Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Sir Alexander Urquhart of Cromartie
v.
Walter Chirron

Date: 4 December 1666

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Umquhile Sir Thomas Urquhart of Cromartie, having borrowed from umquhile Mr William Lumsdain, the sum of 4000 merks, dispones, for his security and until he be paid, a tenement of land within the burgh of Banff, with the salmon-fishing upon the water of Doveran; and, in the reversion, it is expressly provided, That it shall not be lawful to the said Sir Thomas to redeem the foresaid lands, but by consignation of the principal sum, and the haill bygone annualrents that should not be satisfied by his intromission. Sir Alexander Urquhart having right, by apprising, to the said lands and fishing, and reversion thereof, has intented action, for count and reckoning, against Walter Chirron; who has now right to the wadset, for the surplus duty of the said fishing, for all years and terms since the date of the wadset; in regard the foresaid right of wadset granted to Lumsdain, was only in security and repayment of his money. After dispute in the cause, the Lords found, that the foresaid right of wadset, being only a right for security, could not authorise the defender's author to bruik the haill duties of the foresaid fishing, or to intromit therewith; and therefore, ordained the defender to condescend by wrhat right he entered to the possession of the said fishing; and how long his author did possess the same; and what the yearly rent did extend to.

The defender condescended as follows, viz.:—That he entered to possession of the said fishing, or to intromit, in anno 1650; and that, by virtue of the foresaid right of security, disponed to him by Mr William Lumsdain, son to umquhile Mr William. And otherways, that he had another right from the said Sir Thomas :—In anno 1657,700 merks were eiked to the reversion; of which right there is a power to possess till the redemption; and that the fishing was worth 13 barrels of salmon yearly.

It was alleged for the defender, That he could not be liable to count for the salmon-fishing; because it was a casual rent, like jactus retis, and so fell not under the act of Debtor and Creditor; the act being only in relation to teinds and lands. 2do. That he could not be liable but since the date of the act; seeing the act could not be drawn back before the date. 3tio. There wTas no caution offered for payment of the annualrent; conform to the tenor of the act. 4 to. Albeit they were liable to count, that they behoved to have allowance of the annualrent of 700 merks, contained in the eik to the reversion.

Whereunto it was replied by the pursuer, That his summons was not only founded upon the Act of Debtor and Creditor, but likewise upon the nature of his security; which was for repayment of the money; which clearly imports, that he being satisfied, either by intromission or otherwise, he should not bruik any longer the foresaid fishing. And this cannot be properly a wadset, seeing the wadsetter bears properly no hazard, but the same lies upon the granter of the wadset; as appears by his own obligement, the time of the redemption, to consign, not only the principal sum, but likeways the haill bygone annualrents. And 2do. Salmon-fishing is not such a casual rent, seeing it may be set in liferent tack; and so may be a certain rent. 3tio. There is a like reason to count for salmon fishing as for teinds of land; in respect of the Act of Parliament, bearing teinds of land and others. 4to. Whatever the defender's author has intromitted with, more nor his annualrent, ought to be ascribed to payment pro tanto; and so extinguish the wadset pro tanto.

The Lords found the wadset not to be a proper wadset, in regard of the conception thereof; and that the granter of the wadset was obliged to consign the haill byrun annualrents, that should happen to be resting the time of the redemption; notwithstanding of the eik to the reversion, whereby the wadsetter was put in the natural possession of the fishing: and therefore ordained the parties to count and reckon; but reserved to themselves after count, a quo tempore, the surplus of the rents should be imputed in sortem.

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