Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

John Inglis
v.
Gilbert Kirkwood

Date: 26 July 1627

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There was an action of spuilyie of the teinds of Killeith, pursued by John Inglis, merchant burgess of Edinburgh,—(who had right thereto, by virtue of a tack set by the town of Edinburgh to the Lord Salton, which tack was assigned by him to the Lord Ochiltrie, by whose rebellion the right thereof fell into the king's hands, and was gifted and declared in favours of Caprington, who made Anna Ker, daughter to the Lord Jedburgh, assignee thereto, which Anna transferred her right to the same in John Inglis's person,)—against Gilbert Kirkwood. Alleged, Absolvitor; because any intromission the defender had with the teinds libelled, was by virtue of a right or translation, granted to him by James Donaldson, of the foresaid tack of the teinds of Killeith; which James Donaldson had assignation thereof made to him, by the Lord Ochiltrie, in anno 1614; by virtue whereof the defender and his cedent have been in peaceable possession of the said teinds, ever since 1614; and have paid the tack-duty thereof, all the years bygone, to the town of Edinburgh, extending to £40. Replied, The said translation and disposition of the foresaid tack, made to James Donaldson by the Lord Ochiltrie, is null, as being made by him stante rebellione, in prejudice of the king and his donators; and so the excipient and his author were in mala fide to continue their possession by virtue of that null right. Duplied, His right, clothed with so many years' possession, cannot be quarrelled, as being granted stante rebellione, except it were alleged that the donator had obtained gift and declarator of the Lord Ochiltrie's escheat, before his said translation made to James Donaldson, without which there was no deed done to put the said James in mala fide to accept the said assignation from the rebel after his rebellion; seeing it is daily observed that a disposition of moveables made by a rebel, in favours of a creditor, is sustained, being granted before the gift. Triplied, The foresaid assignation made by a rebel is null, being granted after that the rebel's goods were acquired to the king by his rebellion. And as to the argument, a simili, anent the disposition of moveables to a creditor, it holds not; because the same is only introduced in favours of a creditor who has apprehended possession of moveable goods before the gift, and so has made them his own bona fide; and the most that this could infer, is to make the defender and his author to be free of all action of repetition of the teinds intromitted with by them, before the gift and declarator; quia, bona fide, fecerunt fructus suos; but cannot liberate them from their intromission since the declarator. The Lords repelled the exception and duply, in respect of the reply and triply.

See the preceding case. See also The Laird of Caprington against the Tenants of Polquhairn, 1629, Dec. 18.

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