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The Laird of Rentoun, Justice-Clerk v Home, Portioner of Westrestoun. [1670] Mor 3086 (29 January 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Mor0803086-007.html Cite as:
[1670] Mor 3086
The Laird of Rentoun, Justice-Clerk v. Home, Portioner of Westrestoun
Date: 29 January 1670 Case No. No 7.
There being a servitude upon a whole abbey prestable to the forester, he having the lands himself, and disponing or excambing the same without reservation of the servitude, the Lords found the lands free thereof.
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In a declarator at the Justice-Clerk's instance, as having right to so many threaves of corn and straw out of each husband-land of the abbay of Coldingham, as heir to—Ellums, who were foresters to the abbacy; there was a defence proponed for Home, That his lands of Westrestoun were given in excambion with the pursuers predecessors, for certain lands which were a portion of Rentoun, and that without reservation of any such servitude. It was replied, That these lands of Rentoun being liable to that servitude before the excambion, ex natura rei, the lands of Westrestoun, which were excambed, behoved to be liable to that same servitnde as these lands of Rentoun were.——The Lords having considered the contract of excambion, and charter following thereupon, which did bear, that the pursuers' predecessors, who did excamb these lands of Westrestoun, had disponed the same to be holden blench, reddendo denarium pro omni alio onere; and that, when these lands belonged to the Lairds of Rentoun, who were foresters, they could not be liable to that servitude, quia res sua nemini servit, they found the allegeance relevant and proven, and therefore assoilzied the defender.
