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Scottish Court of Session Decisions >>
The Laird of Innes v The Duke of Gordon. [1700] 4 Brn 490 (26 June 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Brn040490-0936.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
The Laird of Innes v. The Duke of Gordon
Date: 26 June 1700
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The Laird of Innes pursues the Duke of Gordon for exhibition of some writs belonging to Mr Harry Buchan; and whereunto Innes has right by progress:
Against which it was Alleged, 1mo. No process till wakened; the process neither having a partibus nor any judicial act marked upon it within the year, and so is sleeping. 2do. No process on the confirmed testament, because the sum, being heritable, was not confirmable.
Answered to the first,—That there is an out-giving by Innes, the pursuer's advocate, to the Duke's, marked on the process, which is eight days within the year and day; and though, by their keeping it up longer than six days, its return is without the year, yet the out-giving is a sufficient interruption to stop the annual prescription and sleeping; et non debet lucrari ex proprio dolo et culpa. To the second, It is jus tertii to the defender; 2do. The assignation makes it moveable; 3tio. The bygone annualrents are moveable and confirmable; and so his title and interest in these is sufficient to sustain the exhibition, reserving all defences against delivery.
Replied,—Where there is no judicial signature, (as here,) the instance must perish; and was so found in the reduction upon an inhibition pursued by Cockburn against Sir George Hamilton: And, as to the second, The confirmation can no more be a title here than it would be if he were pursuing for exhibition of the rights of lands.
