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Scottish Court of Session Decisions >>
Sir Patrick Nisbet of Dean v The West Kirk Poor. [1682] 3 Brn 423 (00 January 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Brn030423-0616.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1681 and 1682.
Sir Patrick Nisbet of Dean v. The West Kirk Poor
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December 9.—The case betwixt Sir Patrick Nisbet of Dean and the Poor of the West-Kirk Parish, anent their rights on Alexander Sked's lands in the Water of Leith, being reported; the Lords repelled the first answer made for the Kirk-session, against one of Sir Patrick's and his son Hary his seasines produced, viz. it was null, because it did not bear production of the heritable bond, the warrant thereof; and that in respect it was granted propriis manibus: and, before answer to the second answer made for the Kirk-session, ordain their procurators to condescend on the particular acts of dole, whereby Sir Patrick Nisbet, being an elder of the kirk, and so their trustee, postponed and obstructed the Kirk-session's diligence, to prefer himself. As also, before answer to the third, appoint parties to be heard before the reporter, whether the time of the dating of the confirmation of the base infeftment,—(which was subscribed before Sir Patrick's confirmation; but he, being superior himself, did put in a date posterior to the confirmation which he gave to his son;)—or the time of the delivery of the said confirmation, ought to be respected: which delivery was after his son's confirmation some days; and he ought not to have gratified and preferred so conjunct a person as his son, to the prejudice of the poor.
But they had not required him, or taken instruments against him, on the true date of their requisition; because they were to get it gratis from him, and he might have demanded a composition. Vide infra, 18th Jan. and 18th Feb. 1682.
Vol. I. Page 165.
1682 January 18.—The case betwixt Nisbet and the Poor of St Cuthbert's Parish, (9th December 1681,) being reported by Pitmedden; the Lords sustained the Poor's condescendance, and, before answer, admitted it to probation by the oaths of the elders and others.
Vol. I. Page 170.
February 18.—Between the Poor of the West-Kirk Parish and Sir Patrick Nisbet, (9th December 1681;) the Lords having advised the depositions of the witnesses for proving the condescendance, with Sir Patrick's oath, they found he used indiscreet means for getting himself preferred to the Poor of the West-kirk in diligence, though an elder; and therefore, though his right and confirmation was prior in date to the Poor's, yet they ordained the Poor to come in pari passu with him, and the maills and duties to be divided equally betwixt them, conform to their several rights and infeftments upon Alexander Sked's lands on the Water of Leith.
