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Scottish Court of Session Decisions >>
Jean Denham and William Wallace her Husband for his Interest, Supplicants. [1746] Mor 7435 (1 July 1746)
URL: http://www.bailii.org/scot/cases/ScotCS/1746/Mor1807435-155.html Cite as:
[1746] Mor 7435
Jean Denham and William Wallace her Husband for his Interest, Supplicants
Date: 1 July 1746 Case No. No 155.
A Bailie in that part was appointed to receive a resignation, and grant infeftment within burgh, there being a vacancy of Magistrates.
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Jean Denham wife to William Wallace writer in Edinburgh, had formerly been married to Gilbert Stewart of Ballouchtoull, by her contract of marriage with whom she was entitled to a liferent out of certain tenements in Edinburgh, and wanting to be infeft therein, she, with concourse of her present husband, presented a bill in February 1746 to three Ordinaries on the Bills, as the Court of Session was not then sitting, craving, that in default of a Magistracy of Edinburgh, occasioned by there having been no election at Michaelmas last, the city being then in the power of the rebels, the Lords would authorise some person to receive the resignation, and grant infeftment thereupon, in terms of the procuratory contained in her contract of marriage, and grant warrant to the city-clerks to expede and record the infeftment, as the law directed.
This bill was not proceeded on till the Session, when it was reported; and a difficulty occurred, how far it was in the power of the Court to supply the defect; for though in other cases, where an office of the law had been vacant, the Lords had supplied it, as naming a Sheriff, yet here the defect was somewhat more; and it was prayed they would create a superior, that he might give infeftment.
Pleaded for the petitioners, That by the spirit of the law, wherever any person was entitled to an infeftment, there was a method for his obtaining it, notwithstanding the superior's refusal, or any defect in his right; he might be charged with horning, or if he was not infeft, the vassal might apply to the next superior.
As this petitioner wanted nothing but a solemnity to complete her right, it would be very hard if it were not in the power of the Supreme Court of the nation to give her remedy.
The Lords had been in use to name Sheriffs, when they were wanted for infeftments; and the present case did not differ from that, for Magistrates of towns were no more than Commissioners for resignations, as in the hands of the King, who was the immediate superior of burgage holdings, as appeared by the stile of resignations, which run in these terms, “I, by these presents, make, constitute, and appoint——my lawful and undoubted procurator for me, and in my name lawfully to resign. &c. as I, by these presents, resign, surrender, and simpliciter upgive and overgive all and hail, &c. in the hands of the Provost or any other of the Bailies of——for the time, as in the hands of our Lord the King, immediate lawful superior thereof.”
The Lords nominated and appointed Gavin Hamilton, late one of the Bailies of Edinburgh, for receiving the resignation.
Reporter, Dun.
Fol. Dic. 3. p. 348. Falconer, v. 1. No 124. p. 151.
