Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

John Macmillane
v.
John Brown of Mollance

Date: 19 January 1664

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Apud Edinburgh, 19th January, 1664, licet hic scribatur.

By a contract of wadset, in 1648, William Macmillane in Bar, lends to John Brown of Mollance 1000 merks; wherefore Mollance wadsets and dispones to him the lands of Garranton, lying within the parish and barony of Crocemichell, and stewartry of Kirkcubrigh, for the yearly payment to him of 80 merks; always redeemable to him upon payment of the said 1000 merks. John Macmillane, son to the said William, registers this contract; and, upon his decreet of registration, charges John Brown of Mollance, son to the said John, granter of the wadset. This charge he suspends, on thir reasons, 1mo, Because the charger in 1658, assigned his brother William to 400 merks of the said 1000 merks; contained in the contract; which assignation was duly intimated to him; and conform thereto, he had paid the said 400 merks, as the [said] William his discharge thereof produced did prove. As [to] the remaining 600 merks, the suspender, by an authentic instrument, taken in a notary's hand thereupon, offers him to prove, that conform to an agreement and condescendence betwixt him and the charger, he made real offer to the charger of 400 merks thereof. As to the other 200 merks, the same is arrested at the instance of two several persons in his hands, as the copies of the said arrestments delivered to him prove; so that, till they were loosed, he could not obey this charge. At the calling of this suspension, there were farther thir eiked reasons added, 1mo, The letters ought to be suspended, because, in the contract of wadset, there is a clause of requisition on forty days; but so it is, no requisition was used, at least no instrument produced for proving the same. 2do, There was at the time of the said contract of wadset, a back bond granted by John Macmillane, the charger's father, whereby he superseded, the exacting of the said 1000 merks from the suspender's authors, during all the days of Rosina Mackantney, the charger's mother's lifetime, and for thirteen terms thereafter; but so it is, the said Rosina died but in 1659, and there are not thirteen terms elapsed since. Igitur, the letters must be suspended. 3tio, The annual-rent must be restricted to six of the 100, which is at eight in the contract. To thir it is answered by the charger's procurators, 1mo, That he acknowledges his assignation of 400 merks of it to his brother; and therefore restricts his charge to the remaining 600 merks. 2do, To the clause of requisition contained in the contract, he fulfilled the same; for proving whereof, an instrument of requisition, taken in 1658, is produced. And for the annual-rent, craves but six for the 100. 4to, As for the second eiked reason, (which the suspender's procurators declared they insisted on,) and for the eliding thereof, there is produced a bond of corroboration granted by the suspender, whereby, in 1663, he obliges him to pay to the charger the said sum of 600 merks, (and that notwithstanding of any suspensive clause contained in the said back bond,) betwixt and July next.

In respect of which answers, the Lords, (notwithstanding of the reasons of suspension, both libelled and eiked,) found the letters orderly proceeded; and ordained the same to be put to further execution, ay and while the suspender pay to the charger the sum of 600 merks, whereto the charger restricts his charge, with the ordinary annualrent at six for the hundred.

Suspender, James Brown. Alt. Mr. William Maxwell. Signet MS. No. 90, folio 33.