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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Countess of Erroll v The Earl of Erroll. [1675] 1 Brn 743 (27 July 1675) URL: http://www.bailii.org/scot/cases/ScotCS/1675/Brn010743-1717.html Cite as: [1675] 1 Brn 743 |
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[1675] 1 Brn 743
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: The Countess of Erroll
v.
The Earl of Erroll
27 July 1675 Click here to view a pdf copy of this documet : PDF Copy
The Countess having pursued the Earl to purge the little Mill of Esselmount, which was a part of her conjunct-fee lands, of a wadset which did affect the same, and whereof the wadsetter was in possession; which distress was referred to the Earl's oath of verity:—It was alleged, That the distress being factum alienum, and not a deed of this Earl, but of his predecessor, to whom he was heir, he was not in law obliged to give his oath of verity thereupon: and the legal course that the Countess must take, is first to pursue for possession
of the mill, upon her contract of marriage and infeftment; and, in case she be debarred by the wadsetter, then to have recourse upon the warrandice against the Earl, as representing. The Lords did repel the defence; and found, That the summons being referred to the defender's oath, that he certainly knew of the distress; and that the wadset was prior to the contract of marriage, and so would maintain the wadsetter's possession, if he were pursued.
Page 499.
The electronic version of the text was provided by the Scottish Council of Law Reporting
