for her annuity, against which Major Anstruther and James Ronton his trustee pleaded in defence, (1.) that her title was liable to an objection, as the title in his person was not regularly made up; (2.) that she should be viewed, in the circumstances, as already in possession, through the medium of a trustee, alleged to be hers; and (3.) that he had large counter-claims of accounting against her. Lady Anstruther answered (1.) that she stood infeft in a real right which was neither reduced nor challenged, and which the defender could not challenge without repudiating his own title; (2.) that the trustee was not her trustee at all; and (3.) that nothing was due under the alleged accounting, and, at any rate, that the arrears of a liquid debt, especially of the nature of an alimentary annuity, must be paid in the mean time, without abiding the issue of an action of accounting. The Lord Ordinary repelled the defences and decerned in terms of the libel with expenses; and the Court, on a reclaiming note, adhered with additional expenses.