Scottish Court of Session Decisions

Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Lord Lovat and Lord Kintaill
v.
The Lord Macdonald

Date: 14 June 1671

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This was an action for count and reckoning upon the act of Parliament 1661, against a proper wadsetter, for repayment of the superplus of the mails and duties of the lands given in wadset, more than will perfect the annualrent of the sum whereon the wadset is made redeemable. This was a piece of land wadset nearseven score years ago, by one of my Lord Lovat's predecessors, to whom he instructs himself to be heir by progress, by production of retours lying in the process; and the right of this reversion he had assigned to my Lord Kintaill, Sea-forth's eldest son; whereupon arose the first dilator, no process at Kintaill's instance, because no assignation produced.

Answered,—They insisted then for my Lord Lovat. Then alleged, no process at Lovat's instance, because the method prescribed by the said act of Parliament, whereon the summons is founded, was not kept, in so far the debtors thereby are ordained to offer sufficient security to the wadsetter, for payment to him of his annualrent during the not redemption, before the creditor-wadsetter be obliged to renounce his possession; or if he choose rather to retain the possession, then to restrict himself to the annualrent of his money, and be accountable to the debtor for the superplus; but ita est this was not used; ergo, he cannot count for the superplus; and as to that pretended instrument whereby, in 1661, M'Donald is required to renounce his possession of the said wadset lands, it is so defective, and so full of nullities, that no weight imaginable can be laid thereon; for 1mo, It makes no mention of any procuratory produced from my Lord Lovat. 2do, It is made at his dwelling-house; whereas it is offered to be proven, that at the time of the date of the instrument he was out of the country, and so it should have been done by letters of supplement. 3tio, There is no security offered, but allenarly a bond subscribed by this Lord Lovat and his curators, (for he was then minor;) which was nowise sufficient security, which is mentioned in the act of Parliament, being in effect no more nor what he had before, seeing this Lord Lovat was heir to his predecessors, and so, eo nomine, was bound to him already; neither will any man in sense or reason esteem a minor's bond, with consent of his curators, (being subject to revocation and nullity on that head,) sufficient security. 4to, The said instrument is yet null, in so far as it not only requires my Lord M'Donald to quit the possession of the wadset lands, but even to quit his real wadset right itself, expressly contrary both to mind and tenor of the said act of Parliament. 5to, Esto he were liable to count for the superplus, yet in effect there would be none; seeing, by the same act of Parliament, all losses and public burdens, as quarterings, cesses, waste lands, depredations, &c. which the wadsetter-creditor can instruct he has sustained, must be allowed to him; which being allowed, there will be no remainder, because it is notour how great a sufferer the defender in the late civil commotions was. The first two of consent went to interlocutor. To the third it was answered, that there needed not sufficient caution to be offered, but quævis interpellatio satisfacit actui, since it requires only caution in the general, without condescending. Item, The said act 1661 being a correctory law, it should not be ampliated in these things, wherein it is exorbitant from the common law. 2do, His own bond was very good surety, seeing he offered to infeft him in five or six score of chalders of victual he had beside. To this it was answered, This yet made no security, because it was all apprised from him. Vide 7th Feb. 1679. To the fourth; It must be imputed to the ignorance of the notary, and so must not prejudge me. To the fifth, M'Donald must condescend upon such losses, in the terms of the act of Parliament, as, communibus annis, made him that he received not the annualrent of his money, else he says nothing; but for this wadset, the same is so advantageous, that when his just losses that he can qualify are allowed him, there will be a considerable excrescence above the annualrent, as it is restricted by law to six per cent.

For the first two points, the same being reported, the Lords found, that the instrument was not sustainable, unless the pursuers would produce a procuratory granted to the requirer for that effect; as also, offer them to prove that the time of the said instrument he was within the country, seeing, if he had been furth thereof, he should have raised letters of supplement.

Advocates' MS. No. 174, folio 99.