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Scottish Court of Session Decisions >>
Lady Borthick v Scot. [1629] Mor 6422 (5 March 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor1506422-023.html Cite as:
[1629] Mor 6422
Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. IV.
Removing, how past from.
Lady Borthick v. Scot
Date: 5 March 1629 Case No. No 23.
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In a removing the defender founding upon a tack, which though reduced, yet since the warning, he had paid taxation of the same lands for the pursuer's relief, and at her command and direction; the Lords found this not relevant, unless it were alleged that he had paid it as part of the tack duty, because otherwise, if he had not been obliged to do it, it could not prejudge the pursuer, although she had desired him, no more than if she had desired any stranger to do it.
Fol. Dic. v. 1. p. 432. Durie.
*** See this case No 44. p. 914.
*** Spotiswood reports the same same:
1629. February 6. In an action pursued by the Lady Borthwick, against Sir William Scott of Goudilands, to remove from the lands of Pirntaton; alleged, no process upon the pursuer's warning, because it was prescrived by the act of Parliament 1579, the warning being made in April 1624; and the summons not being raised till May 1627; so that three years complete had intervened, Replied, the term whereunto the warning was made, was not till Whitsunday 1624, between which and his summons there were not three years. The Lords sustained the warning.
March 5. Afterwards in that same action, Goudilands having excepted upon a tack; which the pursuer replied was reduced; duplied, she could not quarrel his tack, because he offered to prove, that since the warning he had paid taxation of the same lands for her relief, and at her command and direction. Triplied not relevant, unless it were alleged, that he had paid it as a part of the tack-duty; for otherwise if he had not been obliged to do it, it would not prejudge her, although she had desired him, no more than if she had desired any stranger to do it. The Lords repelled the exception and duply, unless he would say as in the triply.
