Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Earl of Tulliebarden
v.
John Robertson

1637. March 21 and 25.

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Patrick, Earl of Tulliebarden, having right, by assignation, to the gift of William Earl of Tulliebarden's escheat and liferent, first disponed to the Earl of Annandaill, pursues John Robertson of Tenendrie, for the feu-duties of Tenendrie, set in feu by the said deceased William Earl of Tulliebarden to the defender's father, Alexander Robertson; or to see the ground poinded for the same. It was alleged by the defender, That he could not be pursued for the feu-duty resting by his father during his lifetime; but the executors of his father must be pursued for the same. To the which it was answered, Ought to be repelled; because he is heir to his father, and may be pursued, personali actione, for the bygone feu-duty, or the ground may be poinded for the same. Which the Lords sustained.—21st March 1637.

Thereafter it was alleged, No process, at the pursuer's instance, who is not infeft in the lands, but has only a disposition made to him by umquhile William, Earl of Tulliebarden, whereupon no infeftment followed. Whereunto it was answered, Ought to be repelled; because, albeit the pursuer be not infeft himself, yet, in respect his rights proceed from the disposition of Sir Archibald Stewart of Fumart, who is living, and standing infeft in the lands, whose procurators concur with the pursuer;—the Lords, in respect of the concourse, sustained the action.—25th March 1637.

2d MS. Page 87.