Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Sir George Hamilton
v.
Lieutenant-colonel Erskine of Carnock

Date: 15 June 1705

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Sir George gives in a complaint to the Lords, bearing, That though he be in possession of the lands of Tulliallan, and thereby has right to the maills and duties thereof, yet the said Colonel Erskine interrupts him therein. And when his servants, in March and April last, were carrying the corns to Clackmannan, where he had sold them, the Colonel's servants fell upon them, seized the farms, beat the men, and wounded some of them to the effusion of their blood; and therefore craved the said Colonel might be fined and punished for his contempt of the Lords' authority; who had, upon a former riot of this kind, committed in 1703, decerned him to restore the corns so unwarrantably intromitted with.

Answered for the Colonel,—That the lands of Tulliallan did truly belong to the Earl of Kincardine; and he having, at a roup of that estate in 1700, bought these lands, he was the only proprietor. It is true, Sir George, and Sir Robert Miln his author, had a right in these lands for £30,000 Scots; and, quoad the annualrent of that sum, he was content to prefer him, till, on his declarator of extinction, he instructed he was paid of the whole; but that Sir George, under that pretence, had intromitted with the haill rents, and so he, as heritor, might lawfully interrupt him. And though he was formerly decerned to restore, yet that must be understood habili modo et in terminis juris, in so far as concerns Sir George's annualrent of the foresaid sum; but not to give him a total possession of the whole lands of Tulliallan, seeing his own decreets bear only a preference quoad his annualrents.

Replied,—That, by a contract in 1678, betwixt Sir Robert Miln and the late Earl of Kincardine, Sir Robert did restrict his rights by Lindsay's and Wood's apprisings on the lands of Tulliallan, to £30,000, ex gratia,—with this irritancy, That, if it were not paid him betwixt and Martinmas 1685, he should have the irredeemable property, on paying in £10,000 Scots more. But the Earl's affairs going into disorder, they were so far from redeeming him within that time, that they have never offered it now, by the space of twenty years since; so that Sir George is the uncontroverted, heritable, and irredeemable proprietor; and is willing to instruct that he has paid more than the £10,000 of reversion, in purchasing other rights on the said estate. And there was no necessity of a declarator of the expiration and commission of the irritancy, because the reversion being granted by way of favour, it needed no declarator, but was, ipso jure, incurred. And the Colonel was in pessimo dolo to stop Sir George's possession, seeing, by the Lords' decreet of restitution, on a former complaint made the last winter, the Lords discharged him to invert Sir George's possession.

The Lords found the interruption made by the Colonel to Sir George's total possession, unwarrantable; and discharged the same to be done via facta in time coming, till the point of right betwixt them were determined; and ordained Sir George to give in a condescendence of the damage he had sustained by this riotous opposition; reserving to themselves to consider what the Colonel's contempt of their authority deserves, at advising of the cause.

Vol. II. Page 276.