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Scottish Court of Session Decisions >>
James Scott of Bowiiill v Andrew Ker of Littledean. [1695] 4 Brn 254 (00 January 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040254-0569.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Scott of Bowiiill v. Andrew Ker of Littledean
1694 and
1695.
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1694. February 6.—Between James Scot of Bowhill and Andrew Ker of Littledean, in a count and reckoning for the tack-duty, the question was, On whom the loss or hazard of the bygone rests, lying in the tenant's hands, should fall; seeing Littledean had dispossessed him before the expiration of his tack, and arrested the rents, and caused the tenants suspend against Bowhill; and so he was hindered in the uplifting of them by Littledean himself.
The Lords, having considered that the rests given up by Bowhill as owing, were very large,—viz. £9000 Scots; and that, quoad years long preceding his being dispossessed, he was in mora, not having tempestivè sought them in,—they found he ought to have allowance of the rests due the two immediate years preceding his dispossession; and that these behoved to fall upon Littledean, because Bowhill had not a competent time for in-gathering of these; but, quoad the rests of preceding years, that these behoved to fall to Bowhill's own share, and he liable to count for them; as also, for what he was in the natural possession of, and had in mains: and found, that Littledean behoved to ascribe what he had intromitted with of these rents, at his entry to the possession, to his bygone rests, to exoner Bowhill pro tanto, and not to his current rent; and for that effect ordained his discharges to be produced, that it might appear for what rent they were granted.
Vol. I. Page 602.
February 28.—In the action between Ker of Littledean and Scot of Bowhill, mentioned 6th February current, the Lords found, Seeing the advocate only offered to improve the precept of warning made use of by Littledean, as false, there was no need to cause Bowhill consign; though this may be a method to evacuate all consignations where improbation is proponed by way of exception, by the king's advocate's insisting only ad vindictam publicam; and so he is not bound to consign.
Vol. I. Page 618.
1695. January 25.—James Scot of Bowhill against Andrew Ker of Littledean, mentioned 6th February 1694. The Lords found the intimation made by Littledean to Bowhill, at Sneip, not sufficient,—Bowhill proving he had not his domicile there, but dwelt with his wife and family then at Kelso: but found his voluntary removing from Littledean's lands at the Whitsunday, by leaving the houses void, and taking off his bestial, probable prout de jure; though some thought it only probable scripto et juramento, as being to take away a written tack. But they also, before answer, allowed Bowhill to prove that his removal was only from one roum to another, for better grazing; that the Lords might see quo animo he removed, whether in obedience to the warning or not.
