Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Marquess of Hamilton
v.
Calder

Date: 19 January 1627

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In an action of non-entry betwixt the Marquess of Hamilton against Calder, the Lords found, that the extent of the land ought to be valued according to the quantity and extent whereto it was valued by a contract made by the defender and his mother, wherein the land was designed to be so many pound lands, and according to a decreet, recovered at this same defender's instance, for delivery of the evidents of the same lands, wherein it was called also a land of the same extent. Which designations the Lords found sufficient against the subscriber of the said contract, and obtainer of the said sentence, to bind him to that extent; albeit he alleged that that designation could not bind him thereto, seeing, in these writs, non agebatur to what avail the lands should be extended; but that was the adjection of the writer, whose designation could not make the land more than indeed it was, and could not work against the verity: likeas he produced a service done since, wherein the sworn assizers had extended the same to a far less avail, which ought to have greater faith than a superfluous designation idly adjected in any writ. Which allegeance was repelled, and the extent was ruled according to the said contract subscribed by the party, and decreet recovered by himself; seeing the said service was not retoured, nor passed the chancellary, but was upon a reason stayed, that it should not be expede.

Act. Stuart. Alt. Nicolson. Gibson, Clerk.

Vid. 24th January 1627, L. Glenkindie.

Page 258.